No, EU law does not always take precedence

In the dispute with Poland, one argument keeps cropping up: EU law is above national law, even above the constitution. Commission head von der Leyen presents this as certain – but lawyers see it differently.

The supremacy of EU law is still not regulated in the EU treaties, emphasises Ch. Rath, the legal policy correspondent of the taz.

The assumption that EU law always takes precedence is based exclusively on rulings by the European Court of Justice (ECJ), which has held this view since 1964.

The Luxembourg judges believe that a legal community such as the EU (and then the EC) can only function if Community law takes precedence over national law. Priority must therefore also be given to national constitutional law.

The current president of the ECJ, the Belgian Koen Lenaerts, recently reaffirmed this. Without the primacy of EU law, the equality of citizens would no longer be guaranteed.

But this is a weak argument. Formally, equality before the law may exist in the EU. In practice, however, it does not. German citizens enjoy far more rights than Romanians or Poles.

Karlsruhe has much more power

And the rulings of the Federal Constitutional Court have a very different effect than – say – the rulings from Portugal. If Karlsruhe says no, it can shake the entire EU.

We have seen this several times during the euro crisis. It is partly because nothing works in the EU without Germany – and because the Bundestag and the Federal Government feel bound by rulings from Karlsruhe.

However, the Federal Constitutional Court has a very special attitude towards EU law. In principle, it recognises its primacy, but with important exceptions and deviations in detail.

EU law takes precedence only in those areas in which the EU states have granted Brussels competence. However, there is no “competence competence”, which has to be examined in each individual case – also in Karlsruhe.

Poland’s head of government, Morawiecki, is now also invoking these German reservations. The German government denies that the Polish interpretation of German legal practice is correct.

But at least on one point Morawiecki can be followed: Articles 4 and 5 of the EU Treaty, to which he referred in his speech in the European Parliament, limit the EU’s scope of work and the validity of its laws.

Article 4 states: “All competences not conferred upon the Union by the Treaties shall, in accordance with Article 5, remain with the Member States.“

And Article 5 makes it clear that the principle of conferral applies to the delimitation of the Union’s competences: The principles of subsidiarity and proportionality apply to the exercise of the Union’s competences.

However, von der Leyen is miles away from the principle of conferral. From EU debt to the health union to defence, she is constantly venturing into new areas.

Accordingly, she also interprets EU law expansively…

The original post (in German) is here