REPORT on the implementation of the principle of primacy of EU law

–   having regard to Articles 1, 2, 4 and 19 of the Treaty on European Union (TEU),

–   having regard to Articles 258, 267 and 344 of the Treaty on the Functioning of the European Union (TFEU),

–   having regard to Declaration No 17 concerning primacy, annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon, signed on 13 December 2007[10],

–   having regard to the case-law of the Court of Justice of the European Union (CJEU),

–   having regard to its resolution of 21 October 2021 on the rule of law crisis in Poland and the primacy of EU law[11],

–   having regard to its resolution of 19 May 2022 on the Commission’s 2021 Rule of Law Report[12],

–   having regard to the study of July 2022 entitled ‘The primacy of European Union law’, commissioned by its Committee on Legal Affairs and published by its Directorate-General for Internal Policies of the Union[13],

–   having regard to the study of 27 April 2021 entitled ‘Primacy’s Twilight? On the Legal Consequences of the Ruling of the Federal Constitutional Court of 5 May 2020 for the Primacy of EU Law’, commissioned by its Committee on Constitutional Affairs and published by its Directorate-General for Internal Policies of the Union[14],

–   having regard to Rule 54 of its Rules of Procedure, as well as Article 1(1)(e) of, and Annex 3 to, the decision of the Conference of Presidents of 12 December 2002 on the procedure for granting authorisation to draw up own-initiative reports,

–   having regard to the joint deliberations of the Committee on Legal Affairs and the Committee on Constitutional Affairs under Rule 58 of the Rules of Procedure,

–   having regard to the report of the Committee on Legal Affairs and the Committee on Constitutional Affairs (A9-0341/2023),

A.  whereas, in accordance with Article 2 TEU, the EU is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities, which are common to the Member States; whereas respect for such values is a prerequisite for accession to the Union and an obligation for Member States; whereas respect for EU law entails compliance with EU primary and secondary law, and thereby the core principle of primacy of EU law; whereas, according to Article 4(3) subparagraph 2 TEU, Member States must take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union;

B.  whereas, as a community based on the rule of law, the EU is dependent on the effective and uniform application and enforcement of its law by the CJEU and Member States’ courts; whereas such effectiveness and uniformity can only be ensured if EU law takes precedence over diverging national law in areas where EU law is applicable; whereas the principle of primacy therefore constitutes a cornerstone of the EU’s legal order, which is essential for the EU’s functioning;

C.  whereas the principle of primacy of EU law is not just a legal doctrine but also a reflection of the political and economic integration of the EU; whereas, in the same spirit, the principle of primacy contributes to the creation of an ‘ever closer union among the peoples of Europe’, as envisaged by the Treaties; whereas the primacy of EU law is also intrinsically linked to the principle of equality before the law, as it guarantees equal protection of the rights conferred by EU law to all EU citizens;

D.  whereas the principle of primacy is not explicitly enshrined in the Treaties, but has developed over decades through the case-law of the CJEU; whereas, in Declaration No 17 concerning primacy, annexed to the Treaty of Lisbon, the Conference recalls that, in accordance with the well-settled case-law of the CJEU, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of the Member States, under the conditions laid down by the said case-law;

E.  whereas, ever since its landmark Costa v E.N.E.L. judgment of 15 July 1964 in Case C-6/64[15], the CJEU has on numerous occasions reaffirmed that EU law takes precedence over the law of the Member States, regardless of the rank of the national legislation or the time of its adoption; whereas the principle of primacy therefore applies to any provision of domestic law, including provisions of a constitutional nature, in accordance with the well-established case-law of the CJEU; whereas, by virtue of the same case-law, the principle also applies to international agreements concluded by Member States where those agreements are covered by the sphere of competence of the EU;

F.  whereas the EU legal order is rooted in public international law treaties, which are enacted through national acts of ratification; whereas the EU legal order and each Member States’ legal order are both applicable within the territory of a Member State; whereas in case of a conflict between provisions of EU law and national law, a conflict rule is needed; whereas the principle of primacy is such a conflict rule;

G.  whereas the principle of primacy does not imply a hierarchy between the legal orders of the EU and the Member States, but rather requires that, in the event of conflicting provisions of EU law and national law, national authorities and courts do not apply or enforce those national provisions, and that national authorities and courts interpret their national law in conformity with EU law; whereas it furthermore stems from the principle that conflicting national provisions are to be disapplied, repealed or amended to ensure the full compliance of national law with EU law;

H.  whereas the continuous dialogue between the CJEU and national constitutional or supreme courts regarding the interpretation of the principle of primacy of EU law results from different understandings of the remit of the EU and national legal orders, such as regarding the division of competences between the two and who has the ultimate authority to define whether a matter falls under the scope of powers conferred by the Member States to the EU;

I.  whereas, in accordance with Article 4(2) TEU, the EU must respect the national identities of Member States, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government; whereas the relationship between the EU legal order and national legal orders is based on the principle of conferral as enshrined in Article 4(1) TEU; whereas the principle of primacy of EU law only applies within the scope of EU law;

J.  whereas the case-law establishing the principle of primacy has been widely accepted by the Member States; whereas certain national constitutional and supreme courts have nevertheless argued the existence of certain limits to the principle of primacy, which mostly concern the respect for EU competences, the national constitutional identity and the level of protection of fundamental rights; whereas such interpretations by national constitutional or supreme courts can be considered as reservations over the principle of primacy; whereas one national constitutional court has explicitly contested the principle of primacy of EU law with regard to national constitutional law; whereas several other constitutional or supreme courts have implicitly contested the principle;

K.  whereas the CJEU and the national constitutional or supreme courts both have their legitimate roles to play in determining the scope of the respective legal orders; whereas national courts and the CJEU can, under the preliminary reference procedure, enter into a constructive dialogue on conflicts between the national legal order and the EU legal order;

L.  whereas, pursuant to the first paragraph of Article 267 TFEU, the CJEU has jurisdiction to give rulings on all questions concerning the interpretation of the Treaties and the validity and interpretation of acts of EU institutions, bodies, offices or agencies in the context of the preliminary reference procedure; whereas the CJEU therefore has exclusive competence to provide the definitive interpretation of EU law;

M.  whereas the third paragraph of Article 267 TFEU obliges national courts of last instance to initiate a preliminary reference procedure if such a question is raised; whereas national courts of last instance may refer additional preliminary questions to the CJEU in the event that the national court is not able to decide the case at hand on the basis of the previous answer; whereas, pursuant to Article 344 TFEU, the Member States undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for therein;

N.  whereas, in accordance with Article 258 TFEU, the Commission, as guardian of the Treaties, has the power to open an infringement procedure before the CJEU against a Member State that has failed to fulfil its obligations under the Treaties, and whereas, in the light of the case-law of the CJEU and Declaration No 17 concerning primacy annexed to the Treaty of Lisbon, that procedure is also applicable in the event of a breach of obligations resulting from the principle of primacy; whereas pursuant to Article 40 of the Statute of the CJEU, and in accordance with Rule 149(4) of the Rules of Procedure of the European Parliament, Parliament can intervene in support of the Commission in such infringement proceedings under Article 258 TFEU;

O.  whereas, in accordance with Article 7 TEU, the Council may decide to suspend certain of the rights deriving from the application of the Treaties to a Member State, if the European Council has determined the existence of a serious breach of the values referred to in Article 2 TEU by the Member State in question;

1.  Reiterates that, by their accession to the EU, the Member States have adhered to the entire body of EU law, including the case-law of the CJEU, and to all the EU values and principles as referred to in Article 2 TEU, which they thus share and have undertaken to respect at all times; recalls that this includes, inter alia, the principle of primacy, which is crucial for ensuring the consistent application of EU law throughout the Union and guaranteeing equality of EU citizens before the law;

2.  Acknowledges that the protection of core values and principles such as the effective protection of human rights, of democracy and of the rule of law is a joint task for the EU legal order and the national legal orders of the Member States, and for the courts tasked with the interpretation of these legal orders;

3.  Stresses the need to ensure that the common policies and objectives of the EU are effectively implemented across all Member States, ensuring a level playing field and promoting mutual trust among Member States;

4.  Reiterates that, although it is not explicitly enshrined in the Treaties, the principle of primacy of EU law applies to, and its effects are binding on, all bodies of the Member States at all times; underlines the effect of Declaration No 17 annexed to the Treaty of Lisbon, concerning primacy;

5.  Recalls that the principles of primacy of EU law or that of the precedence of international law over national law are present in the constitutional order of several Member States;

6.  Recalls that the national identity of the Member States is recognised in Article 4(2) TEU, which includes their constitutional structures; reiterates that in practical terms, the approach of the CJEU to Article 4(2) TEU is informed by the analysis of common European values, as referred to in Article 2 TEU; points out, therefore, that references to Article 4(2) TEU by national constitutional or supreme courts should never be used to compromise common European values; underlines that the application of Articles 4(2) and 5 TEU involves an active dialogue between national courts and the CJEU; recalls that it is up to the CJEU, given its exclusive competence to provide the definitive interpretation of EU law, to define the scope of the principle of primacy based on the application of the EU Treaties;

7.  Emphasises that the vast majority of the courts of the Member States apply  the principle of primacy of EU law; notes that, since the Costa v E.N.E.L. judgment of 15 July 1964, there has only been a very small number of cases in which a national court has refused to draw the consequences of a preliminary ruling, compared to the large overall number of preliminary references;

8.  Points, however, to the negative consequences of the decisions of national constitutional or supreme courts that challenge or fail to apply the principle of primacy of EU law; stresses that if every national constitutional or supreme court were able to decide on the limits of the primacy of EU law, the effectiveness and uniformity of EU law would be seriously jeopardised, as would, consequently, the guarantee of equal treatment for citizens and businesses across the Union; underlines that challenging CJEU judgments on the basis of national constitutional reservations concerning respect for EU competences or the national constitutional identity without referring preliminary questions on the interpretation of these judgments to the CJEU might undermine its authority; believes that the case-law of any national constitutional or supreme court challenging the principle of primacy may also encourage constitutional or supreme courts of the other Member States to challenge the primacy of EU law;

9.  Recalls the diversity among the legal traditions specific to each Member State; believes that such differences are one of the contributing factors to national constitutional or supreme courts challenging the rulings of the CJEU; emphasises that the CJEU establishes general principles based on common constitutional traditions of Member States’ legal orders;

10.  Underlines that a constructive dialogue between national constitutional or supreme courts and the CJEU is beneficial to the development of EU law as it can serve as a way of solving tensions between the European and national legal orders regarding the division of competences; stresses that such dialogue should be constructive and does not legitimise any disregard for the decisions of the CJEU;

11.  Is of the opinion that the preliminary reference procedure plays a crucial role in fostering a free and constructive judicial dialogue and is a key instrument for solving conflicts between national courts of last instance and the CJEU; invites national constitutional and supreme courts to use the preliminary reference procedure when appropriate; emphasises that, since it ensures the uniform interpretation of EU law, the preliminary reference procedure is a prerequisite for the consistency and autonomy of the EU’s legal order; recalls that, in certain cases, the CJEU has already shown a willingness to change its reasoning in a second preliminary ruling requested by the same national constitutional court that had initiated the first preliminary reference, which demonstrates that this procedure provides for an effective dialogue between courts; considers that the conflicts between certain national constitutional or supreme courts and the CJEU might testify to a lack of dialogue in the course of proceedings;

12.  Welcomes the initiation of the legislative procedure aimed at changing Protocol No 3 on the Statute of the CJEU; believes that a more balanced distribution of labour between the Court of Justice and the General Court should give space for a more intense judicial dialogue between EU and Member States’ courts and tribunals, enabling them to resolve persisting tensions surrounding the principle of primacy of EU law;

13.  Welcomes all existing informal mechanisms that allow for the strengthening of judicial dialogue between national constitutional or supreme courts and the CJEU, such as the Meeting of Judges which brings together the President of the CJEU and the presidents of national constitutional and supreme courts, and the Judicial Network of the EU platform, created on their initiative in 2017;

14.  Emphasises that transparency of decision-making as a democratic principle also applies to the judiciary and fosters public trust in the judicial process; believes that public access to court documents, files and records contributes to the transparency and accountability of the judiciary in the Member States and at EU level;

15.  Emphasises that the executive and legislative bodies of the Member States also bear a responsibility to ensure that their respective Member State respects EU law; stresses in this regard that executive and legislative bodies should take action to amend or withdraw legal acts that have been found to be in breach of EU law;

16.  Notes that the proper implementation of EU law and CJEU case-law is essential for the respect of the principle of primacy of EU law; calls on the Commission, therefore, in its role as guardian of the Treaties, to build on the annual report on monitoring the application of EU law by introducing an analysis of the state of play of the implementation of CJEU case-law, including a scoreboard of compliance with CJEU judgments in the Member States; calls on the Commission also to initiate the appropriate proceedings against Member States that fail to implement EU law, including infringement procedures;

17.  Recalls the duty of the Commission, as guardian of the Treaties, to closely monitor the rulings of national courts with regard to the primacy of EU law and to  keep Parliament  informed of any action taken in response; calls on the Commission to provide full information on any possible conflict, in the light of its responsibility to Parliament under the Treaties;

18.  Calls on the Commission to initiate infringement procedures under Article 258 TFEU in response to judgments of national constitutional or supreme courts that challenge the principle of primacy and thereby result in a breach of EU law, when other forms of dialogue fail; suggests, moreover, improving the effectiveness of infringement procedures;

19.  Strongly recommends that the CJEU and national constitutional or supreme courts engage in regular informal dialogue, alongside the judicial means of preliminary reference; encourages the establishment of a forum in which those courts can be brought together, to this end, in the spirit of mutual cooperation with the aim of encouraging harmonisation of the interpretation of EU law across all judicial systems; encourages the individual Member States and the Commission to support these efforts; encourages academic institutions and legal bodies within the EU to incorporate comprehensive modules on the principle of primacy in their curriculums with the aim of fostering a deeper understanding and appreciation of this foundational principle among future legal practitioners and policy-makers;

20.  Emphasises that the key to fruitful dialogue and proper implementation of the principle of primacy of EU law is adequate capacity building; calls, therefore, for use to be made of the EU programme offering thorough training targeted at the Member States’ judicial systems, including judges, magistrates, lawyers, prosecutors and those working in the public sector, as well as at policy-makers, both at national and EU level, in order to encourage a better understanding of the primacy of EU law, the EU legal order in general and the ramifications of the incorrect implementation of EU law and CJEU case-law;

21.  Notes that in some cases the disagreement of national constitutional or supreme courts with the decisions of the CJEU relates to the protection of fundamental rights, specifically when national courts interpret the fundamental rights granted by EU law to be less protective than the fundamental rights granted by the national constitution; considers that the Union’s accession to the European Convention on Human Rights could reduce the potential for conflicts in this area by introducing further safeguards protecting the fundamental rights of EU citizens and residents and provide an additional mechanism for enforcing human rights, namely the possibility of lodging a complaint with the European Court of Human Rights in relation to a violation of human rights derived from an act by an EU institution or a Member State implementing EU law, which falls within the remit of that court; calls on the Commission and Member States to ensure the swift conclusion of this accession process;

22.  Notes that Member States under an Article 7 procedure for their systemic undermining of the rule of law have strategically questioned the principle of primacy of EU law for political reasons; considers such cases of systemic undermining of the rule of law to be a threat to the legal order in the Member State concerned and to sincere cooperation among Member States, as well as a failure of that Member State to fulfil its Treaty obligations; reiterates its call on the Commission to make full use of its powers to address the existing and potential breaches of the values enshrined in Article 2 TEU; stresses Parliament’s determination to initiate the procedure referred to in Article 7 TEU in cases of a clear risk of a serious breach by a Member State of EU values and reiterates its call on the Council to make concrete and credible efforts to advance all ongoing Article 7 proceedings;

23.  Notes that a number of candidate countries are currently in the process of accession to the EU; welcomes, in this context, the fact that the accession process includes capacity building regarding the EU’s legal order and the application of EU law; proposes the establishment of a regular structured dialogue between the CJEU and the national constitutional or supreme courts of candidate countries;

24.  Recommends that, in the event of a revision of the Treaties, the principle of primacy be included as an explicit Treaty provision; recalls that the precedence of EU law was explicitly laid down in the Treaty establishing a constitution for Europe; regrets the fact that this primacy clause was not included in the Treaty of Lisbon;  

25.  Instructs its President to forward this resolution to the Council and the Commission.