Characteristics of EU Law: Understanding Immediacy, Direct Effect, and Primacy

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[...] (many guarantees in France of fundamental rights) The recognition of primacy over infra-constitutional norms > There is no problem in French law regarding infra-constitutional norms, a very well-recognized principle The principle of primacy does not raise any difficulties The problem only arises for the constitution BUT : - This recognition of primacy is still based on the constitution and not on treaties - Here, this is opposed to the EU The CJEU judgment establishes that national rights should not seek a foundation in the constitution to explain the respect of the principle of primacy = Contrary to the principle of autonomy of union law (Costa v. ENEL) The French position is contrary to the principle of autonomy of union law > 2 constitutional provisions in French law found the primacy: - Article 55 Primacy For a long time, article 55 has served as the foundation of community law) - Article 88-1 Engagement of the French Republic through treaties Everything has been shifted to this provision) The article was added during a constitutional revision 1. [...]

[...] Cohn-Bendit But for years, the Council of State tried to soften or circumvent this binding judgment Jurisprudential reversal on October of a decision of the Council of State rendered in assembly Mme Perreux Reason for this reversal: - Impact of the signature and entry into force of the Treaty of Lisbon - The Council of State has always been resistant in its origins to EU law - The CC's decision of 10 June 2004 consecrates a constitutional requirement for the transposition of directives The Council of State describes itself as common law judge applying Union law and recognizes the possibility for a litigant to rely on precise and unconditional provisions in support of an appeal against an administrative act, even an individual and non-regulatory one' Section 3 - Primacy > Definition: primacy is the character of a norm that has a prior authority over national rights and takes precedence over them in case of conflict This is therefore a hierarchical modality for resolving conflicts of norms The European dimension of the principle: an absolute primacy The affirmation of the principle 1. [...]

[...] For example, the Court of Justice of the EU cannot quash a judgment rendered by a national jurisdiction Solution to this challenge = preliminary ruling, allows to make a link between the Court of the EU and the national judge II- The national dimension of the principle: a relative primacy > This scope of the principle is rather relative from the side of the Member States = Relative Primacy > Problems in certain EU countries - The German Constitutional Court has never aligned itself with the assertion of an unconditional primacy (judgment of 30 June 2009) 'the Federal Republic of Germany does not recognize an absolute primacy of the validity of EU law due to constitutional objections' - The Polish Constitutional Tribunal has declared incompatible with its law the values of the rule of law enshrined in Article 2 TEU and Article 19 TEU (judgment of 7 October 2021) Judgment of 5 June 2023 European Commission v. Republic of Poland, the Court of Justice has ruled that the 2019 justice reform was contrary to EU law Note that member states are not authorized to invoke their constitutional law to exempt themselves from European treaty law > But then how is it in France? [...]

[...] It is therefore logical from the EU's point of view that the law of the union postulates and privileges legal monism > Confirmation by jurisprudence - It is what emerges from the Costa v. ENEL judgment: 'own legal order integrated into the legal system of the Member States' - Another important judgment Simmenthal judgment of 9 March 1978: 'Community law is an integral part of the legal order applicable in each of the territories of the Member States' The scope of the principle > To succeed in imposing on Member States the recognition of immediacy, the EU has tried everything? [...]

[...] The extent of primacy > Principle with a general and absolute scope : - Primacy applies to all norms stemming from EU law (original law, derived law, external agreements?) - Primacy imposes itself on all national norms of member states (internal legal norms) > Even constitutional norms are concerned For the Court, this is logical : - Judgment of 17 December 1970 The constitution of a member state protects fundamental rights but these norms cannot question the European Community law - Judgment of 6 May 1980 Commission v Belgium: a member state cannot 'invoke internal difficulties or provisions of its national legal order, even constitutional, to justify non-compliance with obligations and deadlines resulting from Community directives' The implications of this principle 1. [...]