In the context of Community law and from a Community law perspective, national courts are precluded from reviewing the validity or applicability of Community law. The ban on such review stems first, from the principle of supremacy of Community law, and secondly, and independent from the principle of supremacy, from the lack of jurisdiction on the part of the national courts to rule on the validity of Community law on whatever ground. First, under the principle of supremacy, precedence must always
be given to Community law over conflicting national law however framed and including national constitutional provisions. The validity of Community law can only be reviewed in the light of the Treaties and higher Community law,1 the general principles of Community law, including fundamental rights, and in the light of international law,2but not in the light of national constitutional principles quanational principles.3The exclusion of national constitutional provisions is crystalline: they can never be invoked, before a Community court or a national court. Things are more complicated when it comes to the validity of measures of Community law in the light of international law. The case law of the Court of Justice on its own jurisdiction and that of national courts in this area may be perceived as leaving a gap in the system of judicial review, which some national courts may want to fill.4
Secondly, the Court of Justice has exclusive jurisdictionto declare second- ary Community law invalid, at the exclusion of the national courts.5In the case law of the Court of Justice a dual system of judicial protection has developed involving both the European and national courts. The Treaties have, according to the Court, established a complete system of legal reme- dies and procedures designed to ensure the legality of acts of the institu- tions, and has entrusted such review to the Community courts. Where natural or legal persons cannot, by reason of the conditions for admissibil- ity laid down in Article 230(4) EC directly challenge Community measures of general application, they must plead the invalidity of such acts before the national courts. The national courts play a central role in the Community system of judicial protection, even when it comes to review of the validity of Community law.6Yet, the national courts lack the compe- tence to hold Community law invalid themselves: if they are convinced that a provision of secondary law may well be invalid, they must make a reference to the Court of Justice which alone has jurisdiction to declare those measures invalid.
1 For a discussion on the relationship between primary and secondary law in the context of the internal market, see K Mortelmans, ‘The Relationship between the Treaty Rules and Community Measures for the Establishment and Functioning of the Internal Market.
Towards a Concordance Rule’, 39 CML Rev, 2002, 1303.
2 Case C–162/96 A Racke GmbH v Hauptzollamt Mainz[1998] ECR I–3655.
3 Case 11/70Internationale Handelsgesellschaft [1970] ECR 1125.
4 See below.
5 In the wording of the ECJ, the national courts ‘may consider the validity of a Community act’
and may, if they consider that the grounds of invalidity put forward before them by the parties are unfounded, reject them and conclude that the measure is completely valid. On the other hand, they ‘do not have the power to declare acts of the Community institutions invalid’, Case 314/85 Foto-Frost v Hauptzollamt Lübeck-Ost[1987] ECR 4199, at paras 14 and 15; Case C–27/95 Woodspring District Council v Bakers of Nailsea Ltd [1997] ECR I–1847, at paras 19–20.
6 See lastly, Case C–50/00 PUniún de Pequeủos Agricultores v Council[2002] ECR I–6677.
The combined effect of the principle of supremacy of Community law over national law however framed and the lack of jurisdiction on the part of the national courts to review the validity of Community law is that national (constitutional) courts may not uphold the national Constitution or indeed any other rule of national law7against conflicting Community law. The Court of Justice has taken over the ultimate responsibility to ensure judicial review of the legality of acts of the Community institu- tions, either directly in an action for annulment or indirectly on a refer- ence from national courts. National constitutional principles are not protected as such in the context of Community law, but are replaced, where relevant, by Community principles, such as fundamental rights as general principles of Community law, derived from the common consti- tutional traditions of the Member States, the ECHR and, possibly,8 the Charter of Fundamental Rights of the European Union.
To sum up, the denial of the competence of national courts to rule on the validity of secondary Community law results from the supremacy of Community law (there simply is no national standard for review since Community law always ranks higher) and the lack of jurisdiction of the national courts under Foto-Frost.
18.1.1.2. The Ultimate Supremacy of Community Law
A distinction has been made between ‘ordinary supremacy’9and ‘ulti- mate supremacy’ over the national Constitutions.10Formally, there may not be a major difference between the two types of supremacy: in both cases Community law prevails and must be enforced against conflicting measures of national law. Yet, looking at it from the perspective of the
7 The exclusive jurisdiction of the ECJ extends to all grounds allegedly capable of invali- dating them, including ‘higher’ Community law, principles found in national law and including also rules of international law; see e.g. Case C–162/96 Racke v Hauptzollamt Mainz[1998] ECR I–3655, cf. below.
8 See e.g. the reference to Art. 47 of the Charter of Fundamental Rights of the European Union by the CFI in Case T–177/01 Jégo-Quéré v Commission[2002] ECR II-2365; the judg- ment was ‘reversed’ by the ECJ in Case C–50/00 PUniún de Pequeủos Agricultores v Council[2002] ECR I–6677, the reference to the Charter was omitted.
9 The supremacy of Community law over ‘ordinary’ statutes and anything inferior to the Constitution, but including Acts of Parliament (Costa v ENEL). In the framework of this book ‘ordinary supremacy’ was the central theme of the first Theme on the ordinary courts, since it corresponds to the mandate of the national courts to ensure that Community law is applied and enforced even as against conflicting national law, includ- ing Acts of Parliament. The national courts are so involved in the (private) enforcement of Community law as against the Member States.
10 Deriving from Internationale Handelsgesellschaft. The consequence of this supremacy is a denial on the part of the European Court for the national (mostly constitutional) courts to review the constitutionality of Community law. National courts may not enforce the Constitution (or indeed any other ‘higher norm’) as against Community law. This area of supremacy is central in this Theme on courts having constitutional jurisdiction.
national courts and their mandate, there is an important difference in that
‘ordinary supremacy’ endows the court (mostly an ‘ordinary court’) with the mandate to enforce Community law and to set aside any conflicting norm of national law, while the second type of supremacy precludes the national court (mostly a court having constitutional jurisdiction) from exercising its national mandate to uphold the Constitution. Since Internationale Handelsgesellschaft it is undisputed under Community law that ‘recourse to the legal rules or concepts of national law in order to judge the validity of measures adopted by the institutions of the Community would have an adverse effect on the uniformity and efficacy of Community law. The validity of such measures can only be judged in the light of Community law’. ‘[T]he valid- ity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as for- mulated by the Constitution of that State or the principles of a national constitu- tional structure’.11The validity of secondary Community law or its effects in the internal legal order cannot be questioned on the basis of national constitutional law. It should be emphasised that Internationale Handelsgesellschaftrules out the possibility not only that national courts hold Community law invalid, but also that they decide on its effects within a Member State, and accordingly, its applicability.12
18.1.1.3. Jurisdiction to Declare Community Law Invalid:
the Foto-FrostPrinciple
In addition, there is a jurisdictional issue: the Court has held in Foto- Frost13 that it has exclusive jurisdiction to rule on the validity of Community law. This principle is independent of the principle of supremacy of Community law: even if the alleged invalidity follows from an infringement of the Treaties,14the national court is under an obligation to refer the case to the European Court which alone has competence to actually declare Community law invalid. This is not evident from the text of the Treaties.15Article 230 EC (old Article 173 of the EC Treaty) provides for an action for annulment of specified Community acts to the Court of
11 Case 11/70Internationale Handelsgesellschaft [1970] ECR 1125, at para 3.
12 This is developed further below.
13 Case 314/85 Foto-Frost v Hauptzollamt Lübeck-Ost[1987] ECR 4199; see also Case C–27/95 Woodspring District Council v Bakers of Nailsea Ltd[1997] ECR I–1847.
14 Which is an accepted ground for illegality or invalidity under Community law and expressly provided for in the text of Art. 230 EC.
15 AG Mancini stated, in his Opinion in Foto-Frost, that the ‘eliptical’ wording of Art. 177 was attributable to ‘a singular but not impossible oversight’ on the part of the authors of the Treaty. In his view the textual interpretation would lead to such ‘dangerous and anomalous results as to overshadow the undeniable uneasiness which one feels in reject- ing them’, Opinion of AG Mancini in Case 314/85 Foto-Frost v Hauptzollamt Lübeck-Ost [1987] ECR 4199, at 4218.
Justice. Yet the wording of Article 234 EC (old Article 177 of the EC Treaty) seems to allow the lower national courts to rule on the validity of Community law themselves. Indeed, according to the text of Article 234 EC, the lower courts mayrefer questions as to the interpretation and the validityof Community law to the Court of Justice.16 The text does not make such reference obligatory.17 Nevertheless, the Court held in Foto- Frostthat the national courts have no jurisdiction to declare that acts of Community institutions invalid. Consequently, if a court doubts the validity of a Community act, it is under an obligation to refer it to the Court of Justice. The Court held that the lower courts ‘may consider the validity of a Community act and, if they consider that the grounds put forward before them by the parties in support of invalidity are unfounded, they may reject them, concluding that the measure is completely valid. By taking that action they are not calling into question the existence of the Community measure. On the other hand, those courts do not have the power to declare acts of the Community institutions invalid’.18Accordingly, the Community position is straightfor- ward: national courts, in all instances,19 are precluded from holding Community law invalid. There is only one exception. Already in Foto- Frostitself, the Court held that ‘it should be added that the rule that national courts may not themselves declare Community acts invalid may have to be qual- ified in certain circumstances in the case of proceedings relating to an application for interim measures’.20 Such circumstances occurred in Zuckerfabrik Süderdithmarschen,21where the Court held that where a national measure based on a Community regulation is challenged before a national court on grounds that the validity of the Community measure itself is contested, interim relief may be granted. The national court may suspend applica- tion of the national measure and therefore also of the underlying Community act, but only if strict conditions are met. These conditions
16 The ECJ was of the opinion that ‘in enabling the national courts against whose decisions there is a judicial remedy under national law, to refer to the Court for a preliminary ruling questions on interpretation or validity, Article 177 did not settle the question whether those courts them- selves may declare that acts of the Community institutions are invalid’, Case 314/85 Foto-Frost v Hauptzollamt Lübeck-Ost[1987] ECR 4199, at para 13.
17 In contrast, Art. 41 ECSC expressly gave the Court exclusive jurisdiction over questions of validity, see Case C–221/88 Busseni[1990] ECR I–495, at para 14.
18 Case 314/85 Foto-Frost v Hauptzollamt Lübeck-Ost[1987] ECR 4199, at para 14–5; see also Case C–27/95 Woodspring District Council v Bakers of Nailsea Ltd [1997] ECR I–1847; Case C–6/99 Association Greenpeace France v Ministère de l’Agriculture et de la Pêche[2000] ECR I–1651.
19 Courts against whose decisions there is no remedy under national law, are under an obli- gation to refer questions concerning the validity of Community law under Art. 234 (3) EC They are by consequence precluded from ruling themselves on the validity of Community law.
20 Case 314/85Foto-Frost [1987] ECR 4199, at para 19.
21 Case C–143/88 and 92/89 Zuckerfabrik Süderdithmarschen AG v Hauptzollamt Itzehoe[1991]
ECR I–415.
were refined in Atlanta22 and have been repeated since.23 Interim relief can only be granted if the court entertains serious doubts as to the valid- ity of the Community act and, should the question of the validity of the contested measure not already have been brought before the Court of Justice, it must be referred. Secondly, there must be urgency and the interim relief must be necessary to avoid serious and irreparable damage being caused to the party seeking the relief. Third, the court must take due account of the Community’s interests. Lastly, in its assessment of all those conditions, the court must respect any decision of the Court of Justice or the Court of First Instance ruling on the lawfulness of the reg- ulation or on the application of interim measures seeking similar interim relief at Community level.24
An issue which at first sight appears merely technical-judicial, but one with far-reaching consequences, is the distinction which is sometimes made between validity of Community law and its applicability in the national legal order. In line with the wording of Article 234 EC, Foto-Frost deals with the issue of the validityof a measure of Community law.25As will be demonstrated further in the discussion of the national positions, some national courts have added another issue, namely that of the applicability of a Community measure in the national legal order. The Bundesverfassungsgericht for instance in Brunnerstated that Community measures which are ultra viresare not applicable on German territory, and it is for the German Court to rule on the question whether or not a partic- ular measure is ultra vires.26It allegedly does not rule on the validityof the Community act, but merely on its applicability on German territory.
Nonetheless, such a view is merely a consequence of a certain conception about the nature of the Community legal order and its relationship with the national legal order. While Article 234 EC refers only to the interpreta- tionand validityof Community law and not its applicability, this ‘shrewd’
distinction carries no weight from the point of view of Community law:
22 Case C–465/93 Atlanta Fruchthandelsgesellschaft[1995] ECR I–3761.
23 Case C–68/95 T Port v Bundesanstalt fỹr Landwirtschaft und Ernọhrung[1996] ECR I–6065;
Case C–334/95 Krüger GmbH & Co KG v Hauptzollamt Hamburg-Jonas[1997] ECR I–4517;
Case C–17/98 Emesa Sugar (Free Zone) NV v Aruba[2000] ECR I–675.
24 Case C–465/93 Atlanta Fruchthandelsgesellschaft[1995] ECR I–3761, at para 51.
25 In contrast, Internationale Handelsgesellschaft says that‘the validity of a Community meas- ure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the Constitution of that State or the principles of a national constitutional structure’, Case 11/70Internationale Handelsgesellschaft [1970] ECR 1125, at para 3, emphasis added.
26 This will be explained below. In short, the BVerfG argues that Community law becomes effective in the German legal order thanks to the German Act adopted under the Constitution and giving effect to the Treaty. If a measure of Community law is ultra vires it does not become effective in the German legal order. In the BVerfG’s reasoning, this is a question of its applicability, not of its validity.
Indeed, the question of the applicability and effectiveness of Community law in the national legal order is one for the Court of Justice to decide, and has ever since Van Gend en Loosbeen considered an issue of interpretationof Community law, which ultimately falls to be decided by the Court of Justice.
While Foto-Frost is one of the Court’s most important constitutional decisions, and continues the line of Van Gend en Loos, Costa v ENEL, Internationale Handelsgesellschaft, Simmenthal, it is a fairly sober decision and lacks references to the autonomous nature of the Community legal order,27 to transfers of sovereignty and similar doctrines. While the case seems restricted to an interpretation of the powers of the lower courts under Article 234 EC and in textbooks often figures in the discussion of the preliminary rulings procedures, its importance in the building of the Community constitutional structure and the division of labour between the Community and national courts, can hardly be overstated. Beyond imposing a duty to refer a question for preliminary ruling on the lower courts, it states the fundamental principle that national courts, including those against whose decisions there is no judicial remedy under national law, do not have jurisdiction to hold secondary Community law invalid, for whatever reason. While this could, with respect to the highest courts, already be derived from the text of Article 234(3) EC, it is now clear for all courts alike and beyond all possible doubt, and placed in the context of the entire Community system of judicial protection.
The Court built its decision first, on the principle that Community law should be uniformly applied by all national courts, second, on the coher- ence of the Community system of judicial protection,28and third, on the fact that the Court is in the best position to decide on the validity of Community acts.29In addition, it has rightly been noted that it is impor- tant that Community provisions should only be declared invalid by a court whose decisions may be treated as authoritative by the European and national political institutions and courts in all the Member States, i.e.
the European Court itself.30As the Court explained, although a declaration
27 As pointed out in G Bebr, ‘The Reinforcement of the Constitutional Review of Community Acts under Article 177 EEC Treaty’, 25 CML Rev, 1988, 667, at 678.
28 The ECJ reasoned that since it had exclusive jurisdiction under Art. 173 of the EC Treaty (now Art. 230 EC) to annul measures of the Community institutions, the cohesion of the Community system of legal protection required that it also had exclusive jurisdiction to declare a Community act invalid under Art. 177 of the EC Treaty (now Art. 234 EC).
29 Moreover, the ECJ observed, the reference procedure enabled the Community institu- tions involved to ‘defend’ the act in question, and the ECJ to request all necessary infor- mation from them. The ECJ implicitly suggested that the national courts simply were not equipped to rule on the validity of Community law, see G Bebr, ‘The Reinforcement of the Constitutional Review of Community Acts under Article 177 EEC Treaty’, 25 CML Rev, 1988, 667, at 670.
30 A Arnull, ‘National courts and the validity of Community acts’, ELR, 1988, 125, at 126.