Ensuring an “ever closer union among the peoples of Europe”

A report championed by Maltese S&D MEP Cyrus Engerer, emphasising the supremacy of European law over national law, has gained strong support within the European Parliament. The Journal unpacks the intricacies of the subject.

The importance of the principle of primacy of European law for the functioning of the 27-strong bloc, the risk to the effectiveness of EU law posed by decisions taken by national courts challenging that principle, and the perceived need for a constructive dialogue between national courts and the Court of Justice of the European Union has led MEPs to overwhelmingly endorse an own-report the co-rapporteurs of which were Maltese MEP Cyrus Engerer (Group of the Progressive Alliance of Socialists and Democrats) and Estonian MEP Jana Toom (Renew Europe Group).

The report, which was jointly submitted by the EP’s Committee for Legal Affairs (JURI) and the Committee on Constitutional Affairs (AFCO), was approved by an astounding 430 votes against 172 and 29 abstentions yesterday, the second day of the November plenary session in Strasbourg.

What is the principle of the primacy of EU Law?

The principle of the primacy (also referred to as ‘precedence’ or ‘supremacy’) of European Union (EU) law is based on the notion that, although there is no hierarchy between EU and national laws, whenever a conflict arises between an aspect of EU law and an aspect of national law in an EU Member State, EU law will prevail.

What is its relevance?

Without the primacy of EU law, the EU’s legal order would crumble, allowing Member States to circumvent EU rules and pursue conflicting national agendas, hindering the pursuit of European common goals and objectives. In essence, the principle of European Law primacy seeks to ensure that we European citizens are uniformly protected by EU law across all Member States.

Isn’t the principle already acknowledged?

Yes, but it is not enshrined in the EU treaties, although there is a brief declaration annexed to the Treaty of Lisbon in regard to it. The principle of the primacy of EU law has developed over time by means of the case law (jurisprudence) of the Court of Justice of the European Union (CJEU).

Why do MEPs want to see the principle eshrined in the Treaties?

In order to mitigate possible conflicts, MEPs recommend to enshrine the principle of the primacy of EU law explicitly into the EU Treaties and regret this was not the case under the Lisbon Treaty. They are pointing out that, although most national courts respect the principle, decisions of those Constitutional or Supreme courts that challenge or fail to apply it pose a risk to the effectiveness and uniformity of EU law. MEPs emphasise that it is the Luxembourg-based CJEU that has the exclusive competence to interpret EU law and set its limitations.

According to the MEPs, the principle constitutes not just a legal doctrine but also a reflection of the political and economic integration of the EU and contributes to the creation of an “ever closer union among the peoples of Europe”. It also guarantees equal protection of the rights under the EU law to all EU citizens.

What are the MEPs asking for?

The European Parliament is asking the European Commission, as the guardian of the EU Treaties, to closely monitor the rulings of national courts with regard to the primacy of EU law and to initiate infringement procedures in response to judgments challenging it. The Commission should prepare an annual report on the application of EU law, including a scoreboard of compliance with CJEU judgements in EU countries.

MEPs re also suggesting that national courts engage in a constructive judicial dialogue with the CJEU though the preliminary reference procedure, an institutionalised mechanism of dialogue between the CJEU and national courts provided for in the EU Treaties. They also encourage the establishment of a forum for regular informal dialogue between the courts. Its aim would be to strengthen mutual cooperation and encourage harmonisation of the interpretation of EU law across all judicial systems. They also emphasise the importance of adequate capacity building and call for the use of EU training programmes in Member States’ judicial systems to encourage a better understanding of the primacy of EU law.

Has the primacy of EU Law ever been challenged by a Maltese Court?

Yes, the primacy of EU law has been challenged by a Maltese court on at least one occasion.

In the 2023 case of Michael Christian Felsberger et vs TSG Interactive Gaming Europe Ltd, Mr Justice Toni Abela ruled in the Superior Courts that the primacy of EU law did not apply in a particular case involving the enforcement of an Austrian court judgment for a garnishee order against a Maltese gaming company.

The judge’s decision drew upon the recently enacted amendments to the Gaming Act, which empower Maltese courts to reject foreign judgments and shield gaming companies from such legal proceedings. His ruling effectively disregarded Malta’s legal commitment under EU law to acknowledge and enforce judgments issued by other EU courts, as outlined in EU Regulation 1215 of 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

This ruling was controversial and was widely criticised by legal experts, who argued that it was inconsistent with the settled jurisprudence of the CJEU, that has repeatedly affirmed the primacy of EU law.

It is possible for the Maltese Court of Appeal to overturn the Felsberger ruling. However, the very fact that a Maltese court has even questioned the primacy of EU law is a significant development.

“Safeguarding the EU” – MEP Cyrus Engerer

Rapporteur for Constitutional Affairs Committee (AFCO) Cyrus Engerer (S&D) noted: “Preserving the functionality, cohesion, and consistency of our Union is non-negotiable. We’ve initiated recommendations to strengthen the Union’s legal order, and our Parliament is unwavering in its commitment to uphold the rule of law and ensure a uniform legal framework across all Member States.”

Photo credit: EU

“Solutions for avoiding conflicts” – MEP Yana Toom

Rapporteur for the Legal Affairs Committee (JURI) Yana Toom (Renew Europe) said: “I am extremely happy to see the plenary adopt our report. We not only reaffirm the importance of the principle of primacy of EU law, but we also suggest solutions for avoiding conflicts like the few we saw in the past. This Parliament remains committed to ensuring equality of Europeans before the law.”

Photo credit: EU
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