Clash between gender data vs Hungarian personal data register: Can an existing Hungarian registry system prevent the enforcement of trans rights based on the GDPR?

 

Attila Szabó, PhD

Head of Legal Aid Service, Hungarian Civil Liberties Union

 

*The author assisted the lawyer representing the person concerned as an advisor in the Hungarian case analyzed in the text.  The author also used artificial intelligence to prepare the English version of the text.

 

Photo credit: Jorge Franganillo, via Wikimedia commons

 

In recent years, the Court of Justice of the European Union has increasingly engaged with trans rights. European constitutional community has followed this development. 

It appears that despite the consolidation of a GDPR interpretation aligned with trans rights, and thus with human dignity, Hungarian courts fail to understand that gender identity is not only a matter of self-determination, but also one of data accuracy. If someone presents and lives as a woman, then from the perspective of data accuracy she must also be treated as a woman, since this is the accurate data. The highest Hungarian court, however, sees this differently, and with its decision on the matter, it violates EU law.

Between 2024 and 2025, the Court of Justice of the European Union (CJEU) reshaped the landscape of trans rights in the EU through a remarkable line of cases: Mirin, Mousse, Deldits and Shipov. Taken together, these rulings reveal a structural shift in the CJEU’s approach. The Court increasingly speaks the language of “gender identity” rather than “gender reassignment,” signalling a move away from medicalised understandings of trans status and opening space for non-binary recognition. It integrates ECtHR standards as a constitutional floor while embedding trans rights across multiple doctrinal pillars: EU citizenship, free movement, privacy, equality, and data protection. What emerges is not a single breakthrough, but a coherent jurisprudential arc. One that justifies speaking of a significant doctrinal shift of trans rights in EU law.

Summary of the Hungarian Kúria’s Decision 

The claimant requested the rectification of the “sex” entry in the Hungarian personal data and address register from “male” (as recorded in the civil registry at birth) to “female,” relying primarily on Article 16 GDPR (right to rectification) and explicitly invoking the CJEU’s judgment in Deldits. The claimant argued that the register in question records “sex”, not “sex at birth,” and therefore should reflect lived (social) gender identity. Since her appearance and social relations objectively correspond to a female identity, the currently recorded data were inaccurate within the meaning of Article 5 (1) d) and Article 16 of GDPR. She maintained that the data protection authority should assess whether the recorded data correspond to reality as experienced and perceived, and that EU law requires rectification even if domestic civil registry law remains unchanged.

Both the first-instance court and, on review, the Kúria (Hungarian Supreme Court) rejected the claim. (The decisions have not yet been made public; this blog post provides the first summary of them.) The decisive reasoning was structural: the personal data and address register is a secondary, derivative register whose “sex” entry is based directly on the birth registry. Under Hungarian law, the birth registry records “sex at birth,” defined biologically. Since the personal data register derives this data from the civil registry, it cannot diverge from it without undermining legal certainty and the authenticity of public registers. The Kúria held that the register does not record “lived gender identity” at all; therefore, the data cannot be considered inaccurate merely because the claimant’s current gender identity differs from the birth record. In its reading of Deldits, the GDPR right to rectification applies only to data that are inaccurate within the meaning and function of the specific register concerned. Article 16 GDPR cannot be interpreted as obliging an authority to insert new categories of data (e.g. lived gender identity) without explicit statutory authorisation, nor to assign a different substantive meaning to an existing category (“sex at birth”). The Court therefore concluded that no inaccuracy existed and that rectification was not required.

Mistakes in the decision

The conceptual distinction between “sex at birth” and “sex” undermines the exclusivity claim. The birth registry records a historical biological fact at the time of birth. By contrast, the personal data and address register functions as an operational identification database used for everyday legal and administrative interactions. Accuracy in this context serves identification and legal certainty in present-day relations. If the data recorded there do not reflect the individual’s lived and socially recognised gender, they may fail the accuracy requirement precisely because they hinder reliable identification. The fact that one dataset originates historically from another does not transform the original entry into an immutable legal truth for all future processing contexts.

Secondly, Hungarian law itself does not establish that the civil registry is the sole permissible source of “sex” data in all registers. If it would have been so it would be absolutely unchangeable. However it is not, since the statutory framework governing the personal data and address register allows updates based on legally valid rectification requests. It is fully in line with GDPR. Moreover, even Hungarian constitutional jurisprudence has recognised that legal acknowledgment of gender identity, at least outside the civil registry context, may be compatible with the Hungarian Fundamental Law. This demonstrates that the legal system does not treat the birth entry as metaphysically definitive, but as one administrative record among others.

Finally, the “hierarchy of registers” argument reverses the logic of legal certainty. Legal certainty is not preserved by maintaining inter-database consistency at the price of factual inaccuracy. Rather, certainty requires that state records correspond to verifiable social and legal reality. If necessary, consistency between registers can be achieved by differentiating between “sex at birth” (retained in the birth registry) and current “sex” or gender identity (reflected in identification databases). EU law does not require uniformity of terminology across all databases; it requires accuracy, proportionality, and effective protection of fundamental rights. Therefore, the proposition that only the birth registry may serve as the lawful source of sex-related data is neither compelled by domestic law nor compatible with the GDPR as interpreted by the Court of Justice.

The Decision in the Context of European Law

This ruling stands in notable tension with the emerging CJEU jurisprudence represented by the Deldits, Mirin, Mousse and Shipov cases. In Deldits, the CJEU held that where a register contains personal data relating to gender identity, that data must be rectified if inaccurate, and that Member States may not impose disproportionate evidentiary burdens (such as proof of surgery). The Hungarian Kúria distinguished Deldits on the basis that the asylum register there functioned as a primary identity register, whereas the Hungarian personal data register merely mirrors the civil registry’s birth-sex entry. The core of Kúria's reasoning is therefore ontological: if a register is designed to record biological sex at birth, then a divergence from lived gender identity does not render it “inaccurate.”

This is, of course, a misconception: the personal data register, which is distinct from the civil (birth) registry, exists precisely to record the data necessary for identification. In most cases, those data derive from the civil registry; however, in the case of trans persons, they do not necessarily follow from the birth registry but from factual circumstances that, through a rectification procedure, could also become officially documented facts. This state database can record birth sex data and accurate, actual data too, in parallel. Kúria argues that the registry only processes data relating to "sex" and cannot process data relating to birth gender and current gender without a change in legislation. This is true, of course, but the data controller can, in such cases, process only data relating to current gender in the registry that exists alongside the birth registry system.

Nor is Kúria's argument persuasive that it cannot order the processing of “new” data. The personal data register can, within the existing legal framework, be modified technically and administratively if in its current form it does not comply with the requirements flowing from the GDPR and EU law. The Kúria therefore did not give effect to EU law, but rather to domestic practical constraints: it effectively treated a functional system as if it were a legal norm, even though in reality such a system should adapt to legal norms, not prevent their enforcement.

From an EU law perspective, however, this formalistic register-based distinction raises deeper questions. The recent CJEU trend has emphasised substance over classification: Mirin prioritised the practical effectiveness of EU citizenship and identity coherence across registers; Mousse treated gender-related data as protected personal data subject to strict necessity and proportionality review; and Deldits framed gender identity as a legally relevant dimension of accuracy under the GDPR. Against this background, the Hungarian decision represents a restrictive reading of Article 16 GDPR, confining rectification to internal consistency within a nationally defined registry hierarchy.

In this case, we will still turn to the Hungarian Constitutional Court. However, if that body also fails to restore the possibility of effective legal enforcement under the Hungarian Fundamental Law and the binding EU law applicable on that basis, then, besides applying to the European Court of Human Rights, the only remaining option will be for the European Commission to initiate infringement proceedings and thereby compel Hungary to comply with the binding requirements of the GDPR and the Charter of Fundamental Rights. And yes, if necessary, let them add another field to the personal data register system.

Following the very recent Shipov decision, the situation is even clearer: the position of the Hungarian Supreme Court is completely untenable. In that case, the court ruled that it violates the right to free movement if a person is unable to identify themselves in another Member State with an identity document corresponding to their true gender. The current Hungarian case highlights that this violates not only the right to free movement but also the GDPR’s data accuracy rules. After all, inaccuracy is not only a problem when someone travels to another Member State. The two cases are thus based on different legal arguments, but they point to the same thing: inaccuracy causes privacy difficulties that violate the right to private life protected by the Charter of Fundamental Rights.

 

 

 

The Primacy of EU Law in Bulgaria after CJEU’s Judgment in Case C‑56/25: A Thorny Path Ahead

 

Dr Radosveta Vassileva, Adjunct Senior Research Fellow, UCD Sutherland School of Law

Photo credit: Raggatt2000, via wikimedia commons

On 12 February 2026, the CJEU delivered its judgment in Case C-56/25 which concerns a preliminary reference from Bulgaria raising a question about the application of the principle of primacy of EU law in view of a provision of the Procedural Rules of Bulgaria’s Constitutional Court. The CJEU judgment was rendered without an Opinion by the Advocate General, indicating that, in the eyes of the CJEU, the question was neither new, nor difficult. Moreover, the CJEU quotes its settled case law on the primacy of EU law.

However, a closer look at the Bulgarian legislation, which gave rise to the question by the Bulgarian court, especially against the broader country-specific context, reveals that the judgment seems to foreshadow inevitable conflicts between the Bulgarian and the EU legal orders in the future. From a Bulgarian perspective, the place of EU law in the hierarchy of norms is far from being conclusively determined. In parallel, the judgment demonstrates some of the flaws of a controversial constitutional reform carried out in Bulgaria in 2023, whose grand innovation was the ‘individual constitutional complaint’, which led to the hierarchy of norms dilemma of the referring court.

‘The chicken-or-the egg’ problem of the Bulgarian court

The preliminary reference was made in 2025 by the Sofia City Court, acting as a first instance in criminal proceedings, which seemingly faced a ‘chicken-or-egg’ dilemma.

The Sofia City Court was concerned that a provision of national law relevant to the qualification of the criminal offence and, respectively, the punishment in the criminal proceedings before it violated both Bulgaria’s Constitution and EU law – namely, Article 4 of Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking.

The Sofia City Court deemed that it was more appropriate to ask the Constitutional Court to rule on the constitutionality of the contested provision of national criminal law before it made a preliminary reference to the CJEU about the compatibility of Bulgarian criminal law with the aforementioned council framework decision. However, in its eyes, there was a catch – Article 18(3) of the Procedural Rules of Bulgaria’s Constitutional Court requires that a request to it

…must contain a reasoned assessment of the applicable law, including of the consequences of the application of EU law where the contested provision or act comes within its scope.

In this context, the Sofia City Court asked the CJEU the following:

Are Article 267 TFEU, Article 94(b) of the Rules of Procedure of the Court … and the principle of the primacy of EU law … to be interpreted as meaning that, where a national court has doubts as to the compatibility of a provision of national law with EU law, and is at the same time convinced that that provision of law is [contrary to the national Constitution], it is obliged or entitled, before submitting its request for a preliminary ruling, to establish whether that provision of national law is indeed applicable in the main proceedings by making an application to the… Constitutional Court… for a declaration as to its unconstitutionality?(para 27 of judgment).

Contextual background: ‘the individual constitutional complaint’ as the grand innovation of the 2023 constitutional reform

The significance of the question by the Sofia City Court can be better appreciated against the broader context of the Bulgarian constitutional reform of 2023, which, regrettably, is neither explained in the text of the preliminary reference itself, nor in the CJEU judgment. This reform, however, made Article 18(3) of the Procedural Rules of Bulgaria’s Constitutional Court, which is at the heart of the hierarchy of norms dilemma of the Sofia City Court, a legal irritant from an EU law perspective.

Before the 2023 reform, the opportunities to request a review by the Constitutional Court were ‘significantly limited and depend[ed] on the political climate in the country’ (see Radosveta Vassileva, ‘A Perfect Storm: The Extraordinary Constitutional Attack against the Istanbul Convention in Bulgaria’ (2022) 1 Osteuropa Recht 84). According to the previous wording of Article 150(1) of the Bulgarian Constitution, the Constitutional Court could only be approached by one-fifth of the Members of Parliament, the President, the Council of Ministers, the Supreme Court of Cassation, the Supreme Administrative Court, or the General Prosecutor. In some limited cases, it could be approached by the Ombudsman or the Supreme Bar Council (see the previous wording of Articles 150(3) and 150(4) of the Constitution).

To this end, one of the grand ‘innovations’ of the 2023 constitutional reform was the introduction of the ‘individual constitutional complaint’. The name given by the Bulgarian legislator to this new procedure, nevertheless, seems to be a misnomer because a private citizen can neither directly ask the Constitutional Court for constitutional review nor appeal court decisions there on constitutional grounds. The new mechanism for constitutional review, in essence, mimics the preliminary reference procedure before the CJEU. In fact, as argued in the explanatory memorandum accompanying the reform bill of 2023, ‘the situation in Bulgaria [was] paradoxical because any court (judge) could [make a preliminary reference to the CJEU], but could not turn directly to the national constitutional jurisdiction’ (p 17 of the aforementioned explanatory memorandum).

Following the 2023 reform, Article 150(2) of the Constitution stipulates:

Any court, at the request of a party to the case or on its own initiative, may refer to the Constitutional Court a request to establish an incompatibility between a law applicable to the specific case and the Constitution. The proceedings in the case shall continue, and the court, whose decision is final, hands down its judgment after the proceedings pending before the Constitutional Court have been concluded.

It is important to note that the usage of ‘may’ in the wording implies that the judge or the judicial panel in question has discretion over whether to honour such request by a party in the proceedings. In practice, it is common for courts to choose not to honour requests for preliminary references to the CJEU and/or requests to approach the Constitutional Court under the new wording of Article 150(2) coming from the parties. In other words, there are cases in which judges turn a blind eye to the likely incompatibility between Bulgarian legislation, on the one hand, and EU law and the Constitution, on the other. There are also cases in which judges can be seen in a more activist role, making references when the parties concerned did not argue any such incompatibility themselves.

The ‘ticking procedural time bomb’ left by the Bulgarian legislator

Bulgaria’s Constitution, adopted in 1991, clearly specifies the hierarchy of norms. Its Article 5(1) explicitly states that it is the ‘supreme law’, while its Article 5(3) stipulates:

International treaties, ratified in accordance with the constitutional procedure, promulgated, and having entered into force for the Republic of Bulgaria, are part of the country’s domestic law. They take precedence over those provisions of domestic legislation that contradict them.

Hence, the Constitution takes precedence over any international treaty and Bulgarian law while international treaties take precedence over Bulgarian laws that contradict them. Bulgaria has, of course, ratified its EU Accession Treaty of 2005.

Furthermore, the status and place of CJEU case law in the hierarchy of norms is subject to debate from a national perspective. CJEU’s case law is not defined as binding in Bulgarian legislation, unlike the case law of the Constitutional Court or the decrees and decisions on interpretation by the country’s supreme courts. However, the Code of Civil Procedure allows cassation on the grounds of violation of the case law of the CJEU (see Article 280(1), point 2).

It is notable that throughout the years, Bulgaria’s Constitutional Court has tried to avoid direct confrontation with the CJEU. In its own case law, however, it has argued that it is up to each entity requesting constitutional review to determine the applicable law, including EU law, to the proceedings before it. It has also stressed that the determination of the applicable law should always precede requests for constitutional review (see, for instance, the detailed reasoning in Ruling 2 of 24 February 2022 by the Constitutional Court).

In this light, the ‘individual constitutional complaint’ can be seen as a ‘ticking procedural time bomb’ since the reform of 2023 left Article 5 of the Constitution untouched, while expanding the jurisdiction of the Constitutional Court itself, which can now receive requests directly from judges. In practice, this ‘individual complaint’ means a chance for more frequent encounters and, respectively, potential clashes between Bulgarian constitutional law and EU law in ordinary Bulgarian courts.

The legislative choice not to tamper with Article 5, in turn, was informed by the restrictions on amendments imposed by the Constitution itself – any amendments to Article 5 require the convocation of a ‘grand national assembly’ as opposed to a ‘regular national assembly’ (on the difference between them, see here; see also Article 158 of the Constitution). Grand national assemblies are notoriously difficult to convene. The Constitution of 1991 was adopted by such an assembly.

CJEU’s judgment as an exercise in judicial diplomacy

In the judgment in Case C-56/25, the CJEU held that Article 267 TFEU, the principle of the primacy of EU law and Article 94(b) of the Rules of Procedure of the Court of Justice do not preclude procedural rules, such as Article 18(3) of the Procedural Rules of Bulgaria’s Constitutional Court (para 61 of judgment). Leading authorities on the rule of law like Professor Laurent Pech have already called the judgment ‘unusually generous’, especially in view of challenges to CJEU’s jurisdiction from other EU member states, such as Poland.

Yet, when one reads the reasoning of the judgment in light of the particularities of the Bulgarian constitutional order, it seems that the ‘generosity’ came with a few price tags – namely, demands for a voluntary surrender of jurisdiction by the Bulgarian Constitutional Court. These requests, nevertheless, may not bear the fruit intended by the CJEU, precisely because they seem oblivious of context, including national legislation.

One of the reasons why the CJEU was not troubled by the requirements of Article 18(3) of the Procedural Rules of Bulgaria’s Constitutional Court was the Constitutional Court’s alleged obligation to make preliminary references itself. Namely, the CJEU stated: ‘…if a constitutional court is seised of a request for a review of the constitutionality of a provision of national law coming within the scope of EU law, that court is in principle obliged to make a reference to the Court of Justice for a preliminary ruling, in accordance with the third paragraph of Article 267 TFEU…’ (para 57 of judgment). Bulgaria’s Constitutional Court, however, has no record of making preliminary references to the CJEU and it is highly unlikely that it will endeavour to make such references in the future if an amendment to Article 5 of the Constitution is not made. That is because the Constitutional Court sees its own role solely as the guardian of the Bulgarian Constitution. First, the Constitutional Court has the monopoly on authoritative, binding interpretation of the Constitution (Article 149(1), point 1 of the Constitution). Second, in case of conflict between the Constitution and EU law, the Constitution prevails according to its own text. Third, as highlighted above, the Constitutional Court has stated in its own settled case law that the establishment of the applicable EU law is in the prerogative of the court examining the dispute on the merits. On the one hand, this approach protects the Constitutional Court’s jurisdiction. On the other hand, it prevents direct confrontation with the CJEU – it is up to the ordinary courts to identify and raise any questions about the compatibility between EU law and constitutional law and to consider how such conflict affects the outcome of the case.

It is also interesting that the CJEU reminds that a ‘national court is required, in order to ensure the full effectiveness of the rules of EU law, to disregard, in the dispute before it, the rulings of a national constitutional court which refuses to give effect to a judgment given by way of a preliminary ruling by the Court of Justice…’ (para 59 of judgment). From an EU perspective, this approach has numerous merits, such as empowering judges in lower courts to disregard controversial decisions by constitutional courts, especially when they are unlawfully composed. Nevertheless, in the Bulgarian context, beyond the invitation to disregard key express provisions of the Bulgarian Constitution, this conclusion ignores important practical aspects. For example, pursuant to Article 280(1), point 2 of the Bulgarian Code of Civil Procedure, non-compliance with case law by the Constitutional Court serves as grounds for cassation. While the Code of Criminal Procedure does not contain such explicit reference to constitutional case law, its Article 348 allows cassation for ‘violations of the law’ broadly conceived.

A thorny path ahead for the primacy of EU law

Overall, the path ahead for the primacy of EU law in Bulgaria appears rather thorny. CJEU’s judgment in Case C-56/25 may be seen as a precursor to a series of legal and political challenges. It foreshadows inevitable clashes between EU law and Bulgarian constitutional law in ordinary courts, which are facilitated by the shortcomings of the 2023 constitutional reform.

It is also doubtful to what extent the approach, which the CJEU endorses in the judgment, will contribute to affirming the primacy of EU law in Bulgaria. Ensuring such primacy on paper requires important constitutional amendments by a grand national assembly as well as a large-scale legislative reform. It also necessitates a change of mentalité in practice on behalf of both Bulgarian judges and the CJEU itself.

First, CJEU case law remains terra incognita for many jurists because of their educational and professional background. Moreover, for more than a decade following Bulgaria’s EU accession in 2007, preliminary references from the country came from a very small circle of judges (see Aleksander Kornezov, ‘Ten years of preliminary references – a critical review and appraisal’(2017) Evropeiski praven pregled).

Second, between 2018-2022, a vast number of preliminary references were made by Bulgaria’s specialised criminal court, which had all features of an extraordinary repressive tribunal, and used this EU law mechanism primarily as a tool to affirm its legitimacy in light of criticism of its abusive practices. In 2022, this court was dissolved for good for undermining the rule of law upon the proposal by a short-lived opposition government and after years of public discontent. As a result, doubts about the status of its case law and the EU judgments resulting from its references, which are intertwined with it, are on the rise. So is the bitter feeling that the CJEU empowered ‘non-judges’ the way it did vis-à-vis Poland (see here).

Third, the CJEU has acted as a Pontius Pilate, washing its hands of responsibility, on key matters pertaining to Bulgaria’s rule of law backsliding and human rights abuses. It has a record of prioritising formalism and refusing to address the issues at their core, thus discouraging judges from raising politically sensitive questions (on judicial independence, see here; on standards of proof in pretrial detention, see here).

To what use is then primacy for primacy’s sake? This is a question which many judges from Bulgaria’s ordinary courts may ask in the aftermath of CJEU’s judgment in Case C-56/25.

 

The author would like to thank Prof Laurent Pech for his helpful comments and suggestions on an earlier draft.

National Courts, Judicial Independence, and the Risk of Getting It Wrong

 

Darren Harvey, Senior Lecturer in Law, Kings College London

Photo credit: Lukas Plewnia, via Wikimedia Commons – see also  www.polen-heute.de

Introduction

Much has been written in praise of the Court of Justice’s role in promulgating legally binding obligations pertaining to judicial independence on the basis of Article 19(1) TEU. To ensure effective legal protection in the fields covered by Union law, Member States must ensure that all national courts which may rule on the interpretation or application of Union law meet the requirements of independence, impartiality and previous establishment by law.

But might there be a trap door built into the rather impressive stage that the Court has been constructing in recent years? I happen to think so. Simply stated, my concern is this – what happens when national courts try to interpret and apply the manifold legal principles flowing from the CJEU’s judicial independence case law and get things wrong?

The stakes have recently been raised by the CJEU’s confirmation in AW “T” that provisions of national law may need to be declared null and void as a matter of domestic law whenever they infringe EU judicial independence standards. This includes lower-instance courts being obliged to find decisions of hierarchically superior national courts to be null and void.

Thus, in the name of protecting the rule of law, one now faces the very real prospect of national courts (either in good or in bad faith) expunging measures from their domestic legal systems on the basis of an erroneous application of EU judicial independence standards.

The Risk of National Courts (incorrectly) Policing Judicial Independence

The recently decided Daka case offers a good illustration of the concerns at play here. The case concerned decisions taken by the President of a national court to re-assign judges from one chamber to another chamber of that court. Those re-assignment decisions were taken without the consent of the re-assigned judges, did not contain any reasons and did not seem to be open to judicial challenge. Furthermore, the appointment of the court President issuing the relevant decisions was itself incompatible with Article 19(1) TEU. These factors prompted a national court, composed of re-assigned judges, to refer questions on the compatibility of the above with Article 19(1) TEU. In response, the CJEU surprised commentators (here and here) by finding that the re-assignment decisions of the non-independent court President were compatible with judicial independence standards flowing from Article 19(1) TEU.

But what if, instead of seeking guidance from the CJEU, the national court in Daka had concluded, not unreasonably in my view, that the re-assignment decisions were contrary to EU standards of judicial independence? In light of the abovementioned development in AW “T.” , a national court in a position similar to that in Daka might plausibly conclude that that national measure must be declared null and void.

The problem, however, is that we know that in Daka itself such a finding would have been incorrect as a matter of EU law. And it is here, I submit, that a possible trap door becomes partially visible. The problem stems from the role that EU law requires national courts to play in defending judicial independence on the ground in the Member States. According to settled case law, “the guarantees of access to an independent and impartial tribunal previously established by law, and in particular those which determine what constitutes a tribunal and how it is composed, represent the cornerstone of the right to a fair trial. That right means that every court is obliged to check whether, as composed, it constitutes such a tribunal where a serious doubt arises on that point…such a check is an essential procedural requirement, compliance with which is a matter of public policy and must be verified of the court’s own motion,.” There is also an “inextricable link” between the requirement of access to a court or tribunal previously established by law and the guarantees of independence and impartiality of judges. Finally, the requirements of judicial independence flowing from Article 19(1) TEU are capable of direct effect and must, therefore, be dutifully applied by national courts. It follows that the main responsibility for ensuring compliance EU judicial independence standards lies with national courts, whether in relation to their own independence, or the independence of other courts.

Consider in this regard the recent judgment on whether Article 19(1) TEU precluded national rules on setting national judicial salaries. In that case, the CJEU set down several very detailed principles that must henceforth be considered when national authorities enact rules for setting national judicial salaries. These principles also form the basis of any subsequent judicial review. They are intended to be applied by national courts to national rules and practices. Accordingly, what would prevent a national judge from incorrectly applying those principles in a future case and deciding, as a result, that national rules on judicial salaries must be disapplied or even declared null and void? And what if that national judge erroneously finds a violation of Article 19(1) TEU in such a case, without ever having referred the matter to Luxembourg? Crucially, the wide-ranging scope of application of Article 19(1) TEU means that virtually all national laws and practices touching upon the organization of justice within the State could now suffer a similar fate. Thus, far greater disruption can be caused to national legal orders by a misapplication of EU judicial independence principles than in other areas of EU law. There is a world of difference between a national court erring in its application of EU law governing free movement of workers, say, and the same national court erring in its conclusion that the national supreme court lacks independence under Article 19(1) TEU standards, with all the consequences that that may now entail.

It is worth dwelling on what those consequences might now be for national justice systems. As Dougan points out, disapplication is an individual remedy provided by a national court to resolve a particular dispute. Once disapplied, the national law in question remains in existence and operation for all other purposes. In contrast, declaring a provision of national law to be null and void is a remedy of general effect and application. The relevant national provision, once nullified, ceases to exist, including for all other purposes. Thus, Dougan notes that nullity is “a very different, more robust and more far-reaching, response to incompatibility than disapplication.” The former “carries potentially widespread and more penetrating implications within and across the national legal system, for example as regards the impact on other relationships, and for other powers or actions, as well as for third parties.” Admittedly, the circumstances in which this novel remedy of nullity will be required as a matter of Union law remain uncertain. Nonetheless, there would appear to be more at stake for the functioning of national justice systems in a world where national courts may declare measures of national law to be null and void.

One must also be attentive to an altogether more worrying prospect that, I believe, is now in play here. In the name of EU judicial independence standards, lower-instance courts may utilise these developments to disapply or invalidate judgments of hierarchically superior national courts. It is perfectly foreseeable that, in some national legal orders, first instance courts and tribunals will be far more susceptible to having their independence eviscerated by the ruling executive than apex courts in that state. In circumstances where the constitutional or supreme court remains independent, but the lower courts do not, Article 19(1) TEU, coupled with the primacy principle, can now be used (in bad faith) by those captured lower courts to effectively neutralize decisions of their (independent) superior courts that would otherwise be binding upon them. Again, this can be done (disingenuously of course) in the name of upholding EU standards of independence.

Case C‑448/23, Commission v Poland (Polish Constitutional Tribunal) as a Possible Solution?

Now, the response here might be to fall back on the classic doctrines of EU law. The risk that national courts might err in their application of EU law has always been a structural feature of the EU legal system. There is nothing novel or surprising about EU law disrupting national judicial hierarchies. The above may be nothing more than an extension of Simmenthal to the rule of law context.  Moreover, tools such as Article 258 TFEU infringement proceedings and actions for state liability in damages serve to mitigate against these risks. It may also be possible to appeal against a judgment of a national court that allegedly misapplies Article 19(1) TEU, and for any appellate court to subsequently refer the matter to Luxembourg. However, all these corrective mechanisms have shortcomings that will be familiar to readers of this blog.

It is with this in mind that we can turn, in closing, to the recent CJEU judgment concerning the Polish Constitutional Tribunal. In my view, the judgment makes some important points about the role of national courts in ensuring compliance with Article 19 TEU standards, particularly in light of the problem I have identified above. The judgment hints in places (paras 102-120) at a solution to those problems that would centralize review in Luxembourg. The Court stresses that it has exclusive jurisdiction to give definitive and binding interpretations of EU law, including the requirements flowing from Article 19(1) TEU. Then, “in order to ensure the uniform application of EU law in all the Member States, as is required by Article 19(1) TEU, those requirements cannot depend on the interpretation of provisions of national law, or on the interpretation of provisions of EU law by a national court, which does not correspond to that of the Court (para 210, emphasis added). Thus, Article 267 TFEU sets up a system of judicial dialogue between national courts and the CJEU with the aim of securing the uniform interpretation of EU law. “This is consequently the path that a national court must take when it has doubts as to the compatibility of national law with a provision of EU law requiring interpretation of the latter.” (para 212, emphasis added). Moreover, the obligation upon national courts to disapply any national rule that is inconsistent with Article 19 TEU arises “in the event of an established infringement of the second subparagraph of Article 19(1).” (para 115, emphasis added). Finally, the obligation to declare provisions of national law to be null and void is said to arise when “a national court or tribunal which has referred a question to the Court for a preliminary ruling” and subsequently “concludes that it is apparent from all the conditions and circumstances” that national law is incompatible with Article 19(1) TEU (para 120).

To my mind, these passages hint in the direction of finding that national courts must refer questions to Luxembourg whenever they harbour doubts as to the compatibility of national law with Article 19 TEU standards. How else would a national court ensure that it did not arrive at an interpretation of Article 19(1) TEU that does not correspond to that of the CJEU? How else might a national court determine that there had been an “established infringement” of Article 19(1) TEU before disapplying or nullifying the infringing provision of national law? Such a centralized solution, if confirmed, would essentially extend the Foto-Frost obligation to refer to Luxembourg questions of validity of national law when they arise in relation to Article 19(1) TEU. Such a solution would certainly mitigate against the risks of national courts causing major disruption to the organization of national justice systems whenever they incorrectly apply EU judicial independence standards. However, it would sit uncomfortably with the structure and wording of Article 267 TFEU, which affords lower-instance national courts with a discretion to refer (or not refer) questions of interpretation to Luxembourg. It would also sit uncomfortably with the obligation that direct effect and primacy place on all national courts to give full and immediate effect to Article 19(1) TEU standards by disapplying inconsistent provisions of national law. The alternative reading is that determinations of whether national rules and practices comply with Article 19(1) TEU standards remains a task that is primarily for national courts, most of whom are not obliged to refer such matters to Luxembourg.

Conclusion

The above is an attempt to articulate what I take to be a difficulty in the law of judicial independence as it currently stands. There is always a risk in such endeavours that one is identifying a problem that does not really exist. Perhaps there is no trap door built into the stage. It is also possible that the problem identified does exist, but is not as significant or difficult to solve as the above analysis might suggest. To be corrected on either of these points would be very helpful. It would mean that the stage rests on a firmer foundation than first feared. Alternatively, the above analysis might well be on to something. If that proves to be true, it will at least offer the consolation of being persistently troubled about the right sort of thing.

Holy Orders or Higher Law? Praying for a Karlsruhe intervention

 

Jonas Siebold

Photo credit: ReinhardHauke, via Wikimedia commons

A lot is at stake for the Protestant Church in Germany. In the pending “Egenberger” case (2 BvR 934/19) before the German Federal Constitutional Court (FCC) in Karlsruhe, nothing less than the church’s right to self-determination itself is at issue. “Egenberger? Karlsruhe?” Wait a minute. Attentive European Union lawyers will certainly be familiar with this case. But first things first.

I. The Case

In 2012, Vera Egenberger applied for a position at a Protestant organisation (the Evangelisches Hilfswerk für Diakonie und Entwicklung). The job description required a church membership, which Egenberger did not have. Ultimately, she was not invited for an interview, while the candidate who got the post was a Protestant Christian. Ironically enough, the position was for bout producing a report on the elimination of discrimination.

Assuming that her application had been rejected because she did not belong to any denomination, Egenberger claimed compensation under Section 15 (2) of the German General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz, AGG). Nevertheless, Section 9 (1) of that Act allows for discrimination on religious grounds, if a religious requirement constitutes a justified occupational requirement, having regard to the self-perception of the religious society concerned, in view of its right of self-determination or because of the type of activity.

II. The Judgment

The German Federal Labour Court (Bundesarbeitsgericht), as court of last instance, referred several questions to the Court of Justice of the European Union (CJEU) as a preliminary reference. Questionable was the interpretation of Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, which includes a requirement of equal treatment on grounds of religion (subject to exceptions).

In its judgment (Case C-414/16), the CJEU responded that religious communities invoking the necessity of religious affiliation for filling positions only align with Article 4 (2) of Directive 2000/78/EC (which sets out a specific ‘genuine occupational requirements’ ground of justification as regards religious discrimination) when there is an “objectively verifiable existence of a direct link between the occupational requirement imposed by the employer and the activity concerned”. Whether this is the case is subject to effective review by national courts. The Federal Labour Court then carried out the interpretation required by EU law and concluded that religious affiliation was not necessary for the position to be filled.

III. The Complaint

With a constitutional complaint to Karlsruhe, the Protestant organisation now aims to ensure that the question of the necessity of religious affiliation for a church position may only be answered based on the church’s self-perception, without control by national courts. As the Federal Labour Court followed the CJEU’s preliminary ruling, its judgment is insofar determined by EU law. Although the constitutional complaint is directed against the Federal Labour Court’s final judgment, the complainant indirectly aims for more – a review of the CJEU’s judgment.

Is that even possible? In principle not, according to the primacy of EU law, established in the CJEU’s landmark decision Costa/E.N.E.L. from 1964. Six years later the CJEU explicitly clarified in Internationale Handelsgesellschaft that this even applies for national constitutional law. Furthermore, the CJEU is exclusively responsible for the interpretation and application of EU law, according to Article 19 TEU.

So why is the Protestant organisation now coming up with the apparently far-fetched idea of taking legal action before the FCC? Admittedly, one or two European Union lawyers and CJEU judges would certainly agree with this approach. However, Karlsruhe is less monotheistic than its Luxembourg colleagues when it comes to the principle of primacy of EU law. While it accepts the primacy of EU law, it does not accept it in the absolute terms set out by the CJEU.

IV. The National Court’s Control

Under admittedly strict requirements, Karlsruhe reserved for itself three reservations of control over the primacy of EU law. In exceptional cases it reviews whether the European Union level of fundamental rights protection generally shrinks to a level below that which essentially corresponds to the German (Solange II review). Furthermore, if EU institutions manifestly overstep their competences (ultra vires review) or pursuant to article 23 (1) 3 in conjunction with article 79 (3) of the Basic Law, the inviolable core of the national constitutional identity is affected (identity review).

Even if perhaps the dogmatic amount of reasoning seems unique, numerous Member States’ courts share the perspective of a merely relative primacy of EU law. Such an understanding is a test for the Union’s cohesion but bearable due to the utmost restraint in reviewing. For Germany, this is demanded and ensured by the Basic Law’s openness towards European Union Law.

V. The Argumentation

But let’s get back on track. Which review could be considered for our complainant? The level of European Union Fundamental Rights protection is arguably stronger than ever before, so realistically only the ultra vires or identity review seem possible.

The defendants claimed that the CJEU fails to respect the status of religious communities as guaranteed in Article 17 TFEU. This is arguably not correct, as primary law and the directive require a balance to be struck between the self-determination of religious communities, which is anchored in national law but also protected by EU law and protection against discrimination. But this is a question of the judgment’s compliance with EU law and not exceeding competences.

Then, is the church’s right to self-determination, as enshrined in article 140 of the Basic Law in conjunction with article 137 (2) of the German Constitution of 11 August 1919 (Weimar Constitution), part of the inviolable core of the national constitutional identity? In principle, this can be considered. But not in general for every individual case, particularly for less strictly ecclesiastical activities like in Egenberger. This would hardly align with Karlsruhe’s narrow understanding of the constitutional identity, including only the core of human dignity in fundamental rights and fundamental principles like democracy or the rule of law. Finally, it would unduly jeopardise the fundamental rights of job applicants and employees.

VI. Conclusion

Therefore, the odds for a Karlsruhe intervention seem small and due to the argumentation presented unconvincing. It would be surprising if, after the fiercely debated PSPP-judgment from May 2020, the FCC revolts against the CJEU again, in this case of all cases. But who knows, maybe the Protestants’ prayers will be heard in Karlsruhe.

A decision is scheduled for 2025.

National Limits, European Claims: The Ultra Vires Conflict in EU Constitutional Law (part 2)

 

Dr Benedikt Riedl, Mjur (Oxford),  postdoctoral researcher and academic assistant at the Chair of Public Law and Legal Philosophy (Prof Dr Peter M. Huber, former Justice of the Federal Constitutional Court and former Minister of the Interior) at LMU Munich.

Photo credit: Nicola Quarz, via Wikimedia Commons

 

Ultra Vires Review as a Legal Concept within EU Law

When disputes arise over the boundaries of EU authority, a deeper constitutional tension surfaces: Quis iudicabit – who gets to draw the final line? This question shapes one of the central controversies in EU law: the legitimacy and limits of ultra vires review.

The first part of the blogpost argued that ultra vires review is not an isolated or purely national phenomenon, but a widespread and constitutionally grounded legal practice across the EU. This second part goes further, arguing that ultra vires review is not only compatible with Union law but embedded within it. Anchored in the principle of conferral (Article 5(2) TEU) and safeguarded by Article 4(2) TEU, the authority of national constitutional courts to assess whether EU institutions have acted beyond their powers forms an integral part of the EU’s composite legal order. Rather than threatening the primacy of EU law, ultra vires review reinforces its democratic legitimacy by ensuring that integration remains bound by constitutional limits. To that end, this blogpost also sets out four cumulative steps for invoking ultra vires review as a concept of EU law – proposing a structured, treaty-compatible procedure designed to enhance mutual trust, legal certainty, and institutional balance across the European constitutional landscape.

Doctrinal classification of ultra vires review as a general principle of Union law

1 The authority of Member States’ constitutional courts to declare acts of EU institutions ultra vires – and, as a result, to deny them legal effect within the national legal system – constitutes a general legal principle of EU law. This conclusion is grounded in the EU’s foundations in public international law and supported by comparative constitutional analysis. The invalidation of legal acts that manifestly exceed EU competences follows from a systematic interpretation of the fundamental principles underlying EU law. Moreover, the EU Treaties contain no provision that prohibits Member States from conducting ultra vires reviews. Accordingly, ultra vires review should be understood as an established legal concept within the framework of EU law.

Principles of International Law: A Derived Legal System

2 The CJEU asserts the absolute autonomy of EU law without offering a clear normative foundation in the treaties or justification under the law as it stands (de lege lata). In reality, however, it is the national constitutions that provide both the foundational basis and the essential point of reference for EU law. This becomes evident through an analysis of the EU treaties and their historical development. The treaty text, treaty practice, and drafting history all consistently affirm this perspective. The treaty text includes numerous provisions that explicitly recognize the existence and evolution of the Union’s legal order as deriving from the will of the Member States. Treaty practice further reinforces this: several treaty amendments have failed due to the Member States’ refusal to ratify them. This shows that the EU legal order has never been truly autonomous; it has always been contingent on the voluntary political decisions of the Member States. The EU is based on the collective will of its Member States under international law. Its legal order draws its validity and legitimacy from the national acts of assent and the authorisation granted by Member States for the application of EU law. Only on this foundation can the EU legal order maintain the level of democratic legitimacy necessary for a direct connection to the citizens of the Member States.

3 Given the EU’s interconnected legal structure, the position adopted by the Member States is persuasive. It accurately reflects the constitutional reality of Europe: a union of open constitutional states committed – albeit sometimes cautiously – to cooperative judicial solutions. The constitutions of the Member States serve as both the legal foundation and the primary reference point for EU law. As a result, EU law and national constitutional law form a single, integrated legal system. Within this framework, ensuring effective legal protection is a shared responsibility – carried out through a cooperative network of constitutional courts, referred to as the Verfassungsgerichtsverbund in German legal scholarship.

4 Absolute primacy of EU law or the notion of an autonomous legal order cannot be established through subsequent practice or customary law for several reasons. First, the failure of the Constitutional Treaty clearly demonstrates a lack of political consensus among the Member States to codify a clause providing for the EU law’s absolute primacy. Second, due to the interconnected and multi-layered nature of EU law, Member States cannot be reduced to their governments alone. While governments may ratify treaty amendments without reservations, this does not take into account the constitutional courts, which act as additional constitutional authorities. Their jurisprudence must be taken into consideration in areas where legal orders overlap – and these courts have consistently rejected the idea of absolute primacy of EU law. Finally, customary law cannot emerge contra legem – that is, in contradiction to the express provisions of the EU treaties. As will become clear in the following, this may include Articles 2 TEU, 4(2) TEU, 5(2) TEU, 10 TEU, and 19 TEU.

5 Furthermore, the CJEU’s concept of autonomy is incompatible with its own jurisprudence. In Van Gend & Loos and Costa v. E.N.E.L., the CJEU explicitly grounded the primacy of EU law on the principle of conferral. Recently, however, the Court contradicted itself: It has invoked the unconditional ratification of amending treaties to support its position while simultaneously rejecting the justification of primacy based on a delegation of powers. The demands for uniformity and effectiveness of EU law do not justify arbitrary interference with Member States' constitutional identities. In summary, the concept of autonomy lacks both factual support and legal justification.

6 EU law does not derive its legitimacy from a constitutional act or any other foundational norm; instead, its legitimacy is functional rather than constitutional or supra-legal in nature. This limited and contingent basis for legitimacy distinguishes EU law from the constitutional systems of the Member States. As a result, EU law can only evolve into a genuinely autonomous legal order through a process of constitutionalisation by the European peoples – a process that has not yet taken place. The functional and pragmatic rationale underlying EU law, which is focused on practical effectiveness, neither establishes genuine autonomy nor justifies claims to absolute institutional or substantive authority.

7 Since EU law is not autonomous but derived from – and closely linked to – the constitutions and democratic will of the Member States, ultra vires review aligns with the foundational principles of EU law. Due to EU law’s character as a derived legal order, national courts may, in certain cases, review the application of secondary EU law and assess its validity within their domestic legal systems – especially when EU institutions exceed the competences conferred upon them by the Member States.

Comparative Constitutional Analysis: The Invalidation of EU Measures Exceeding Conferred Powers as a Core Legal Principle in Member State Constitutions

8 Comparative constitutional analysis demonstrates that ultra vires review is the procedural and institutional expression of a general constitutional principle: EU legal acts that exceed the competences conferred through the national parliaments’ acts of assent are not valid within the Member States. Here, national constitutional courts step in to conduct an ultra vires review when the CJEU fails to assess the limits of EU competences. By safeguarding the division of powers between the EU and Member States, these reviews uphold a fundamental constitutional principle. While national constitutions refer to this principle in different terms – such as sovereignty, the republican form of government, democracy, or popular sovereignty – they all serve the same functional purpose: to ensure the democratic legitimacy and internal coherence of EU measures within the national legal order.

9 From a formal standpoint, ultra vires review implements the principle of limited conferred powers in a procedural way. It builds on the widely accepted legal principle that actions beyond conferred competences are prohibited. The EU’s lack of competence-competence (Kompetenz-Kompetenz) – i.e. its inability to unilaterally define the scope of its own powers – is explicitly affirmed in Article 5(2) TEU. Since competences are transferred through acts of the Member States, all constitutional courts recognizing ultra vires review consider procedural enforcement of these limits a constitutional necessity. This ensures that the substantive principle of limited conferred powers is not left without procedural safeguards. This logic is also persuasive within the context of the European composite legal order: while no constitutional court disputes the CJEU’s authority to interpret the limits of EU competences, all reject the notion that the CJEU can unilaterally determine the boundaries of its own jurisdiction. The domestic legal consequences of such determinations are governed by each Member State’s acts of assent. In any event, the CJEU has not been granted the ultimate authority to define or transform the constitutional orders of the Member States.

10 In substantive terms, ultra vires review serves to protect both popular and state sovereignty. Its justification lies in the idea that when EU institutions overstep their competences, they undermine democratic accountability and violate the right of citizens in the Member States to self-determination. Political self-determination is understood both individually and collectively, as tied to the state. The core issue remains the same: if EU institutions act beyond their conferred powers, those actions lack a proper legal basis and, consequently, democratic legitimacy. These acts intrude upon the regulatory autonomy of the Member States and the democratic self-determination of their citizens. Ultimately, it is up to the sovereign – the citizens of the Member States – to decide whether and to what extent EU law applies within their national legal systems. This is determined by the respective parliaments through their acts of assent, which define the scope of EU law within the national constitutional framework via the so-called “integration programme.” Under a compelling interpretation, ultra vires review thus acts as a procedural safeguard of the European peoples’ right to self-determination ensuring the democratic responsiveness of EU law to every citizen. At the same time, it enables the very transfer of sovereign powers, without which the democratic principle itself could be placed at risk.

Article 5(2) TEU: The Composite Structure and Constitutional Anchoring of EU Law

11 EU law and national constitutional law form an integrated legal system. The European Union is a union of constitutional states open to legal integration and cooperation. European secondary law and national law are structurally interconnected through the framework of European primary law. Accordingly, the constitutions of the Member States contribute to an interlinked constitutional order. Legal questions that arise at the intersection of different legal systems must therefore be assessed in light of the mutual interdependence between national law and EU law. The principle of conferral has both a European and a national dimension and is therefore of dual nature. At the European level, it is enshrined in Article 5(2) TEU; at the national level, it is implemented through constitutional opening clauses and acts of assent authorising the application of EU law. In EU law, this principle reflects the limited transfer of sovereign powers from the Member States to the Union. As such, it is not solely a principle of EU law; it also incorporates into primary law the constitutional reality of the Member States and the EU’s dependence on their sovereign decisions under international law. Like Article 4(2) TEU, it expresses both the constitutional origin and the composite nature of the Union’s authority.

12 Moreover, the CJEU itself is directly bound by the principle of conferral, as evidenced by Article 19 TEU. The limited scope of its judicial mandate – in both competence and legitimacy – is clearly articulated in the EU Treaties: Article 19(1), first subparagraph, sentence 2 TEU states that the CJEU ensures the observance of the law "in the interpretation and application of the Treaties," while Article 19(1), second subparagraph TEU limits effective legal protection to "the fields covered by Union law." In this way, the European judicial system reflects the EU’s compound structure. The interconnection of judicial systems operates in both directions: the CJEU is integrated into the judicial framework of the Member States, and national courts are functionally embedded in the enforcement of Union law. Legal protection within this network of constitutional courts is established in the EU Treaties as a shared responsibility between the CJEU and the constitutional courts of the Member States.

13 The involvement of national constitutional courts in the ultra vires procedure is the procedural and institutional consequence of the dual nature of the principle of conferral. Since questions of competence arise in both the EU sphere (interpretation of EU law) and the Member State sphere (interpretation of the integration programme and constitutional opening clauses), resolving such conflicts requires cooperation between the CJEU and national constitutional courts in accordance with Article 19 TEU. The procedural treatment of ultra vires conflicts thus reflects the multidimensional nature of the primacy of EU law and must therefore be addressed institutionally at both levels – by the CJEU as well as the national constitutional courts.

14 The transfer of competences to the EU takes place through national legal acts in accordance with constitutionally prescribed procedures and therefore logically precedes any consideration of the primacy of EU law. These constitutional parameters – reflected in the EU Treaties, particularly in Article 5(2) and Article 19 TEU – form the basis for the residual competence of national constitutional courts to review the boundaries of conferred powers. In principle, Member States have entrusted the CJEU with this competence of review, and national constitutional courts can rely on the CJEU to fulfil it in accordance with Article 19(1), subparagraph 2 TEU. However, if the CJEU fails to adequately exercise its control function, national constitutional courts retain a fallback responsibility to safeguard the proper delineation and exercise of competences. Absent this fallback mechanism, they would ultimately be stripped of their original role of protecting the national constitution and identity, reducing their function to a mere absurdity. The ultra vires procedure – while primarily vested in the CJEU and exercisable only as a last resort by national constitutional courts – derives directly from the principle of conferral embedded in the acquis communautaire of EU law.

Democratic principles and the context of legitimacy in the European Union

15 The involvement of national constitutional courts in ultra vires procedures can be justified not only by the principle of conferral but also by invoking Article 2 TEU and the democratic principles underpinning the European Union. This argument is based on the role of national parliaments and the principle of conferred powers. It underscores the fact that when EU institutions act beyond their competences, the essential link of democratic legitimacy between the Union's authority and the citizens of the Member States is compromised. In such instances, the control conducted by constitutional courts serves as a necessary corrective to uphold the democratic foundation of the EU.

16 The European Union derives its democratic legitimacy through two channels: the European Parliament (Article 10(2) subpara. 1 and Article 14 TEU) and national parliaments (Article 10(2) subpara. 2 and Article 12 TEU). The EU's well-documented democratic deficit – characterised by issues such as unequal voting rights, an insulated executive branch, and limited public engagement – is mitigated by the Member States’ respective democracies, particularly through their national parliaments. These parliaments play a crucial role in legitimizing the EU. A distinction can be drawn between the European Parliament’s direct exercise of democratic functions and the national parliaments’ broader responsibility for overseeing the integration process. If EU institutions overstep their competences and thereby undermine the authority of national parliaments, one of the foundational pillars of European democracy is weakened, resulting in a decline of democratic legitimacy for the EU as a whole.

17 The principle of conferral is closely tied to the democratic values enshrined in Article 2 TEU. A core element of the EU’s democratic framework is the concept of legitimacy based on competences. As a derived legal order, the EU is legitimised through the competences conferred upon it. The democratic principles of the Union go beyond a purely formal notion of authority based on the transmission of the citizens’ will into institutional power. Instead, they require a substantive, effective realisation of that will – specifically, the guarantee of genuine popular sovereignty. Grounded in the principle of conferral and reinforced by Article 4(2) TEU, the EU legal order itself respects the legislative authority of national parliaments and the democratic will of the citizens in the Member States.

18 Ultra vires review plays a pivotal role in preserving democratic legitimacy within the European Union – specifically, the legitimacy that flows through the parliaments of the Member States. Its primary function is to uphold democracy within the European network of states, constitutions, legislative bodies, administrations, and judicial systems. By monitoring the limits of conferred competences, ultra vires review serves as a safeguard or compensatory mechanism critical for upholding democracy – in other words, it is democracy-specific. This is particularly significant for preserving individuals’ rights to self-determination. In the context of European supranational integration, ultra vires review exposes the diffusion of political responsibility, thereby promoting greater transparency and accountability in decision-making by EU institutions.

19 In principle, the CJEU is responsible for ensuring compliance with the division of competences within the EU. Even if a decision is incorrect, a competence review has still taken place. However, if a decision by the CJEU no longer meets the required methodological standards, the review is reduced to a merely formal check. In such cases, the substantive core of the European understanding of legitimacy is no longer upheld. At the same time, Article 2 in conjunction with Article 5(1) and (2) TEU allows for a decentralised review of competences by constitutional courts in the Member States. These courts supervise the boundaries of the EU’s derived authority to safeguard the substantive foundations of democracy – namely, meaningful parliamentary influence and effective popular sovereignty.

Rule of Law and Separation of Powers in the Judicial System

20 Several factors have contributed to the CJEU's de facto position as an almost unchecked authority within the EU legal order. These include the constitutionalisation of EU law, its limited embeddedness in a European public sphere, the CJEU’s dual role as both a constitutional and specialised court, the absence of sector-specific competence rules, and its broad, teleological approach to interpretation. This situation is further exacerbated by the fact that the CJEU increasingly positions itself not as the “guardian” of the EU legal order, but as the “engine of integration.” In this role, it applies double standards in its judicial review of competences: When reviewing infringements of EU law by Member States, the CJEU exercises strict scrutiny. By contrast, in cases where EU institutions themselves exceed their competences, it displays significant leniency. To date, the CJEU has found an overreach of competences by EU institutions only in four cases. In some judgments, the level of scrutiny applied to EU bodies is so minimal that it amounts to a superficial or merely evidentiary review. This approach conflicts with the EU’s commitment to representative democracy under Article 10(1) TEU, the right to effective legal protection, and the obligation to examine facts under Article 47 CFR and Articles 6 and 13 ECHR. This jurisprudence has contributed to a gradual shift of competences toward the EU without any formal treaty amendments. As a result, it undermines the legal basis of institutional action and weakens formal legitimacy within the EU. The expanding scope of EU competences, without a corresponding increase in democratic legitimacy, also diminishes the Union’s substantive legitimacy.

21 Within the European judicial system, the CJEU regards itself as the highest authority, positioned above the national constitutional courts. While the Court has repeatedly acknowledged both the EU’s lack of statehood and the limited scope of its competences, it nonetheless expands its jurisdiction into core areas of national constitutional law – thereby infringing upon the jurisdictional authority of the Member States' highest courts. This leads to a growing disconnect between the principles of direct applicability and primacy of EU law, on the one hand, and the foundational principle of conferral, on the other. It also results in EU law penetrating the most protected spheres of national constitutional orders. In doing so, the CJEU disregards the jurisprudence of national constitutional courts – even in areas where EU law and national constitutional law are closely interlinked.

22 In this context, ultra vires review plays a key role in safeguarding the separation of powers and establishing checks and balances within the European network of constitutional courts. A judicial equilibrium between the EU and the national level can be maintained through disagreement as well as ongoing dialogue. Clearly defining the limits of competence enhances legal certainty and builds trust in future steps toward integration. Moreover, ultra vires review offsets the CJEU’s limited capacity for internal control within the European constitutional system – a limitation resulting from the absence of a judicial hierarchy, insufficient public scrutiny, lack of opposition, and constrained legislative oversight. At the same time, it acts as a safeguard, protecting national constitutional systems from an unchecked assertion of EU authority.

Article 4(2) TEU: Protecting Constitutional Identity as a Systemic Exception to the CJEU’s Exclusive Authority to Invalidate EU Acts

23 Article 4(2) TEU directly reflects the considerations outlined above, which stem from the EU’s compound constitutional structure. This provision can be understood as implicitly acknowledging that, in strictly limited and extraordinary situations, Member States may invoke ultra vires review. As will be shown below, such an interpretation does not conflict with the general principles of EU law, but rather takes into account the structural diversity and constitutional identity of the Member States. Article 4(2) TEU may therefore be read as establishing a system-inherent exception to both the primacy of EU law and the CJEU’s exclusive jurisdiction to invalidate Union acts. In rare cases, this exception could be asserted procedurally through an ultra vires review, serving as a last-resort safeguard within the broader framework of European legal integration.

24 Article 4(2) TEU stipulates that “the Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government.” Fundamental constitutional structures within the meaning of Article 4(2) TEU can encompass a wide range of core constitutional principles, including specific expressions of democracy or the rule of law in Member States. However, the CJEU’s case law on the extent to which Member States may define and invoke their own constitutional identity remains inconsistent and highly context-dependent. For instance, in the M.A.S. and M.B. rulings involving the Italian Constitutional Court, the CJEU showed cautious openness to national constitutional reservations and signalled a willingness to engage in dialogue with national constitutional courts. In contrast, in cases involving the Romanian Constitutional Court’s constitutionally controversial jurisprudence, the CJEU rejected the admissibility of both identity review and ultra vires review under EU law.

25 The interpretation of the wording, structure, history, and purpose of Article 4(2) TEU confirms its character as a reference to national constitutions and the authority of national constitutional courts to define constitutional identity. The wording – which states that national identity is expressed “in their” fundamental constitutional structures – clearly points to domestic constitutions as the relevant legal source. Structurally, the provision complements Articles 4(1) and 4(3) TEU and establishes a binding limit on the Union’s integrative reach. Historically, the travaux préparatoires of the Constitutional Treaty show that responsibility for safeguarding constitutional identity was deliberately left to the Member States, in order to prevent a creeping expansion of EU competences. In terms of purpose, Article 4(2) is meant to protect core constitutional choices from being overridden by Union law. It functions similarly to self-judging clauses in international law, which allow states to make their own determinations, subject only to limited review. In this way, the provision establishes a direct link between Union law and national constitutional law and forms a key element of the EU’s composite constitutional structure. As a counterpart to national identity clauses such as Article 79(3) of the German Basic Law, Article 89(5) of the French Constitution, or Article 9(2) of the Czech Constitution, it opens Union law to core components of national constitutional orders. Defining what constitutes national identity ultimately falls to national constitutional courts, in line with the division of responsibilities in the European constitutional court network, while the CJEU is limited to checking for arbitrariness or abuse.

26 In narrowly defined exceptional cases, Article 4(2) TEU leads to a systemic suspension of the primacy of EU law and constitutes a procedural exception to the CJEU’s monopoly of interpretation. This consequence is inherent in Union law itself, since both the principle of conferral and the protection of national constitutional identity define structural limits to the scope of primacy. In narrowly defined exceptional cases, Article 4(2) TEU leads to a systemic suspension of the primacy of EU law and constitutes a procedural exception to the CJEU’s monopoly of interpretation. This consequence is inherent in Union law itself, since both the principle of conferral and the protection of national constitutional identity define structural limits to the scope of primacy. While the obligation to respect national identity under Article 4(2) TEU is generally relative, it becomes absolute where the core elements of constitutional identity are at stake. This core includes those values, structural principles, and norms that, under a Member State’s own constitutional order, are categorically excluded from being transferred to the Union – either because they are formally entrenched or because they are considered non-transferable in structural terms. Even where national constitutional principles coincide with the fundamental values enshrined in Article 2 TEU, their particular national expression enjoys absolute protection, precisely because those values themselves hold overriding importance within Union law. What matters is not whether the national constitution contains an explicit eternity clause, but whether – according to the domestic constitutional understanding – it defines an inviolable sphere of sovereign self-determination. In such cases, the obligation to respect national identity is not subject to balancing or proportionality review. Accordingly, the Member State’s interest in safeguarding this core outweighs the Union’s interest in legal uniformity. While disregarding such identity would amount to a systemic violation of constitutional self-government, the legal consequence within Union law – namely, the inapplicability of the respective EU measure in that Member State – is a limited and acceptable cost. The resulting impairment of uniformity and effectiveness is consistent with the nature of the EU’s legal order, particularly since the ultra vires review, as an expression of democratic self-determination, also serves the values enshrined in Article 2 TEU. It is therefore grounded in primary law via Article 4(2) TEU and constitutes a necessary procedural exception within the non-hierarchical, pluralistic structure of the European constitutional order.

27 It has long been assumed that only the identity review in the narrow sense corresponds procedurally to this provision. However, as comparative constitutional analysis shows, the ultra vires review – understood as a democracy-protecting form of identity review – is also embedded in the constitutional structures of numerous Member States. This applies particularly where it serves, as in the German and Czech constitutional traditions, to safeguard popular sovereignty or sovereign statehood. A qualified overreach of competences breaks the necessary link of democratic legitimacy between Union action and the national constitutional order, thereby infringing upon the constitutionally protected core of democratic identity. In such cases, the ultra vires review functions as the procedural mechanism for preserving this core, and must therefore be regarded not only as an expression of domestic identity clauses – such as Article 79(3) of the German Basic Law or Article 9(2) of the Czech Constitution – but also as a review mechanism permitted under Union law by virtue of Article 4(2) TEU. The jurisprudence of various national constitutional courts confirms this classification. Ultra vires review thus constitutes a procedurally legitimate expression of the Union’s obligation to respect national identity, reflecting both the multidimensional nature of the primacy principle and the institutional logic of the European constitutional court network.

No exclusion on the basis of conflicting EU law

28 From the CJEU’s perspective, ultra vires review by Member State constitutional courts violates EU law for several reasons: it threatens the uniformity and effectiveness of EU law, challenges the CJEU’s exclusive authority to declare EU acts invalid, and undermines the principle of equality among Member States and their citizens. However, these objections are not convincing from a doctrinal and legal-theoretical standpoint.

29 Ultra vires review does not undermine the CJEU’s exclusive authority to annul EU legal acts. While both the jurisprudence established in the Foto-Frost judgment and Article 267(1)(b) TFEU prohibit national courts from declaring EU acts invalid, national courts are not categorically barred from examining whether such acts exceed the competences conferred on the EU. When a national constitutional court reviews the scope of EU law on the basis of its act of assent, it applies a distinct standard – as confirmed by comparative constitutional law. This is not a parallel review of EU law, but a narrowly limited control, typically confined to manifest excess or arbitrary transgression of conferred competence. On the remedial level, a finding that an EU act is ultra vires does not invalidate it across the European Union; it merely renders the act inapplicable within the respective national legal order. Furthermore, the strict separation between the procedural question of Quis iudicabit? and the substantive principle of conferral appears to be a politically motivated construct – one that effectively grants the CJEU de facto authority over the very scope of its own powers (i.e. the judicial competence over competences).

30 Moreover, isolated ultra vires reviews can, in fact, strengthen the EU legal order in the medium and long term. They help build trust in the European integration process, as Member States are more willing to transfer additional competences when assured that the limits of such transfers will be respected. Conversely, if competences gradually extend beyond their original conferral, thereby weakening the link between direct applicability and the principle of conferral, the effectiveness and credibility of EU law risk being undermined.

31 The Member States have not – and, indeed, could not – conferred upon the CJEU the authority to determine the limits of its own judicial competence, as doing so would inherently restrict their own constitutional identity and spheres of competence. This is because the constitutional core of most Member States, often entrenched or unamendable, impose strict limits on the transfer of sovereign powers. The constitutional clauses authorizing the application of EU law only extend to acts adopted within the limits of conferred competences and consistent with national constitutional identity. This logic is reflected in Article 19(1), second sentence, TEU, which explicitly ties the CJEU’s jurisdiction to the principle of conferral.

32 Despite the CJEU’s recent explicit rejection of ultra vires review – albeit in the context of rulings involving constitutionally compromised courts – its judgment in M.A.S. and M.B. (Taricco II, 5 December 2017) contains indications that the Court acknowledges the legitimacy of constitutional review reservations. This effectively amounts to an exception to its asserted exclusive authority over competence disputes (judicial competence over competences). The ruling suggests a de facto recognition of identity review or, at the very least, a greater deference to national constitutional identity when weighed against the primacy and uniform application of EU law.

33 The CJEU’s new line of reasoning – seeking to justify absolute primacy and a comprehensive monopoly of jurisdiction through the principle of equality in Article 4(2), sentence 1 TEU – suffers from fundamental methodological flaws and is therefore unconvincing from the outset. It misinterprets the wording of Article 4(2) TEU, which imposes obligations solely on the Union, not on the Member States, ignores the internal structure of the provision, which expressly balances the equality of Member States with the respect for their national identities, and disregards its purpose as a protective provision in favour of the Member States rather than as a tool to expand Union competences. Moreover, it rests on a misapprehension of the function of the principle of equality within the EU legal order. Where a situation falls outside the scope of Union law, the principle of equality derived from it is inapplicable from the outset. Accordingly, the CJEU’s argument is circular, because ultra vires review, by definition, concerns precisely those cases where Union law is not applicable.

34 Since ultra vires review is not only compatible with the EU Treaties but also rooted in them, the involvement of national constitutional courts should be recognized as a general principle of EU law. Ultra vires review is grounded in the foundations of international law and the constitutional evolution of the EU legal order. It represents a procedural and institutional expression of the dual nature of the principle of conferral and safeguards the separation of powers within the constitutional court system – particularly, with respect to the legitimacy of European democracy. This review mechanism is justified under Article 4(2) TEU as a treaty-based exception to the CJEU’s exclusive authority to annul EU acts. As a legal concept, the ultra vires procedure reflects the compound structure of the EU, composed of interlinked constitutional systems and courts. Given the exceptional nature of this general legal principle, both the burden and the authority to justify invoking ultra vires review rest with the constitutional and supreme courts of the Member States. This approach creates a balanced legal framework that preserves the effectiveness and uniform application of EU law, while ensuring that ultra vires reviews remain legally contained and subject to clear procedural safeguards.

 

In summary, ultra vires review should be recognised as a structural element of the European legal order. As a procedural expression of the principle of conferral and as a safeguard for constitutional identity under Article 4(2) TEU, it serves a critical democratic and legal function. Rather than contradicting Union law, it preserves the legitimacy of EU integration by ensuring that the division of competences remains constitutionally anchored. The next and final part of this blogpost will examine how ultra vires review can be institutionalised within the existing framework of EU law – not as a threat to legal unity, but as a mechanism for structured constitutional dialogue.

Institutionalising Ultra Vires Review: The Four-Tier Test for Constitutional Courts

The following analysis outlines four cumulative stages that must be observed when invoking ultra vires review within the European constitutional framework. Rather than undermining the primacy of Union law, this structured procedure enhances mutual trust and legal certainty among Europe’s constitutional courts. It clarifies the limited and exceptional conditions under which national courts may act as guardians of their constitutional mandates – while safeguarding the rule of law, democratic legitimacy, and the institutional balance of the EU’s composite legal order.

 

1 The involvement of Member State constitutional courts in the common ultra vires procedure is based not only on their respective national constitutions and acts of assent, but also on Articles 2, 5(2), and 4(2) TEU. Read together with Articles 4(3) and 19 TEU, these treaty provisions give rise to four substantive requirements – or stages – of the ultra vires procedure as a legal concept under EU law. First, there must be a violation of the principle of conferral or of the integration programme as enshrined in Articles 5(2) and 4(2) TEU. At every stage, ultra vires review must comply with the principle of sincere cooperation (Article 4(3) TEU), respect the judicial function of the CJEU pursuant to Article 19 TEU, and fulfil its role as a democratic safeguard mechanism in line with Article 2 TEU, ensuring the legitimacy of EU action.

2 At the first stage, there must be a legal act that exceeds the competences conferred upon the EU. An ultra vires act exists where EU institutions act without a proper legal basis, go beyond the conditions set for the exercise of their powers, or breach prohibitive norms, thereby infringing on the competences of the Member States. It is important to note that neither the obvious nature nor the particular gravity of a competence breach is a requirement under EU law; such thresholds cannot be derived from Article 5(2) TEU. In preliminary ruling proceedings under Article 267 TFEU, it is sufficient for a national constitutional court to have doubts about whether an EU measure falls within the Union’s competences. If the court considers the case to involve an ultra vires act, it refers the question concerning the scope of Union law to the CJEU. The ultra vires procedure thus initially differs from an ordinary preliminary reference only in that it is triggered not by any legal error, but specifically by a suspected overstepping of competences. The decisive difference arises only at the stage of assessing the CJEU’s response – namely, in the standard of review applied in ultra vires control.

3 At the second stage, the constitutional courts of the Member States and the CJEU are required to cooperate and engage in judicial dialogue within the framework of the preliminary ruling procedure. From the perspective of EU law, ultra vires review necessitates the involvement of the CJEU in the decision-making process, as provided by Article 4(3) first subparagraph, Article 19 TEU, and Article 267 TFEU. From the perspective of national constitutional law, this cooperation is equally required due to the constitutions’ openness to European law. As a result, the ultra vires procedure constitutes a matter of shared responsibility, which can only be fulfilled through mutual cooperation and constructive dialogue in the context of the preliminary ruling process.

4 This requires the constitutional courts of the Member States to submit a clear and well-reasoned question to the CJEU, providing all the necessary elements for the Court to reach a conclusive judgment on the ultra vires issue. The submission must include detailed legal arguments indicating a possible overreach of competences. This transparency is essential for resolving a competence dispute through legal reasoning. There must be a realistic opportunity for one court to recognise the other’s legal position as methodologically sound – or even to be persuaded by it. A notable example of this cooperative approach is the GCC’s referral in the OMT case. The GCC comprehensively explained why it believed the OMT decision violated Article 119 TEU, Article 127(1) and (2), and Article 123 TFEU. At the same time, it demonstrated its willingness to cooperate by allowing room for the CJEU to interpret the legal issues in a way that aligned with its conferred competences, thereby upholding the spirit of judicial dialogue within the preliminary ruling procedure.

5 At the third stage, the CJEU is responsible for interpreting EU law, though its decisions remain subject to methodological scrutiny by the constitutional courts of the Member States. If a ruling fails to meet methodological standards, the CJEU exceeds its mandate under Article 19 TEU and may be overruled through ultra vires review. The CJEU’s authority to interpret EU law is derived from the Member States via the act of assent, as codified in Article 19(1) subparagraph 1, sentence 2 TEU. However, this authority is no longer democratically legitimised if the interpretation goes beyond what Member States could reasonably foresee when granting assent; this is particularly the case when the CJEU tends to judicial legislating rather than interpreting the law. The CJEU clearly oversteps its jurisdiction when it fails to respect the methodological boundaries of judicial interpretation. This lack of methodological appropriateness can take several forms: (a) contradictions and inconsistencies in case law that affect the outcome, (b) disregard for standard methods of legal interpretation, (c) failure to engage with arguments raised by the referring court, (d) arbitrary judicial development, and (e) complete neglect of constitutional standards in its review. In such cases, the effective control of jurisdiction is no longer ensured, and the fallback function of national constitutional courts is reactivated as to protect the division of competences and uphold the legitimacy of EU action.

6 The CJEU’s Weiss judgment illustrates an ultra vires ruling that lacks methodological appropriateness due to internal contradictions and inconsistencies (a). Specifically, the Court applied the proportionality test to EU institutions in a far more superficial manner – without justification – than it typically does when reviewing acts by Member State authorities. Furthermore, the CJEU’s complete disregard for the economic policy implications of the PSPP conflicted not only with its reasoning in Gauweiler but also with its general approach in other areas of EU law.

7 A further serious methodological error (b) lies in the CJEU’s failure to apply the established methods of legal interpretation – such as textual analysis, historical context, systematic structure, teleological reasoning, and comparative law. The constitutional traditions of the Member States set boundaries for European legal methodology and require that the CJEU’s interpretative approaches remain consistent with these traditions. CJEU rulings must be sufficiently reasoned to allow for public scrutiny and review by other courts, as mandated by Article 36(1) of the CJEU Statute and Article 87(m) of the CJEU Rules of Procedure. If the CJEU disregards relevant facts or the arguments raised by parties to the case, this may result in legally unintelligible outcomes. A notable example is the Landtová judgment, in which the CJEU ignored both the wording of the European Migrant Workers Regulation and the historical context surrounding the dissolution of Czechoslovakia.

8 Based on its judicial function under Article 19 TEU and the principle of sincere cooperation, the CJEU is required to provide a sufficiently reasoned response to preliminary references, particularly regarding alleged breaches of competence (c.). The third category of judgments that fails to meet methodological standards thus consists of CJEU rulings that do not adequately address the concerns raised by the referring constitutional or supreme court. A key example is the CJEU’s ruling in Weiss. Among other issues, the GCC asked whether the PSPP infringed Article 119, Article 127(1) and (2) TFEU, as well as Articles 17–24 of the Protocol on the Statute of the ESCB and the ECB. The GCC identified the ECB’s failure to properly assess the proportionality of its measures as a central issue in determining whether it had acted within its competence. Specifically, the GCC was concerned about the economic policy effects of the ECB’s measures, which had previously gone unexamined. However, the CJEU did not take these detailed objections seriously and failed to engage with the economic impact in a thorough or coherent way. As a result, a proper proportionality assessment, in line with established legal methodology, was not carried out.

9 Fourth, arbitrary judicial lawmaking constitutes a case of methodological failure (d.). A clear example is the CJEU’s Mangold judgment, where the Court “created” the Union law principle prohibiting age discrimination based on a questionable and insufficient comparative analysis, without identifying a clear textual, structural, or historical basis in the Treaties. This overstepped the permissible bounds of judicial interpretation, amounting instead to an unauthorised amendment of primary law. Legitimate judicial development of the law serves to fill unintended gaps, resolve conflicts of fundamental values, and ensure fair adjudication in individual cases, but it is strictly limited: it must not result in legislative correction, encroach upon areas reserved for political decision-making, or undermine the principle of conferred powers. Furthermore, any judicial development must meet heightened requirements of justification; the comparative analysis must be comprehensive, transparent, and logically coherent, and particular care must be given to respecting the division of competences between the Union and the Member States.

10 The fifth category in which the CJEU manifestly exceeds its jurisdiction arises when it fails to fulfil its institutional judicial role and thereby falls short of the constitutional standards enshrined in Article 19 in conjunction with Article 2 TEU. This occurs, for example, when the Court fully or partially fails to fulfil its duty of judicial review – particularly with respect to executive or independent institutions – or when it applies the intensity of review arbitrarily (e.). A clear example of this is once again the Weiss judgment, where the CJEU effectively abdicated its judicial oversight role by conducting only a cursory review limited to assessing whether the ECB had committed “obvious” overreaches of its mandate. The Court merely asserted the proportionality between monetary policy measures and their economic consequences, rather than actually examining their consequences. This represents a fundamental methodological error: proportionality between ends and means cannot be meaningfully affirmed without first identifying and evaluating the actual effects. Such an examination was not even possible in this case, as the CJEU never clearly identified the economic implications of the ECB’s actions. This fifth category of judgments, which depart from established legal methodology by neglecting rule-of-law standards in judicial review, directly underscores the need for ultra vires control. It serves to prevent gradual, unchecked shifts of power towards the EU level and safeguards Member States’ authority over their own competences as well as the democratic self-determination of their citizens.

11 Although ultra vires review is a tool for safeguarding the legitimacy of EU action, it must be understood within the broader context of EU law. It is rooted in the democratic principles of the European Union and contributes to maintaining the separation of powers and upholding the rule of law. Therefore, its legitimacy and application – especially during the fourth stage of the procedure – are tied to compliance with the rule-of-law requirements set out in Article 2 TEU.

12 Constitutional courts retain a limited degree of discretion in interpretation and judgement. This means that, in exceptional cases, both the activation and rejection of ultra vires review by different Member State constitutional courts may be permissible with respect to the same legal issue. This outcome is also consistent with the EU’s interconnected legal structure, particularly given that the CJEU’s jurisdiction is derivative and, unlike the constitutional courts of the Member States, the CJEU does not possess the competence to determine the scope of its own powers.

13 Article 2 TEU implies a specific prohibition of abuse of rights within Union law, which also limits the scope of ultra vires review. Such review is only permissible where it serves its purpose of safeguarding democratic legitimacy within the Union through constitutional courts of the Member States. It becomes abusive – and therefore contrary to Union law – where it is functionally disconnected from that purpose, for example: (1) where the subject matter is not clearly limited, (2) where the ruling is not embedded in a consistent, EU-friendly line of jurisprudence, (3) where the judiciary is visibly instrumentalized by the executive, or (4) where the legal consequences are left unclear and risk systemic disruption. In these cases, the review no longer safeguards constitutional identity but undermines the legal order. The CJEU may intervene in such situations but is limited – under Article 4(2) and Article 4(3) TEU – to a review for abuse or arbitrariness, following a good faith standard.

14 Ultra vires review must also be understood within the broader context of the horizontal network of constitutional courts. It should not be viewed in isolation but in light of the shared constitutional traditions and judicial decisions of the Member States. This requires mutual consideration of rulings by other constitutional courts. Any departure from these decisions must be appropriately justified and take into account both national and EU legal perspectives. Such an approach ensures coherence in judicial reasoning and alignment with European values and legal principles.

15 In summary, ultra vires review should be understood as a shared responsibility within the European network of constitutional courts. Legally, Member State constitutional courts retain ultimate authority to deliver final judgments concerning their own legal systems. At the same time, the CJEU holds a “right of first access” based on its interpretative monopoly, enabling it to resolve the vast majority of jurisdictional disputes with legal certainty. However, this presupposes that the CJEU exercises a level of judicial scrutiny that genuinely safeguards the principle of conferral and, by extension, the (national) sovereignty of the Member States. This division of roles aligns with the institutional functions of the CJEU and the constitutional courts in the European constitutional court system. The CJEU, as the Union’s court, is responsible for interpreting and ensuring the effectiveness of EU law and is particularly well positioned to do so given its institutional proximity to Union-level issues. In contrast, the constitutional courts of the Member States are not tasked with reinterpreting EU law, but rather with safeguarding national constitutional identity. By observing this task, they also preserve the coherence of the EU’s heterogeneous and pluralistic constitutional value system.

16 The following thesis may serve as a forward-looking conclusion: The GCC’s PSPP judgment may well be remembered as the starting point for establishing effective competence control as a shared responsibility at the level of EU law. Just as the GCC’s Solange I case law was initially met with strong criticism but ultimately played a key role in developing robust European fundamental rights protection, a similar evolution may now be underway. The growing legal conviction among Member States’ constitutional courts – that they may invoke democracy-protecting constitutional reservations such as ultra vires review – is likely to motivate the CJEU to fulfil its institutional judicial role with greater rigour, particularly in complex jurisdictional matters at the intersection of the European composite legal order. In doing so, the CJEU can contribute meaningfully to enhancing legal certainty and legal confidence across the EU – two foundational elements of the rule of law and key drivers of European integration in a legal community. At the same time, it remains evident that if the CJEU consistently and credibly reviews the limits of competences under EU law, the constitutional courts of the Member States will have no cause to resort to ultra vires review.

Ultra vires review is not a relic of constitutional nationalism, but a structured expression of judicial responsibility in a pluralistic Union. When invoked under the four cumulative conditions identified in this part – (1) a manifest breach of conferred powers, (2) sincere judicial dialogue through the preliminary reference procedure, (3) a demonstrable failure of the CJEU to meet the standards of legal methodology, and (4) compliance with the democratic and rule-of-law principles of Article 2 TEU – it strengthens rather than weakens the authority of EU law. These requirements ensure that ultra vires review is not exercised arbitrarily but remains embedded in a framework of institutional cooperation, interpretative discipline, and mutual respect. Properly understood, ultra vires review complements the role of the CJEU by acting as a constitutional backstop: it upholds the foundational balance between Union effectiveness and Member State sovereignty. If the CJEU fulfils its institutional role with methodological clarity and judicial restraint, ultra vires review will remain what it was always meant to be – a principled exception, not a systemic threat.