Jacques Ziller (University of Pavia, Department of Political and Social Sciences; Université Paris 1 Panthéon-Sorbonne; European University Institute - Department of Law (LAW)) has posted The Primacy of European Union Law (European Parliament Policy Department for Citizens’ Rights and Constitutional Affairs Directorate-General for Internal Policies of the Union PE 732.474 (2022), https://www.europarl.europa.eu/thinktank/en/document/IPOL_STU) on SSRN. Here is the abstract:
This study, commissioned by the Policy Department for Citizens’ Rights and Constitutional Affairs of the European Parliament, explains the principle of primacy of European Union law and its practical consequences, as established by the Treaty system and developed by Court of Justice case-law since 1964. It explains how and subject to which limits Member State courts accept, interpret and apply the principle.
KEY CONCLUSIONS: Primacy is not expressly enshrined in the Treaties, but is recognised by the Member States through Declaration 17 annexed to the Treaty of Lisbon. The Court of Justice clarified the meaning of primacy in its Costa v E.N.E.L. judgment of 15 July 1964. Primacy has specific practical consequences for the Member States, and is covered by the system of sanction specific to the European Union, which guarantees its effectiveness. Member State institutions are bound by the pacta sunt servanda principle in different ways, depending on whether or not their constitutions give precedence to the Treaties over domestic law. Primacy is recognised and applied by all Member State courts, but there are some limitations on its consequences in some instances. This is because, in specific legal cases, there is a divergence between a domestic legal rule and an EU legal rule. As a matter of prevention, some constitutional or supreme courts have developed theories relating to the limitations that fundamental rights or constitutional principles, and the constitutional identity of the Member States, can impose on the consequences of primacy. In a few, but significant, cases, the constitutional or supreme courts of Germany, Denmark, Hungary, Poland and Romania have openly defied the Court of Justice by expressly refusing to apply its decisions.
The study has first been published at https://www.europarl.europa.eu/thinktank/en/document/IPOL_STU(2022)732474. The French language version is available at the same address.
