National Limits, European Claims: The Ultra Vires Conflict in EU Constitutional Law (part 1)

 

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: Luxofluxo, via Wikimedia Commons

 

Who has the final say on where the European Union’s competences end? This question lies at the core of one of the most debated issues in EU constitutional law: ultra vires review. Long seen as an instrument of national resistance to the primacy of EU law – especially in the case law of the German Federal Constitutional Court (GCC) – ultra vires review is often portrayed as an outlier. But that view misses the broader reality. Across the EU, many constitutional courts claim a residual authority to decide whether EU institutions have overstepped their conferred powers.

This blogpost – the first of two parts – re-examines the legal nature of ultra vires review. In 83 theses, it argues that ultra vires review is not just a defensive reaction, but a structural element of the European legal order. It operates within a pluralist and composite system in which both the CJEU and national constitutional courts have essential and complementary roles. Part One begins by tracing the national doctrines that support ultra vires review, showing how firmly it is anchored in the constitutional traditions of many Member States (I.). It then turns to the institutional tensions between national courts and the CJEU, focusing on the latter’s claim to exclusive authority over the scope and limits of Union law (II.).

I. Ultra Vires Review as a European Practice: Constitutional Courts and the Limits of Integration

1 Ultra vires review enables Member States’ supreme and constitutional courts to (indirectly) assess whether EU institutions have acted beyond the powers conferred upon them by the EU Treaties. These courts justify their role by emphasizing that the EU operates on the basis of limited and conferred competences (the principle of conferral) and that national constitutions impose boundaries on the application of EU law. They argue that any exercise of power not explicitly transferred to the EU by the Member States constitutes an infringement on national – and ultimately popular – sovereignty. Accordingly, ultra vires review serves as a democratic safeguard, protecting the constitutional autonomy of Member States.

2 The CJEU, by contrast, regards the EU legal order as autonomous and independent of Member States’ constitutions. It views ultra vires review as an infringement on its exclusive authority to declare EU acts invalid. The Court argues that such reviews undermine the uniformity and effectiveness of EU law, weaken the integrity of the EU judicial system, and disrupt the principle of equality among Member States. In its view, recognising ultra vires review would ultimately threaten the effectiveness of the European project as a whole.

3 Ultra vires review by national constitutional courts can potentially conflict with the CJEU’s jurisdiction under Article 19(1) EU. However, the core issue in the ultra vires debate is clear: the EU is bound by the principle of conferral, as set out in Article 5(1) and (2) TEU. What remains unresolved is the procedural question: Which court has the final authority to decide whether EU institutions, bodies, offices, or agencies have exceeded their competences? Quis iudicabit? The EU Treaties contain no explicit conflict-of-law provision to resolve judicial disputes over ultimate decision-making power in matters of competence.

4 This thesis examines ultra vires review as a legal institution within EU law and explores how a common ultra vires procedure could be structured in accordance with the EU Treaties. To this end, it compares the CJEU’s interpretation of EU law with the fundamental principles enshrined in the Treaties, and analyses the extent to which the perspectives of national constitutional courts have been integrated into EU legal doctrine. The central question is whether ultra vires review can be considered a legal concept within EU law, and to what extent constitutional courts should be involved in a collective ultra vires procedure. The study is based on a comprehensive analysis of the constitutional and EU law foundations of ultra vires review. Its aim is to determine whether the power of constitutional courts to declare EU measures ultra vires and inapplicable in their domestic legal systems constitutes a general principle of EU law.

5 In most EU Member States, constitutional reservations concerning the application of EU law exist. Courts in Germany, Denmark, France, the Czech Republic, and Poland have already declared CJEU judgments inapplicable on the grounds that they constituted ultra vires acts, i.e. acts exceeding the EU’s conferred competences. Moreover, constitutional and supreme courts in many other Member States have adopted similar reservations, serving comparable functions in safeguarding national constitutional limits within the EU legal framework.

6 The GCC’s approach to ultra vires review is based on Article 23(1) sentences 2 and 3, in conjunction with Article 20(1) and (2), and Article 79(3) of the German Basic Law.  By applying ultra vires review, the GCC ensures that EU law remains democratically legitimate in Germany, thereby adhering to the so-called “integration programme” (Integrationsprogramm) defined by the parliaments’ acts of assent. This review is triggered only in cases of manifest and structurally significant overreach of competences and is handled exclusively by the GCC, with a mandatory referral to the CJEU. The GCC respects the CJEU’s interpretation of competence limits and confines itself to reviewing the methodological soundness of that interpretation. The core rationale behind ultra vires review – the protection of popular sovereignty – is persuasive. The concept of “responsibility for integration” (Integrationsverantwortung) illustrates how the review mechanism serves to preserve democratic legitimacy. This responsibility, entrusted to German constitutional bodies, compensates for the partial loss of German citizens’ political self-determination resulting from the transfer of sovereign powers to the EU. While ultra vires review does not interfere with the substance of EU decisions, it ensures democratic openness by exposing breaches of legitimacy and blurred lines of accountability. In doing so, it partially offsets the absence of a fully developed European public sphere, enabling citizens to retain as much political self-determination as possible. As a last resort, it prevents citizens from being excluded from fundamental political decisions affecting their community.

7 In Denmark, the Højesteret bases its ultra vires review on the principle of legal certainty as articulated in § 20(1) of the Danish Constitution. This provision allows for the transfer of sovereign powers to international organisations and the EU, but only “to a specified extent.” The court’s justification is formal yet consistent, as linked directly to the principle of conferral. The scope of EU law's primacy is defined by the national act of assent; if the EU extends its competences beyond what is covered by that act, it is considered a violation of § 20, which falls under the scrutiny of the Højesteret. However, the standard of review and the limits of ultra vires control compatible with EU law remain vaguely defined in Danish case law. In the Carlsen v. Rasmussen judgment, the application of ultra vires review appeared to be confined to particularly exceptional circumstances and was closely tied to the outcome of the CJEU’s preliminary ruling. By contrast, in the Ajos case, the Højesteret upheld an ultra vires finding without elaborating on any such restrictive conditions, leaving the precise contours of the doctrine unclear.

8 In France, a flexible balancing of principles allows both the Conseil constitutionnel and the Conseil d'État to indirectly review the principle of conferral, alongside questions of constitutional identity. Although both courts formally recognise the primacy of EU law, they continue to treat the French Constitution as the supreme legal authority, in line with Article 88-1 of the French Constitution. To reconcile these positions, the courts have developed two review mechanisms: the identity test (employed by the Conseil constitutionnel) and the equivalence test (applied by the Conseil d’État). The core objective of both is to ensure that EU law maintains a level of protection equivalent to that guaranteed by the French Constitution. Within this broad, principle-based balancing approach, substantive legal issues can be linked to the preliminary question of competence, as demonstrated in the French Data Network decision by the Conseil d’État. Functionally, the equivalence test renders a separate ultra vires review redundant, thereby allowing for greater flexibility in individual judgments. However, the fact that the standard of review remains implicit – particularly where constitutionally protected interests are vaguely defined – can lead to diminished legal certainty.

9 The independent Polish Constitutional Tribunal – prior to the judicial reforms introduced by the PiS government – based its ultra vires review on Article 8(1) in conjunction with Article 90(1) of the Polish Constitution. According to Article 8(1), the Polish Constitution remains the supreme law of the Republic of Poland. Article 90(1) permits the transfer of certain competences to the EU, granting them priority of application. However, any subsequent expansion of competences must still comply with the requirements of Article 90. For the Polish Constitutional Tribunal, the procedural review mechanism was regarded as a necessary safeguard for the substantive principle of limited conferred powers. Although the procedure and standard of review were never clearly defined, the ultra vires review remained confined to exceptional cases involving a significant and manifest overreach of competences, and required a prior referral to the CJEU. In this respect, the Tribunal’s case law was largely modelled on that of the GCC. However, the more recent ultra vires ruling in case K 3/21, issued by a Constitutional Court now widely viewed as politically aligned, has been criticised as politically motivated and stands in clear contradiction to fundamental principles of EU law.

10 The Czech Constitutional Court bases its ultra vires review on Article 10a, in conjunction with Article 9(2) and Article 1(1) of the Czech Constitution. Under Article 10a, the validity of EU law in the Czech legal system depends on the national acts of assent. The ultra vires review serves to protect democratic self-determination and state sovereignty, both of which are unalterably safeguarded under Article 9(2) in conjunction with Article 1(1). The Court’s justification for ultra vires review therefore goes beyond the formal principle of conferral, encompassing broader substantive constitutional values such as sovereignty and self-determination. However, the legal standard governing Czech ultra vires review remains underdeveloped. Given that the Constitutional Court recognizes the CJEU’s exclusive jurisdiction to declare EU acts invalid, it confines its own review to “very exceptional” cases as a measure of last resort. In its ultra vires decision in Holubec, however, the Court did not clarify the criteria for such exceptional cases and declined to refer the matter to the CJEU, thereby failing to adequately observe the duty of cooperation under EU law.

11 The Hungarian Constitutional Court’s judgment No. 22/2016 (XII. 5.) on constitutional identity and ultra vires review – alongside the Polish judgment K 3/21 – clearly illustrates the instrumentalisation of these control mechanisms. Rather than serving as an independent instrument of constitutional oversight, they function primarily as political gestures by captured courts in favour of their respective governments. The Hungarian ruling lacks dogmatic coherence and is not grounded in a legal tradition compatible with EU law. Instead, it relies on a superficial and overly modular legal comparison that lacks both depth and consistency. The most serious flaw, however, is the absence of a meaningful commitment to dialogue and cooperation with the CJEU. While the judgment formally invokes a willingness to engage, it fails to substantiate this claim with any concrete standards compatible with European legal principles.

12 In an obiter dictum to its judgment No. 62/2016, the Belgian Constitutional Court addressed the constitutional limits of the EU legal order. It based its constitutional identity reservation in Article 34 of the Belgian Constitution, which permits the transfer of sovereign powers to international organisations and the EU, but only to a limited extent. Article 34 also implies that the validity of EU law within the Belgian legal order is conditional upon a constitutional review of its boundaries. The provision does not grant EU institutions a carte blanche, i.e. a general or unlimited authorisation to act. The identity review was central to the Court’s reasoning. At the same time, an ultra vires restriction is implicitly embedded in the constitutional logic of conferral through the national delegation of powers under Article 34 – even if not expressly articulated as such.  

13 The Estonian State Court defines the sovereignty of the Estonian people and state as establishing the constitutional boundaries of the EU legal order. While the primacy of EU law is acknowledged, any treaty amendments or expansions of competences must be legitimised by the Estonian parliament in order to have domestic legal effect. The Court thus assesses whether the delegation of competences results in a constitutional infringement and whether such delegation has been sufficiently legitimised through parliamentary approval. Since neither the autonomy nor the absolute primacy of EU law is recognised and the validity of EU law is grounded in the Estonian Constitution, there exists a clear constitutional basis for the potential future development of an ultra vires review.

14 In Ireland, the primacy of EU law must not override the country’s constitutional identity, which includes essential fundamental rights – such as the right to life – as well as legislative and judicial sovereignty, the principle of democracy, and, most importantly, the sovereignty of the people. This constitutional identity, as anchored in Article 5 of the Irish Constitution, imposes clear limits on integration into international organisations, including the EU. However, the Irish Constitution and the Irish Supreme Court adopt a distinct approach to safeguarding popular sovereignty: they place primary emphasis on maximising democratic legitimacy at the point of transferring sovereign powers. As a result, any such transfer to the EU requires a constitutional amendment, which in turn must be approved by referendum.

15 The Italian Constitutional Court bases its constitutional reservation (controlimiti) on the principle of Italian sovereignty, which – although it can be limited by the national legislature – cannot be fully relinquished. The Court examines whether such limitations infringe upon fundamental rights, essential constitutional principles, or the elements of constitutional identity. Since the primacy of EU law is viewed as a consequence of the domestic limitation of sovereignty under Article 11 of the Italian Constitution, the ultra vires reservation is implicitly embedded in the Constitution. This provision enables the Corte Costituzionale to review national acts of assent for their compatibility with the fundamental values of the Italian Constitution. The concept of ultra vires review is most clearly articulated in the Fragd decision, where the Court not only scrutinised the CJEU’s interpretation of EU law but also questioned whether the CJEU had acted beyond its conferred competences. However, due to the Court’s broad understanding of identity review, ultra vires review has been functionally sidelined, operating instead as a supplementary mechanism of constitutional oversight.

16 The Croatian Constitutional Court has indicated in several obiter dicta that it does not recognise an absolute or unlimited primacy of EU law. Instead, it affirms that constitutional limits apply to the primacy of EU law within the Croatian legal system.

17 The Latvian Constitution provides the doctrinal foundations for a potential future ultra vires review. Article 68 serves as the constitutional basis for the primacy of EU law within the Latvian legal system. According to the case law of the Latvian Constitutional Court, the ratification of the EU treaties is compatible with the Constitution only insofar it does not undermine fundamental constitutional values, particularly the principle of popular sovereignty. The Court has affirmed that compliance with these core values remains subject to judicial review, even in the context of European integration.

18 According to the judgment of the Lithuanian Constitutional Court, the primacy of EU law is derived from Section 2 of the Constitutional Law and is therefore rooted in domestic law. In exceptional cases, where an EU legal provision is found to conflict with the Lithuanian Constitution, that provision would have no effect within the Lithuanian legal order. However, the case law on the relationship between EU law and the Lithuanian Constitution remains underdeveloped and requires further clarification, particularly concerning its alignment with EU law principles. From a constitutional perspective, an ultra vires review would be legally permissible.

19 In Spain, the transfer of sovereign powers to the EU is governed by Article 93 of the Spanish Constitution. The Spanish Constitutional Court distinguishes between the formal supremacy (supremacía) of Spanish constitutional law and the primacy (primacía) of EU law, not conceiving them in a hierarchical relationship but rather as separate spheres of application. The transfer of competences under Article 93 imposes constitutional limits on European integration, requiring EU law to remain compatible with the fundamental principles of Spain’s social and democratic constitutional state. The Court explicitly reserves a constitutionally entrenched power of final decision, derived from Article 93, which it may invoke in exceptional cases to safeguard the sovereignty of the Spanish people and the supremacy of the Spanish Constitution. Although the Court has acknowledged the hypothetical possibility that EU primary law could exceed conferred competences – potentially infringing on Spanish sovereignty and the constitutional core – it has not explicitly established an ultra vires review as a distinct legal instrument.

20 In Greece, the primacy of EU law is grounded in Article 28(2) and (3) of the Greek Constitution. These provisions also establish limits to the primacy of EU law, particularly concerning human rights, the foundations of the democratic state, and national sovereignty.

21 In Portugal, according to Article 8(4) of the Portuguese Constitution, EU law is applicable within the national legal system only insofar as it respects the principles of the democratic constitutional state. The Portuguese Constitutional Court has ruled that in a multi-level constitutional system, where multiple legal orders coexist, legal norms that have domestic effect cannot override the Constitution. Accordingly, EU law must respect the national identity of Member States, including Portugal.

22 In Romania, the transfer of certain powers to the EU occurs through the national act of assent, in conjunction with Article 148(1) of the Romanian Constitution. The Romanian Constitutional Court derives the primacy of the national Constitution over EU law from Article 11(3) of the Constitution. Recent rulings suggest that the Court is strategically asserting the supremacy of the Romanian Constitution in relation to EU law, positioning it as a counterweight within the national legal order.

23 In Luxembourg and Slovakia, the relationship between EU law and national constitutional law remains unclear. In Malta, Article 6 of the Maltese Constitution explicitly designates the Constitution as the highest source of law within the national legal system. A similar position exists in Bulgaria, where Article 5(1) of the Bulgarian Constitution states that no other laws may contradict the Constitution. The Finnish Parliamentary Committee on Constitutional Affairs has recently begun to address both the ultra vires issue and the protection of core constitutional principles. In Slovenia, the primacy of EU law is based on the national act of assent in conjunction with Article 3a(1) of the Slovenian Constitution, making an ultra vires challenge possible in the future. In Sweden, courts generally acknowledge the primacy of EU law, though constitutional reservations are not ruled out. In Austria, the transfer of sovereign powers to the EU is carried out through the parliament’s act of assent and is subject to Article 44(3) of the Austrian Constitution, which offers special protection to the fundamental principles of the Federal Constitution. The Austrian Constitutional Court has recently implicitly recognised the principle of democracy as part of Austria’s constitutional identity. Only in the Netherlands and Cyprus, the absolute primacy of EU law is generally assumed, though even there, its validity is still grounded in national acts of assent by the Member State parliaments. Finally, in the United Kingdom, which formally left the EU on 31 January 2020, the Supreme Court continues to apply an ultra vires doctrine, drawing on the jurisprudence of the GCC.

24 In summary, ultra vires review is not a concept limited to Germany; it is explicitly recognised in the case law of six EU Member States: Denmark, Germany, the Czech Republic, France, Poland, and Hungary. Furthermore, constitutional rulings and legal foundations in Belgium, Estonia, Italy, and Latvia also acknowledge the possibility of invoking ultra vires arguments. Additionally, Croatia, Lithuania, Greece, Romania, Slovenia, and Spain accept at least the doctrinal basis for a potential ultra vires review. A significantly higher number of Member States conduct some form of identity review or apply comparable constitutional safeguards. In total, 18 Member States – a clear majority – explicitly reject the notion of absolute primacy of EU law. This number is particularly notable given that in several of the remaining Member States, the scope of EU law's primacy has yet to be addressed, often due to the absence of constitutional jurisdiction.

25 The CJEU’s justification of the primacy of EU law based on its autonomy concept is not accepted by any national constitutional court. Instead, the validity and precedence of EU law are understood to derive from the acts of assent passed by the parliaments of the Member States, which authorize the application of EU law within their respective legal systems.

26 On this basis, the clear majority of constitutional and supreme courts in the Member States do not accept the absolute primacy of EU law over their national constitutions, but instead assert constitutional reservations. In most EU countries, it is standard practice to assess EU treaties in light of national constitutional law. Many constitutional courts extend these reservations to secondary EU law, typically through one of three types of review: the Solange review (equivalent protection doctrine), identity review, and ultra vires review. These mechanisms serve to protect various dimensions of constitutional identity – whether it involves safeguarding fundamental rights, preserving core substantive constitutional principles, or defending national sovereignty and the integration programme.

 

II. The CJEU’s Constitutional Vision: Autonomy, Primacy, and the Rejection of Ultra Vires Review

Taken together, the constitutional jurisprudence of the Member States reveals a clear trend: ultra vires review is not an isolated German construction, but a widespread legal safeguard anchored in the principle of conferred powers. At least eighteen Member States explicitly reject the idea of absolute primacy and maintain constitutional reservations, particularly where Union acts threaten to undermine the democratic legitimacy or constitutional identity of the state. The CJEU, by contrast, categorically rejects the legitimacy of such review. This is not just a matter of institutional competition – it reflects a deeper constitutional conflict. The CJEU views EU law as an autonomous legal order that does not depend on national constitutions for its validity. Based on this view, it claims absolute primacy of EU law over all national norms, including constitutional provisions. However, this conception is neither codified in the Treaties nor accepted by most Member States. It rests on a dogmatic assumption: that the EU legal order is self-originating. Nevertheless, the CJEU relies on it to support a far-reaching claim to institutional supremacy. Over time, the CJEU has translated its concept of autonomy into a hierarchical constitutional structure. It does so not only through substantive doctrines like absolute primacy, but also via procedural mechanisms that establish the CJEU as the final judge of its own jurisdiction. The result is a constitutional logic in which Member States lose both the ability to define the limits of EU competences and to protect their constitutional identity.

 

1 The CJEU rejects ultra vires review based on its interpretation of the primacy of EU law as being absolute. However, this concept of primacy has never been explicitly codified in the EU treaties. The Protocol on the Application of the Principles of Subsidiarity and Proportionality, annexed to the Treaty of Amsterdam, merely alluded to the primacy of EU law. A formal codification was intended in the Treaty establishing a Constitution for Europe, yet the ratification of this treaty ultimately failed. The subsequent Treaty of Lisbon did not include a binding provision on primacy either. Instead, only a legally non-binding interpretative declaration was attached, which referred back to the CJEU’s established case law on the matter. Similarly, Article 20 of the Unified Patent Court Agreement (UPCA) does not contain any provision explicitly stipulating the primacy of EU law.

2 According to established CJEU case law, all forms of EU law take precedence over national law, including national constitutional provisions and the jurisprudence of constitutional courts. The CJEU seeks to establish an absolute hierarchy, placing EU law above national constitutional orders. This position, however, directly conflicts with the Member States’ understanding of constitutional limits, which are considered inviolable. Since ultra vires review is grounded in the constitutional identity of the Member States, this creates a central point of tension between the CJEU’s approach and the constitutional reservations upheld by national constitutional courts.

3 The CJEU’s central argument for asserting absolute primacy is the autonomy of the EU legal order – the idea that EU law does not derive from the legal systems of the Member States. This key concept of autonomy not only forms the basis for the absolute primacy of EU law but has also been invoked in recent CJEU judgements to justify a comprehensive monopoly on jurisdiction within the European constitutional court network. Its claim to institutional supremacy has evolved into a specific application of the autonomy principle and is used to reinforce and safeguard the absolute primacy of EU law.

4 In contrast to other legal systems, the CJEU has institutionally expanded its concept of autonomy, aiming to secure itself a monopoly over jurisdiction and competence vis-à-vis national constitutional and supreme courts. Through infringement proceedings and by extending state liability to cases where national supreme courts violate EU law, the CJEU has structurally integrated and subordinated national courts within the broader European judicial system. This development marks a clear shift from a cooperative relationship among courts of equal standing to a hierarchical judicial structure with the CJEU at the top. Since the Portuguese Judges ruling, the CJEU has also gained the ability to issue detailed substantive criteria regarding the organisation of national judicial systems. Looking ahead, this could even extend to national courts being required to disregard ultra vires rulings issued by their own constitutional courts – invoking the overarching principle of the rule of law as justification.

5 At the intersection with international law, the CJEU has progressively strengthened its institutional position to safeguard the uniform application of EU law, including in relation to international courts. While this analysis does not focus on the EU’s external legal relationships, it is nonetheless clear that the CJEU understands the autonomy of EU law not only as independence from Member States, but also as a means of protection from external judicial interference. In institutional terms, the concept of autonomy thus translates into a reluctance to cooperate with “competing” judicial actors within a multi-level international legal order. The CJEU positions itself as the central authority in the European legal order, thereby establishing a hierarchy in which all legal systems interacting with EU law – and all courts whose jurisdiction overlaps with that of the CJEU, including the ECHR, arbitration tribunals, and national constitutional courts – are subordinated to EU law.

6 In the procedural and institutional conflict surrounding ultra vires review, the CJEU underscores the link between the autonomy of EU law, its absolute primacy, and the question of competences. It treats the scope of EU law's validity – including its limits – as falling within the domain of its absolute primacy. Consequently, national courts are never permitted to declare EU legal acts invalid, even if the alleged invalidity stems from an overreach of competences. Relying on this understanding of primacy and autonomy, the CJEU claims exclusive authority to determine both the validity and outer boundaries of EU law – effectively asserting judicial competence over competences. Thus, the CJEU has recently rejected any form of constitutional reservation by Member States in this regard.

7 Based on this interpretation, the concept of autonomy becomes a code for the CJEU’s exclusive jurisdiction over all matters concerning EU law. Any court addressing issues that affect EU law must defer to the CJEU’s final judgment. This absolute monopoly on judicial authority effectively excludes the possibility of cooperation within the network of constitutional courts – even with regard to questions of jurisdiction. The CJEU disregards the views of the Member States, treating its notion of autonomy as overriding even standards set out in primary EU law. Institutionally, this results in the absolutisation of the Court’s role. Under the guise of autonomy, the CJEU claims the power to continuously expand the boundaries of its jurisdiction, both within the EU and in relation to external actors.

 

Taken together, the conflict over ultra vires review reveals a deeper constitutional tension within the EU legal order: while the CJEU seeks to consolidate a uniform system based on the principle of absolute primacy, most national constitutional and supreme courts insist on the conditional nature of EU law’s validity, grounded in their domestic constitutional orders. This divergence cannot be resolved by institutional assertion alone. It requires a principled legal response that reflects the composite structure of the Union. Ultra vires review offers such a response. Far from being a disruptive anomaly, it is a functional safeguard embedded in the constitutional practice of a clear majority of Member States. It reflects the principle of conferral under Article 5(1) and (2) TEU and embodies the idea that competences remain with the Member States unless expressly transferred. The absence of a conflict-resolution mechanism in the Treaties does not negate the legitimacy of this review; rather, it implies the need for constitutional safeguards that ensure the accountability of EU institutions within the limits of conferred powers. In this light, ultra vires review is not merely a national instrument of resistance, but an emerging general principle of EU law. It serves to stabilise the Union’s legal architecture where the Treaties are silent, and it institutionalises constitutional pluralism without dissolving legal unity. Properly understood, it expresses a shared constitutional responsibility for the integrity of the European legal order. The second part of this blogpost examines whether – and how – ultra vires review can be understood as structured, treaty-compatible mechanism that operates as a joint procedure between national courts and the CJEU.

 

The beginning of the end for Poland’s so-called “judicial reforms”? Some thoughts on the ECJ ruling in Commission v Poland (Independence of the Supreme Court case)

Laurent Pech, Professor of European Law, Middlesex University London

Sébastien Platon, Professor of Public Law, University of Bordeaux

Imagine a faraway land where a government and a parliament dominated by the same party decide to retroactively lower the retirement age of the judges working for the country’s supreme court. Imagine that this change is being presented as a “reform” (allegedly) needed to hold to account judges (allegedly) “shamefully involved” in the country’s previous communist regime which however ended about thirty years ago. Imagine that all of this done with authorities claiming “there is nothing going on in [the country] that contravenes the rule of law” as “judges should always be on the side of the state”.

Surely we cannot be talking about a country belonging to the EU. Sadly, you would be wrong to think so. Indeed, the retirement measure described above was at the heart of the infringement action initiated by the European Commission against Poland last July and which resulted, earlier this week, in the European Court of Justice’s first ruling on the compatibility with EU law of one of Poland’s so-called “judicial reforms”. 

This post will explain the extent to which the Court’s ruling may be considered a landmark one, and the Court’s main findings, before assessing the ruling’s immediate and potential impact.

1. A landmark ruling

For the very first time, the Court of Justice has found a national government to have failed to fulfil its obligations under the second paragraph of Article 19(1) TEU which provides that “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.” This is far however from the only “EU law first” one may “credit” to the current Polish authorities:

-          Poland was indeed the first ever EU Member State to be subject to the Commission’s Rule of Law Framework in January 2016;

-          The first EU Member State to be threatened with the payment a fine of at least €100,000 per day in November 2017 by the ECJ should it continue to ignore an interim order adopted by the same Court in July 2017;

-          The first EU Member State to be subject to Article 7(1) TEU proceedings in December 2017;

-          The first EU Member State to have seen its “judicial reforms” provisionally suspended by the ECJ via two interim orders adopted in October and December 2018.

It has now become the first EU Member State to have been found by the ECJ to have failed to fulfil its Treaty obligations by violating both the principles of the irremovability of judges and judicial independence.

As will be shown below, the Court has forcefully and compellingly rejected each one of claims made by the Polish government, including the most recurrent one whereby the Court of Justice would lack jurisdiction to review the multiple, never-ending changes made to the organisation of the Polish judiciary.

2. The Court’s findings

2.1 Organisation of the Polish national justice system as an allegedly exclusive competence immune to EU review

According to the Polish government, supported by the Hungarian government, the organisation of the national justice system constitutes a competence reserved exclusively to the Member States, which would imply that that EU institutions, including the Court of Justice, cannot examine Poland’s “judicial reforms” in light of EU law requirements.

The Court easily explains why this argument cannot survive any serious scrutiny and does so by initially and unusually reminding the Polish government that “as is apparent from Article 49 TEU, which provides the possibility for any European State to apply to become a member” of the EU, Poland “freely and voluntarily committed” itself to respecting and promoting “the common values referred to in Article 2 TEU”, including the rule of law (§ 42). Furthermore, while the Court agrees that “the organisation of justice in the Member States falls within the competence of those Member States”, this obviously cannot be construed as a carte blanche to violate its EU law obligations, not to mention the fact that requiring Poland to comply with its EU law obligations is not akin in any way to exercising “that competence itself” (§ 52). This is merely a reminder of the longstanding difference between the applicability of EU law and the competence of the EU, which explains why EU law can apply in situations where the EU has no competence to legislate.

With respect to the Polish government’s argument that the EU principle of judicial independence can be applicable only in situations governed under EU law, the Court merely reiterates what it previously held in the Portuguese judges ruling. National authorities must respect the principle of judicial independence even in situations where national “judicial reforms” do not implement EU law. Article 19(1) TEU indeed covers any national court which may rule “on questions concerning the application or interpretation of EU law”, in which case any national measure affecting the independence of the said court falls within the fields covered by EU law.

In the present case, it was obvious that Article 19(1) TEU was applicable as it was common ground that Poland’s Supreme Court “may be called upon to rule on questions concerning the application or interpretation of EU law and that, as a ‘court or tribunal’, within the meaning of EU law, it comes within the Polish judicial system in the ‘fields covered by Union law’ … so that that court must meet the requirements of effective judicial protection” (§ 52). It follows that Polish authorities cannot adopt measures which undermine its independence without activating the application of EU law.

2.2 The lowering of retirement age as allegedly required to bring the Supreme Court’s retirement regime in line with the general retirement regime

According the Polish government, it follows from the Court’s own case law, that “that the Member States retain the option to adapt the employment conditions applicable to judges and, thus, their retirement age, in particular in order, as in the present case, to bring that retirement age into line with that provided for in the general retirement scheme, while improving the age structure of officers of the court concerned” (§ 67).

Anyone familiar with the situation in Poland would have immediately found this defence rather surprising. Indeed, the ruling party “has long rallied against what it calls a self-serving “caste” of judges who distort justice for ordinary citizens”. Furthermore, the Polish government’s own “White Paper” of March 2018 indicates that “the reform of judicial retirement age is justified with historical experiences of communism, the failure to account for the past for many years, and pathological [sic] mechanisms of the functioning of courts that have been perpetuated for years” (para 99).

Not unsurprisingly, the ECJ easily came to the conclusion that the forced early retirement of Supreme Court judges is not compatible with the principle of irremovabilily, which is a guarantee of independence. While phrasing this delicately, the Court all but explicitly states that the Polish government has deliberately sought to mislead it when it refers to the information contained in the “explanatory memorandum to the draft New Law on the Supreme Court” and on the basis of which one may have “serious doubts as to whether the reform of the retirement age” was not in fact made “with the aim of side-lining a certain group of judges of that court” (§ 82).

The Court could have stopped there but if only to make it clearer to any future government which might be tempted to follow a similar path, the Court proceeds to perform a proportionality test. In a few words, the Court sees no reason why, for the sake of standardising retirement age, the judges of the Supreme Court should be forced into retirement when all other workers have a right to retire (or not) before holding that the lowering of retirement age with immediate effect, without any transitional measure, is in any event disproportionate.

2.3 Discretionary prerogative granted to the Polish President as (allegedly) required to protect the judiciary

While possibly difficult to believe, the Polish government claimed that “the authorisation conferred on the President of the Republic to decide as to whether to allow” Supreme Court judges “to continue to carry out their duties once they have reached retirement age” constitutes a “prerogative, the specific purpose of which is to protect the judiciary both from interference by the legislative authority and from that by the executive authority” (§ 103).

In other words, it is suggested that the Polish President, itself part of the executive, is the best placed to protect the judiciary from interference by both the executive and legislative branches by deciding alone and in the absence of any substantive conditions, procedural rules and access to judicial review, when to authorise a Supreme Court judge not to be forcibly retired. This is by the way the same office holder who has deliberately ignored court orders, repeatedly attacked Polish judges while also questioning the independence of the Polish ECJ judge and the authority of the ECJ. Even Kafka could not have imagined something more Kafkaesque.

For the Court, the inescapable conclusion is that “by granting the President of the Republic the discretion to extend the period of judicial activity of judges of that court beyond the newly fixed retirement age”, Poland has violated Article 19(1) TEU (§ 124). While explaining why this is so, the Court makes noteworthy observations in relation to the new “National Council of the Judiciary” (NCJ), arguably established in breach of the Polish Constitution and since suspended from the European Networks of Councils for the Judiciary (ENCJ) due to its lack of independence. In a nutshell, the Court explains that the prior involvement of the NCJ cannot “save” the presidential extension regime organised by the Law on the Supreme Court as the NCJ has proved unable to deliver properly reasoned opinions based on objective and relevant criteria to the President for the purposes of authorising Supreme Court judges to continue to carry out their duties.

3. Immediate and potential impact

In a strong editorial, the Financial Times described the Court’s ruling as a landmark one which “will help buttress the rule of law in the EU against authoritarian leaders who have been chipping away at democratic checks and balances with impunity”.

We agree with this assessment.

While the ruling addresses only one of the multiple serious rule of law problems identified by the European Commission in its Article 7 proposal, it does not merely fully confirm the accuracy of the Commission’s diagnosis in the present infringement action but also indirectly its general diagnosis regarding the growing systemic threat to the rule of law in Poland. This legal win is also bound to considerably strengthen the weight of the Commission’s arguments within the framework of ongoing Article 7 proceedings.

The Court’s ruling also establishes a solid de facto precedent with respect to any future attempt in Poland or elsewhere to take control of a court via a retroactive lowering of the retirement age of judges under false pretences. The ruling will similarly add to the growing body of evidence which shows repeated violations by the Polish government of the principle of loyal cooperation in its dealings with the Commission, the Council and now the ECJ.

The Court does not explicitly tackle the question of the NCJ, which was established in 2018 in open violation of what the Commission recommended. The ruling however makes it apparent that the consultation of the NCJ cannot be viewed as an effective safeguard to protect judicial independence. The Court will get a chance to make this crystal clear in Joined Cases C-585/18, C-624/18 and C-625/18. One may expect the Court to follow AG Tanchev and find the new NCJ as lacking the required independence from the legislative and executive authorities. The ramifications of such a finding would be extremely significant as it would essentially mean that every single decision made by the ENCJ-suspended NCJ would be have been made by a compromised body acting in breach of its mandate to safeguard the independence of courts and judges. The potential impact could be extremely significant especially as regards the Polish courts which include the “judges” nominated by the tainted NCJ and appointed by the Polish President.

With respect to the new disciplinary system, the Court could not have more clearly indicated that it shares the Commission’s concerns when it stated that its case-law requires that the rules governing the disciplinary regime “must provide the necessary guarantees in order to prevent any risk of that disciplinary regime being used as a system of political control of the content of judicial decisions” (§ 77). This is virtually the same phrasing used by the Commission when it announced the launch of its latest infringement action regarding Poland’s “reforms” on 3 April 2019. We understand this as an implicit encouragement for the Commission to promptly continue with its action. This means inter alia that it is only a matter of time before the so-called “Disciplinary Chamber” is found to violate the requirements of judicial independence required by EU Law. Again, the ramifications of such a finding would be extremely significant as all of the Disciplinary Chamber’s decisions to date would then have been made by a body masquerading as a court.

Notwithstanding the above, the direct practical consequences of the Court’s ruling will remain modest. Indeed, a significant number of Supreme Court judges had previously refused to subject themselves to the plainly unlawful retirement regime both as a matter of Polish constitutional law and EU law, with all relevant Supreme Court judges requested to return to work following the first interim order by the Chief Justice (the President of the Supreme Administrative Court (SAC) did the same in relation to the SAC judges who were forcibly retired as well). Furthermore, Polish authorities essentially conceded defeat after the final interim order adopted by the ECJ last December (while doing so it however sought to discreetly neutralise some pending preliminary ruling requests in order to prevent the ECJ from examining the NCJ and the Supreme Court’s Disciplinary Chamber in light of the EU requirements of judicial independence).

Most importantly, this ruling does not directly engage with one of the decisive issues raised by the Commission: the decision of the Polish President to increase the number of posts within the Supreme Court, which will eventually enable the ruling party to capture it. However, considering the arguably unlawful nature of the procedure having been used by the Polish President to appoint individuals to the Supreme Court, this issue should eventually reach the ECJ as it was the subject of the most recent preliminary ruling request adopted by a not yet captured chamber of Poland’s Supreme Court on 12 June 2019.

While not addressed by the Court’s ruling, it is to be hoped that within the framework of the infringement action regarding the Polish law on ordinary courts, the ECJ will tackle the forced retirement/dismissal of 61 ordinary court judges. In the absence of any pending actions raising this issue, the ECJ is unlikely to be able to address the dismissal of over 70 court presidents (and 70 vice‑presidents) which took place in 2017-18 on the back of a six-month transitional regime “which gave the Minister of Justice the power to arbitrarily dismiss them without any specific criteria, without justification and without judicial review”. Similarly, to the best of our knowledge, there is no legal action which would enable the ECJ to look into the “the very high number of dismissals and demotions among the Polish prosecutors”.

Lastly, one fundamental issue which is yet to reach the ECJ is the lack of effective constitutional review in Poland ever since the Constitutional Tribunal was unlawfully captured in December 2016, and whose independence and credibility, as recently noted by the Council of Europe Commissioner for Human Rights, “have been seriously compromised by the persisting controversy surrounding the election and the status of its new President and several of its new judges”. This is a key issue which is however bound to arise sooner or later especially if, on the back of successful electoral results, the current ruling party is unable to resit the temptation to further instrumentalise the captured “Constitutional Tribunal”, for instance to justify non-compliance refuse to comply with ECJ rulings on specious constitutional grounds. 

4. Key lesson

The key lesson we draw from this ruling is that any “dialogue” with authorities engaged in rule of law backsliding should be systematically accompanied with the launch of as many infringement actions as possible and as soon as possible.

In the present case, one may not forget how seemingly difficult some within the Commission found it to accept the need for prompt legal action in the first place. To justify legal inaction, we often heard the argument that Article 7 TEU should be considered a lex specialis and therefore exclude the launch of Article 258 infringement actions on issues already highlighted as problematic under any ongoing Article 7 procedure. As observed by AG Tanchev, Article 7 TEU And Article 258 TFEU must however be considered as separate yet complementary procedures which can be invoked in parallel.

To maximise the effectiveness of infringement actions and “prevent the completion of constitutional capture before any eventual ECJ ruling”, accelerated infringement actions ought to be the default position when a Member State openly violates the rule of law. The Commission ought to also systematically request the ECJ to decide these actions under an expedited procedure while also simultaneously request relevant interim measures so as to prevent authorities from changing the facts on the ground before the ECJ is able to issue final rulings.

What the Commission has done and achieved in the present case should be commended. It should also be “considered the new template to follow” whenever judicial independence of national courts is under threat due to autocratically-minded authorities.

Barnard & Peers: chapter 9, chapter 10

Photo credit: France 24

The CJEU and the rule of law in Poland: Note on the Polish Supreme Court preliminary ruling request of 2 August 2018

Alicja Sikora, Chair EU Law, Jagiellonian University

As Eugene Ionesco put it, you can only predict things after they have happened (Rhinoceros, 1959).

On Thursday the Polish Supreme Court submitted to the European Court of Justice a preliminary ruling request under Article 267 TFEU. While doing so it also suspended the application of a Polish law forcing the early retirement of Supreme Court justices who are above 65 years old, including the President of the Supreme Court whose mandate is guaranteed by the Polish Constitution. This is a challenge to the Polish government’s changes to the judiciary, on the grounds that it violates the rule of law.

There were many preliminary ruling requests in the course of the history of EU law from van Gend den Loos, Costa/Enel, Nold, Francovich, Defrenne, Akerberg Fransson, Melloni, Pringle, Gauweiler and many others which shaped a ‘constitutional order of States’. Judicial dialogue established under Article 267 TFEU has been a cornerstone for the development of the EU legal order.

Thursday’s request might, however, not constitute just a major doctrinal novelty. The Polish Supreme Court stepped into the path of active claim for rule of law, which is not only a common principle to Member States, but also expression of the axiology on which EU is founded as expressed in Article 2 TEU. Polish judges seek advice which will in a way sans precedent engage the Court of Justice in the legal and political battle for independent justice in Poland. It is a symbolic proof of how much Europe is needed and how crucial and fragile the enforcement of common values turns to be.

The Court of Justice has already prepared the foundations of such action in recent cases such as C-64/16, Associação Sindical dos Juízes Portugueses (on the independence of Portuguese judges in the context of austerity, discussed here) and C‑216/18 PPU, LM (on the recognition of Polish European Arrest Warrants in light of rule of law concerns), where Article 19 TEU (which sets out the basics of the CJEU’s role) was linked to the protection of the rule of law. Consequently, it is, according to the Court, for the national courts and tribunals and the Court of Justice to ensure the full application of EU law in all Member States and judicial protection of the rights of individuals under that law. It follows that every Member State must ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, meet the requirements of effective judicial protection, which include, in particular, the independence and impartiality of those courts.

In the present case, the Polish Supreme Court referred to the Court of Justice five questions which relate mostly to the interpretation of the principle of judicial independence in the light of EU primary law (Articles 2, 4(3), 19 (1) TEU as well as Article 47 of the Charter of Fundamental Rights). Other questions focus on the interpretation of Directive 2000/78, which includes the principle of non-discrimination based on age. The referring judges also applied for the application of the expedited treatment of the case under Article 105 of the Rules of Procedure of the Court of Justice.

Unsurprisingly, it is the suspension of the application of the national law which caused fierce criticism of the highest Polish authorities. Yet, Polish Court acted in perfect conformity with the classic case-law of the Court concerning interim measures (Factortame, Zukerfabrick, Atlanta) whereby national courts suspend application of a national measure which represents a risk of breach of EU law, pending the decision of the CJEU clarifying whether there is a conflict between national law and EU law (or, in some cases, on whether an EU law being challenged in the national courts is invalid).

The underlying question is whether the CJEU is willing to address the rule of law dispute in Poland directly, via use of the preliminary ruling procedure, or leave the issue to the EU’s political authorities, which are considering warning or sanctioning Poland under the process set out in Article 7 TEU. The Polish Supreme Court is potentially opening a new chapter in the enforcement of EU law and values.

Barnard & Peers: chapter 6, chapter 9

Photo credit: France 24

Dialogue or disobedience between the European Court of Justice and the Danish Constitutional Court? The Danish Supreme Court challenges the Mangold-principle

Sune Klinge, PhD Fellow, Centre for Comparative and European Consitutional Studies, Faculty of Law, University of Copenhagen

Following the Court of Justice’s judgment in Case C-441/14 in the Ajos-case earlier this year, the Supreme Court of Denmark has handed down its judgment in the main proceedings. Despite the fact that the preliminary ruling left the Supreme Court with only two options; (1) apply national law in a manner that is consistent with the directive or (2) disapply any provision of national law that is contrary to EU law the Danish Supreme Court did neither. The Danish Supreme Court found that an interpretation consistent with EU law was not possible nor could the Supreme Court set aside national law since the Danish EU Accession Act did not confer sovereignty to the extent required for the unwritten EU principle prohibiting discrimination on the grounds of age to take precedence over national law. If the courts were to set aside national law they would be acting outside their constitutional limits to their competences as judicial power. Thereby the Supreme Court chose a third option and set aside the judgement from the CJEU.

This case from the Danish Supreme Court no. 15/2014 deals with the scope of Directive 2000/78 (the EU employment equality Directive) and the general principle of non-discrimination on grounds of age, adding another case to the ECJ’s Mangold and Kücükdeveci case law (on the requirement for national courts to suspend national law which breaches the principle of age discrimination) under Danish law.

The CJEU’s ruling in the Ajos-case has previously been discussed here. Consequently, only the main conclusions needed to fully understand the judgment in the main proceedings under Danish law will be revisited.

The Danish Supreme Court referred the following questions to the CJEU: The first question was related to the compliance of the national rules implementing the Directive and the application of the principle of non-discrimination on grounds of age. The second question formulated by the Danish Supreme Court referred to the balancing of rights and principles, and will be cited in full, since it contributes to the understanding of the judgment from the Danish Supreme Court last week:

“Is it consistent with EU law for a Danish court hearing an action in which an employee seeks from a private-sector employer payment of a severance allowance which, under the Danish law described in question 1, the employer is not bound to pay, even though that is contrary to the general EU principle prohibiting discrimination on grounds of age, to weigh that principle and the issue of its direct effect against the principle of legal certainty and the related principle of the protection of legitimate expectations and to conclude on that basis that the principle of legal certainty must take precedence over the principle prohibiting discrimination on grounds of age, such that the employer is, in accordance with national law, relieved of its obligation to pay the severance allowance and, in order to determine whether such a balancing exercise may be carried out, is it necessary to take into consideration the fact that the employee may, in appropriate cases, claim compensation from the Danish State on account of the incompatibility of Danish law with EU law?” (my underlining)

The CJEU openly rejected the solution offered by the Supreme Court, leaving it for the national courts to balance the EU principles against each other, and gave clear guidance on how the Supreme Court were to settle the case:

“EU law is to be interpreted as meaning that a national court adjudicating in a dispute between private persons falling within the scope of Directive 2000/78 is required, when applying provisions of national law, to interpret those provisions in such a way that they may be applied in a manner that is consistent with the directive or, if such an interpretation is not possible, to disapply, where necessary, any provision of national law that is contrary to the general principle prohibiting discrimination on grounds of age. Neither the principles of legal certainty and the protection of legitimate expectations nor the fact that it is possible for the private person who considers that he has been wronged by the application of a provision of national law that is at odds with EU law to bring proceedings to establish the liability of the Member State concerned for breach of EU law can alter that obligation” (my underlining)

On this basis the hearing before the Supreme Court took place 11 and 14 November 2016, and bearing the CJEU’s guidance in mind, the Supreme Court had to decide whether the private employer could rely on the Danish rules and not pay severance allowance to the employee.

As emphasized above in the quotation, the preliminary ruling left the Supreme Court with only two options; (1) applying national law in a manner that was consistent with the Directive or (2) disapplying any provision of national law that was contrary to EU law. The Danish Supreme Court did neither. The Supreme Court came to the conclusion that the national constitutional reservation had to take precedence over EU law according to the EU Accession Act.

Before entering into the extensive argumentation leading to this controversial conclusion, it is worth considering the circumstances and the dilemma of the Supreme Court leading to the decision to make a preliminary reference to the CJEU.

In the Danish case Ole Andersen from 12 October 2012 the CJEU found, that the Directive precluded national rules (same national rules as in the Ajos-case) regarding payment of severance allowance. Paragraph 2a(3) of the Danish Law on salaried employees held that:

No severance allowance shall be payable, if the employee will – on termination of the employment relationship – receive an old age pension from the employer and the employee has joined the pension scheme in question before attaining the age of 50 years.

The CJEU found that the Directive must be interpreted as precluding national legislation pursuant to which workers who are eligible for an old-age pension from their employer under a pension scheme which they have joined before attaining the age of 50 years cannot, on that ground alone, claim a severance allowance aimed at assisting workers with more than 12 years of service in the undertaking in finding new employment, and thereby overruling the national rule. 

In the national proceedings the Western High Court (the case was not tried at the Supreme Court) ruled in favor of the employee against a public authority as the employer – a vertical EU law relationship.

The question before the Supreme Court in the Ajos-case was if the same approach could be applied in a horizontal EU law relationship between two private individuals.

By referring the case to the CJEU, the Supreme Court highlighted a discussion carried out by the Advocates-General of the CJEU about the doctrinal basis of horizontal application of general EU principles.

Advocate General Kokott had in her opinion to the Ole Andersen-case questioned that the CJEU had relied directly on the general legal principle of the prohibition of age discrimination, stating that it was for the national court to set aside any provision of national law, which may conflict with that prohibition. She found in paragraph 22 that it appeared:

“to be a makeshift arrangement  for the purposes of resolving issues of discrimination in legal relationships between individuals, in which Directive 2000/78 is not as such directly applicable and cannot therefore replace national civil or employment law.”

The Advocate General also emphasized that the idea of an in-depth reappraisal and examination of the doctrinal basis of the controversial horizontal direct effect of general legal principles or fundamental rights between individuals were certainly appealing, but not necessary to resolve the case at hand.

Also Advocate General Trstenjak had in her opinion in the Dominguez-case reservations regarding legal certainty for private individuals and the risk of mixing sources of law as regard to directives as secondary law and general principles as primary EU law.

About the absence of legal certainty for private individuals she emphasized in paragraph 164, that

“the principle of legal certainty requires that rules involving negative consequences for individuals should be clear and precise and their application predictable for those subject to them. However, as it will never be possible for a private individual to be certain when an unwritten general principle given specific expression by a directive will gain acceptance over written national law there would, from his point of view, be uncertainty as to the application of national law similar to that experienced where a directive is directly applied in a relationship between private individuals”

The Danish Supreme Court raised the same concerns and by referring the Ajos-case to the CJEU aimed to find a solution by balancing the conflicting principles. By rejecting the solution by the Danish Supreme Court the CJEU offered no way out for the Danish Supreme Court, but to turn on a plate and apply EU law as told by the CJEU if compliance were to be secured.

The Danish Supreme Court did not act as expected; instead, they found their own way of solving the problem and securing legal certainty under Danish law.

The reasoning of The Supreme Court

Interpretation consistent with EU law

The Supreme Court held – in line with the formulation of its question to the CJEU in 2014 – that the legal position under Danish law was clear, and that it would not be possible to arrive at an interpretation of the national law that was consistent with the Directive as interpreted by the judgment of the CJEU in the Ole Andersen-case by using the methods of interpretation recognized under Danish law.

Reflecting on the application of the contra legem assessment made by the Supreme Court it is worth relating it to the harshly formulated paragraph 34 of the CJEU’s Ajos-judgment, where the CJEU stipulated, that:

“the national court [the Danish Supreme Court] cannot validly claim that it is impossible for it to interpret the national provision at issue in a manner that is consistent with EU law by mere reason of the fact that it has consistently interpreted that provision in a manner that is incompatible with EU law.”

This seems to reflect a different understanding by the CJEU of the concept of “contra legem”, and therefore the reasoning on that matter is given a strong voice in the Danish Supreme Court’s judgement. The Supreme Court explains in details that the legal position under Danish law was clear and was not only relying on the interpretation made by the Supreme Court itself. The position had been reaffirmed over the years since the Danish Parliament introduced the rule in 1971 and the Parliament kept the same wording of the provision in the later amendment in 1996. Consequently, the Supreme Court found that it could not change the legal position as the CJEU suggested by using the methods of interpretation recognized under Danish law.

Therefore, the Supreme Court found that it would be “contra legem” to interpret the national law in conformity with the Directive since the national legal position was clear. In this reasoning the Supreme Court and the nine judges acted unanimously.

The general principle of non-discrimination on grounds of age

In the second part of the judgement’s reasoning the majority of eight out of the nine judges came to the conclusion that the Supreme Court could not set aside national law since the Danish EU Accession Act did not confer sovereignty to the extent required for the unwritten EU principle prohibiting discrimination on the grounds of age to take precedence over national law.

The reasoning focuses on the lack of legal basis in the Danish EU Accession Act which is the Act that sets the limits of the conferred sovereignty to the EU in line with paragraph 20 of the Danish Constitution.

The Supreme Court went on to perform an in-depth analysis of the preparatory works of the Accession Act (travaux préparatoire) leading to Denmark joining the EU in 1972 and the subsequent amendments to the Accession Act.

The Supreme Court found that the Danish Parliament did not explicitly refer to the Mangold and Kücükdeveci case law in the preparatory works to the Lisbon Accession Act amendment. On this basis the Supreme Court arrived at the conclusion, that the CJEU did not have the competence or legal basis to give precedence to the unwritten principle prohibiting discrimination on grounds of age in a case where this was contrary to national law.

Reflecting further on the Mangold case of 2005, the Supreme Court also noted that the CJEU in the Mangold case law did not balance the legal certainty and the protection of legitimate expectations against the prohibition of discrimination on grounds of age. It is not clear if the Supreme Court finds that the result in the Mangold case would have been different if the CJEU had reflected on this balancing. By revisiting the finding in the CJEU’s Ajos case one could make the argument, that it would not have changed the result. 

The facts of the case – the dismissal of the employee - were before the Lisbon treaty entered into force the 1 December 2009. Consequently, the Supreme Court stressed that the application of any Charter provision since it was not legally binding and thereby disregarded the argument that the employee could rely on the Charter provisions.

After concluding that the Danish Accession Act does not provide legal basis in a horizontal relationship to give precedence to an unwritten EU law principle the Supreme Court adds:  

“If the Supreme Court in a situation like this were to set aside national law the Court would be acting outside their limits to their competences as judicial power.” (Translation made by the author)

And thereby, not only referring to the Accession Act and sovereignty but also to the separation of power in the Danish Constitution section 3 as it would require an act of parliament to amend the national rules and reassure compliance with EU law.

In the end it should be noted that one judge found that the EU law should take precedence over national law, and that there was no conflict with the Danish EU Accession Act following the Supreme Courts judgments in the Maastricht and Lisbon cases on sovereignty. The minority judge voted to follow the directions made by the CJEU.

Reflection and follow-up litigation

Last week’s judgement from The Danish Supreme Court can definitely be seen as disobedience as the CJEU’s guidance in the Ajos-case was very precise and gave the Supreme Court only two options, but the Supreme Court choose a third. Or it can be seen as contributing to the debate about the dialogue between the courts; it depends on the eyes of the beholder.

It surely adds a chapter to discussion on where the contra legem test is best performed; in the national law regimes or by the CJEU and it sets out the limits of the Danish Supreme Courts constitutional mandate in order to reassure compliance with EU law.

The likely aftermath of the case is also fascinating since the employee has brought an action against the Danish state claiming that the state is liable for the loss of severance pay. The liability case has been suspended on the decision from the Supreme Court.

Another possible outcome could be follow-up litigation from the EU Commission by launching infringement proceedings against Denmark as a Member State on the lack of effective legal protection under article 19 TEU or the duty of sincere cooperation under article 4 (3) TEU. In any case the Ajos-case will be revisited and have a major impact on the relationship between the EU and Denmark.

---ooOoo---

Please feel free to contact me if you want more information about the case or the related issues from a national Danish perspective. I am doing a PhD project about the horizontal effect of EU law and member state liability from a national Danish perspective. Before I joined Academia I was practicing lawyer at one of the leading law firms in Denmark working extensively with EU law.

Photo credit: wikipedia

Barnard & Peers: chapter 6; chapter 8; chapter 9; chapter 20