The principles of primacy and effective judicial protection, as significant constitutional doctrines within EU law, have warranted substantial academic discussion in their own right.127 The focus here, however, is on their capacity to aggravate direct effect’s reinforcement of a constitutional weighting towards free movement in instances of clash with fundamental rights. Accordingly, the discussion will limit itself, first, to discussing the concretisation of the two-stage model by the principle of primacy, which, by its nature, obliges a structural preference for free movement over competing law. The section will demonstrate, second, that even where domestic measures are permissible in principle, by virtue of their pursuit of an overriding interest accepted under Union law, they will not be justified in practice if they fail to meet the requirements of proportionality. Where this occurs, the combination of primacy and effective judicial protection requires the immediate
disapplication of domestic law. This ‘all or nothing’ approach can result in a legal lacuna of fundamental rights protection in practice, even though the CJEU has accepted the need to protect them in principle. The section will assess, third, how, in some cases, the principle of effective judicial protection can lead national courts to allow actions for damages against private individuals who exercise their fundamental rights in breach of directly effective and prevailing free movement law, even where this would not be the case in the domestic legal framework. As with direct effect, the doctrines of primacy and effective judicial protection are of wider application than the free movement provisions. Accordingly, they should be viewed, here, as one of many factors in the multifaceted historical development of a free movement bias.
The doctrine of primacy was established in the seminal Costa case, in which the Court stated that ‘the law stemming from the Treaty…could not, because of its special and original nature,
127 On primacy, see, for instance, N. MacCormick, Questioning Sovereignty, (OUP, 1999); A. von Bogdandy,
‘Pluralism, Direct Effect, and the Ultimate Say: On the Relationship between International and Domestic Constitutional Law’, (2008) 6 I-CON 397. On effective judicial protection, see, for example, P. Wattel, ‘National Procedural Autonomy and Effectiveness of EC Law’ (2008) 35 LIEI 109; M. Hoskins, ‘Tilting the Balance: Remedies and National Procedural Rules’ (1996) 25 ILJ 153
160 be overridden by domestic legal provisions, however framed [emphasis added]…’128 Accordingly, in the context of our discussion, not only are the free movement provisions directly effective within the national legal orders, but they also have primacy over competing domestic norms.129 The Court’s reference to national law ‘however framed’ suggested that Union law had supremacy even over national constitutional law, including fundamental rights safeguards contained therein. This was confirmed in Internationale Handelsgesellschaft in which the CJEU declared that ‘the validity of a Community measure or its effects within a Member State cannot be affected by allegations that it runs counter to…fundamental rightsas formulated by the Constitution of that state…[emphasis added]’.130
Prima facie, this appears to suggest that national rules, including fundamental rights measures, are not even capable, in cases of conflict, of derogating from directly effective EU law, such as the free movement provisions, since EU law is hierarchically superior. This would seem to necessitate not a breach/justification model but rather an even more heavily weighted one-stage approach that would set fundamental rights aside once a restriction on free movement is established. Alternatively, the Treaty itself contained derogating provisions, permitting restrictions on free movement as a matter of EU law.131 Further, in Internationale, itself, the CJEU introduced fundamental rights protection at EU-level in order to mitigate the effects of the primacy of Union law on domestic fundamental rights:
[A]n examination should be made as to whether or not any analogous guarantee inherent in Community law has been disregarded. In fact, respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice. The protection of such rights, whilst inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structure and objectives of the Community.132
Thus, although the Treaty derogations from free movement do not include protection of fundamental rights, they have presented permissible restrictions on the market freedoms in
128 Case 6/64 Costa v ENEL [1964] EU:C:1964:66, p.594 129
There is debate in the commentary as to whether the operation of the doctrine of primacy is dependent on a provision’s being directly effective (trigger model) or whether national courts are obliged to apply this principle regardless of direct effect status. See M. Dougan, ‘When Worlds Collide! Competing Visions of the
Relationship between Direct Effect and Supremacy’, (2007) 44 CMLRev 931; De Witte, n.4
130
Case 11/70 Internationale Handelsgesellschaft [1970] EU:C:1970:114, para.3
131 Arts.36, 45(3), 52(1), 62, and 65(1)(b) TFEU 132 N.130, para.4
161 Schmidberger and subsequent cases.133 Since the development of primacy requires respect for fundamental rights as a matter of EU law, it could therefore be argued that primacy promotes equality between the free movement provisions and fundamental rights, rather than a structural preference for the former. However, it is submitted here that the historical development of fundamental rights protection, as a necessary response to the primacy of Union law, in fact, reinforces an adjudicative model that presents fundamental rights as derogations from free movement, to be interpreted strictly.
First, according to Internationale, fundamental rights ‘must be ensured within the framework of the structure and objectives’ of the Union. This indirectly invites the slotting of tensions
between EU law and fundamental rights into existing adjudicative frameworks, such as the two-stage model. The reference to the objectives of the Union also arguably sets the parameters of fundamental rights protection according to the economic endeavours of the Treaty. Since free movement seeks to facilitate the internal market, this also supports its structural prioritisation. Through repeated use, the entrenchment of such a model would continue to support a preference for the economic even after the Union’s aims diversified.134
Second, although Internationale introduced fundamental rights to the Union legal order, these existed as general principles, and without the Union having competence in this field. Accordingly, fundamental rights are drawn from the domestic constitutional traditions as well as, later, the international agreements to which the Member States are signatories.135 Similarly, although restrictions on free movements are permissible as a matter of Union law, via the Treaty’s derogating provisions or later the mandatory requirements, these frequently cover fields for which the Union has limited legislative competence.136 This creates something of an historical paradox within EU fundamental rights protection whereby fundamental rights are protected at EU-level but usually emanate from national restrictions on Union law. This is particularly visible in Omega in which the Court drew on the German recognition of the fundamental right to human dignity, which was also Germany’s justification for limiting the free provision of services, in order to recognise that right within the Union legal order.137
133 Case C-112/00 Schmidberger, n.6; Case C-36/02 Omega, n.16; Case C-438/05 Viking, n.22 134 For discussion of the expansion in Union goals, see ch.1, s.4.3.2.1.
135
Case 4/73 Nold [1974] EU:C:1974:51
136 E.g. the Union only has complementary competence in the field of human health: Arts.6 and 168 TFEU 137 Case C-36/02 Omega, n.16, paras.32-34
162 Accordingly, fundamental rights continue to be presented as national derogations from Union law, subject to judicial control at EU-level.138
Consequently, although the existence of the Treaty derogations and the general principles139 mitigate against a finding that all competing law is automatically overridden by the primacy of the free movement provisions, the continued presentation of fundamental rights as a national derogation from free movement tilts the doctrine towards free movement. Arguably, a principle that dictates that Union law must prevail over conflicting law concretely reinforces the notion that, if derogations from free movement are to be permitted at all, they must be interpreted strictly and only be justified where they impose the fewest restrictions on the market freedoms.140 This is also reflected in the language of the Court in Omega, Viking and
Laval, in which it presents fundamental rights as a legitimate interest ‘even’ against the
fundamental principle of free movement.141 This arguably works in tandem with the ‘unconditionality’ of free movement as a result of its direct effect status. Although the Union still lacks legislative competence in the general field of fundamental rights, it remains to be seen how the primary legal status of the Charter will impact on this historically entrenched approach, since this provides a means by which fundamental rights can be drawn directly from an instrument of EU law. In the pre-Lisbon cases of Viking and Laval, the Court recognised the existence of the fundamental right to strike by virtue of Article 28 CFR. However, this did not alter the Court’s two-stage approach to the clash between this right and the freedoms of establishment and services respectively. Nevertheless, post-Lisbon, we see the Court drawing more frequently on the Charter in its fundamental rights assessments, especially outside primary law, demonstrating some potential in this regard.142
As well as supporting the two-stage justification model, the doctrine of primacy, alongside the principle of effective judicial protection, places fundamental rights protection at further risk where fundamental rights measures, representing justifiable restrictions on free movement in
138
Para.30
139 And now the Charter
140 Case 36/02 Omega, n.16, paras.30 and 36. Although the Court in that case elected to offer a wide margin of
discretion to the Member State, this was not the case in e.g. Case C-438/05 Viking, n.22 or Case C-341/05 Laval
n.25. In any case, in Omega, fundamental rights protection was still processed through a one-sided proportionality assessment. The ban on laser-game services was permitted as a derogation from EU law in exercise of Germany’s discretion in the field of fundamental rights, rather than as a matter of Union law.
141 Ibid, para.35; Case C-438/05 Viking, n.22, para.45; Case C-341/05 Laval, n.25, para.93 142
Case C-271/08 Commission v Germany [2010] EU:C:2010:426; Case C-544/10 Deutsches Weintor [2012] EU:C:2012:526. The effect of the post-Lisbon constitutional environment on the two-stage approach is discussed in more detail in ch.5
163 principle, have not been able to overcome the breach/justification framework in practice. This is because primacy requires national rules to be set aside as a result of the restrictions they place on free movement law, while the principle of effective judicial protection requires this to be done immediately.143 In other words, while the finding by the Court that the safeguarding of fundamental rights is justified in principle suggests a need for fundamental rights measures, there will be a legal vacuum in this regard until the relevant Member State adopts rules less restrictive of free movement. The combined force of direct effect, primacy and effective judicial protection in this respect is summarised by the Court in its Winner Wetten judgment:
…in accordance with the principle of the precedence of Union law, provisions of the Treaty and directly applicable measures…have the effect, in their relations with the internal law of the Member States, merely by entering into force, of rendering automatically inapplicable any conflicting provisions of national law.144
Thus, the finding in Rüffert,145 that a German law requiring local authorities to impose the minimum pay requirements contained in local collective agreements could not be justified by the goal of worker protection146 inter alia because it applied only to public contracts, provokes the requirement that national courts immediately disapply this law in relation to service providers posting workers from other Member States. Similarly in Laval, the finding that the Swedish approach to determining minimum pay was too imprecise to comply with Article 56 TFEU would seemingly suspend the application of basic wage mechanisms to posted workers until this matter had been resolved domestically. This also triggered the question of to what extent trade unions could exercise their fundamental right to strike in this regard.147 In short, this ‘all or nothing’ approach arguably does not leave the Member States with sufficient breathing space to safeguard fundamental rights while in the process of devising less restrictive fundamental rights approaches.
However, the Court did open a door to the possibility of a temporary suspension of primacy in future cases in Winner Wetten itself.148 The case concerned a German law that made it a
143 Case 106/77 Simmenthal [1978] EU:C:1978:49, paras.14-15 144
Case C-409/06 Winner Wetten v Bürgermeisterin der Stadt Bergheim [2010] EU:C:2010:503, para.53, citing Case 106/77 Simmenthal, ibid and Case C-213/89 Factortame a.o [1990] EU:C:1990:257, para.18
145 Case C-346/06 Rüffert, n.25 146 Recognised by Art.31 CFR 147
Case C-341/05 Laval, n.25
148 Case C-409/06 Winner Wetten n.144; T. Beukers, ‘Case C-409/06, Winner Wetten GmbH v. Bürgermeisterin
164 criminal offence to operate public games of chance without the authorisation of a public authority. The Land of Nordrhein-Westfalen had authorised one company, Westdeutsche Lotteries, to offer such games. Consequently, Winner Wetten, a German undertaking that brokered bets for a company established in Malta, was prohibited from pursuing this activity. It subsequently argued that this was a breach of the freedom of services, pursuant to Article 56 TFEU. The Bundesverfassungsgericht had already held, in a separate judgment, that a monopoly on betting infringed the fundamental right to pursue an occupation, protected by German Basic Law, since it did not ensure a reduction in gambling and addiction effectively. Accordingly, it had a disproportionate effect on fundamental rights. Nevertheless, the
Bundesverfassungsgericht held that the legislative restrictions on gambling could be maintained during a transitional period while the legislature addressed the issue at hand, so long as there was a minimum level of consistency between combatting gambling addiction and the effective existence of a monopoly. However, the national court in Winner Wetten
accepted that the domestic measure was also a breach of Article 56 TFEU, which could not be justified in practice. Consequently, it referred to the CJEU the question of whether the legislation could nevertheless remain in place for a transitional period, during which the national legislature would devise alternative means of reducing gambling addiction. Referring to its case-law on invalidity actions against Union legislation, the Luxembourg Court held that:
[T]he [temporary] maintenance of the effects of a Union measure…the purpose of which is to prevent a legal vacuum…may be justified where overriding considerations of legal certainty…are at stake.149
Nonetheless, it proceeded to declare that, ‘even assuming’ that, by analogy, this allowed for the provisional suspension of the ousting effect of a directly applicable Union measure on national law, this would be determined solely by the Court of Justice. Moreover, the condition of overriding reasons of legal certainty had not been met in Winner Wetten itself, since the national courts had themselves admitted that the domestic measure was not capable of
2000. To some extent the principle of mutual trust, in the context of dual regulatory burdens, can also be viewed as reducing the risk of legal vacuums. However, it should be recalled from ch.2, s.3.3.2 that this doctrine does not necessarily sufficiently cater for the idiosyncratic fundamental rights needs of the Member States. Moreover, in market access cases the existence of similar measures in the home State, where this is even relevant to the case, is not part of the breach rationale. Further, in Laval, Rüffert, and Commission v Luxembourg, the interpretation of the PWD as a ceiling of protection generally precluded future consideration of whether comparable protection was offered in the home State.
165 meeting the objective of combatting gambling addiction in a consistent and systematic manner.150
The Court’s use of the phrase ‘even assuming’ does not suggest much enthusiasm for the transfer of temporary suspensions of primacy into the adjudication of the relationship between free movement and conflicting national law. Indeed, subsequent cases citing Winner Wetten
have focused on reinforcing the general rule, originating with Simmenthal,151 that the principle of effective judicial protection requires the immediate setting aside of opposing domestic measures.152 Nevertheless, the Court’s application of the requirements for suspension in Winner Wetten itself is a clear illustration of its introduction to the area. However, it remains uncertain how suspensions will operate. What seems clear is that domestic fundamental rights measures, found to be legitimate in principle but having failed to overcome the proportionality test at the justification stage, will face a second procedural disadvantage in the requirement that they demonstrate overriding reasons of legal certainty in order to trigger a transitional period. Moreover, this assessment is inextricably linked to the question of whether domestic measures could be justified at all during the prior breach/justification assessment, arguably reducing the possibility that a transitional period will be available in practice. For instance, in Winner Wetten, itself, the fact that the national rules did not reduce gambling addiction in a consistent and systematic manner would seem to be the reason that they did not constitute a justified restriction on free movement in the first place. Accordingly, asking the same question to assess the availability of a transitional period arguably sets the domestic measure up to fail. Similar conclusions could be drawn in relation to Rüffert. Since the German rule did not ensure the application of minimum wage rules contained in collective agreements in a consistent and systematic manner, as they applied only to public contracts, presumably this measure could not be maintained while Germany rectified this inconsistency. This introduces broader questions about how else the Court might determine the permissibility of transitional periods. For instance, would Swedish rules on determining minimum pay fail to qualify for temporary retention because they ‘lacked clarity and precision’ even though this was also why they failed to be justified in the first place in
Laval?
150 Paras.67-68 151
Case 106/77 Simmenthal, n.143
152 Case C-606/10 ANAFE [2012] EU:C:2012:348, para.73; Case C-416/10 Križan a.o. [2013] EU:C:2013:8,
166 Nevertheless, the possibility of temporarily suspending the principle of primacy in order to avoid legal lacunae is to be welcomed since it introduces a potential means of addressing the current ‘all or nothing’ approach of primacy and effective judicial protection, whereby fundamental rights are left unprotected when domestic measures for safeguarding them fail to meet the proportionality requirements of the two-stage model. Transitional periods are arguably also critical from a democratic perspective since they create legal space for political