January 27
2022
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Trajan Shipley
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4th November 2021
Institutional law Justice & Litigation

FIDE 2021: Direct effect and primacy of EU law revisited and discussed

The FIDE congress covered today in the first two sessions of Topic 1 the issue of national courts and the enforcement of EU law, with special attention, first, on direct effect and the application of the Charter of Fundamental Rights to private individuals and, second, the primacy of EU law. 

In the first session, the general and institutional rapporteurs, Anna Wallerman and Michal Bobek, respectively, portrayed how national courts are making use of the Charter in horizontal contexts (i.e. litigation between private parties). The main findings of the national reports showed that the Charter is not having a significant presence in national judicial practice, particularly when it comes to the matter of horizontal direct effect of fundamental rights. In the opinion of Michal Bobek, this is probably due to the fact that national courts rely on domestic instruments and do not need to make use of the direct effect of Charter provisions. 

In the context of the discussions, some members of the Court of Justice pointed out to the fact that the case-law thus far has tried at all times to find a balance between recognizing the effectiveness of the Charter and directives, together with the need to preserve the autonomy of national legislators. In particular, the debate focused on whether the joint interpretation of the Charter together with a directive could have the effect of “freezing” the directive and turning it into primary law, as a result of its ties with the Charter when interpreted together. This position was discarded by many of the participants, particularly by the President of the Court of Justice, Koen Lenaerts, who insisted on the importance of ensuring the effectiveness of EU law, together with the leeway that at times is granted to national legislatures. 

The second session of the afternoon covered the issue of primacy of EU law. At first, the rapporteurs focused on the notion of “conditional primacy”, or cases in which the case-law allows or gives way to the primacy of EU law in the benefit of other principles. It was mostly agreed by the participants in the discussion that such a notion does not exist in EU law, inasmuch primacy, as part of the EU legal order is implemented together with other principles of EU law, such as fundamental rights or legal certainty. 

In the subsequent part of the discussion due attention was paid to cases of challenges to the primacy of EU law, and on this point a specific focus was put on rulings of the Czech and German Constitutional Courts, and the Danish Supreme Court, in which EU law has been explicitly overruled in a domestic legal system. There was a division of opinion as to whether such developments are similar or should be analysed as separate and differentiated events. It was the generalized opinion in the room that there are sufficient differences between the rulings to consider them as individual and separate judgments with different contexts. When it came to discussing the relevance of the latest ruling of the Polish Constitutional Court challenging the primacy of EU law, another discussion ensued as to whether there is a legal solution to the challenges posed by this decision, or whether it is an event that is beyond the domain of legal adjudication. Michal Bobek insisted on the importance of applying an institutional approach to determine whether a jurisdiction is independent or not, and in his view, the ruling of the Polish Constitutional Court judgment should not be considered to be rendered by a court of law. 

The discussions will resume tomorrow Friday 5 November 2021.

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