Supremacy of EU law: Can the lower court disregard a decision of the Supreme Court in order to apply EU law?

This article provides a short overview of the supremacy of EU law against decisions of the national Supreme Court.

In common law jurisdictions, it is well known that courts operate in hierarchy and lower courts apply and our bound by the decisions of higher courts (doctrine of stare decisis). What happens, however, when the decision of the Supreme Court is deemed incompatible with EU law by the lower court?

In the decision of Hadjisofokleous v. ETEK, case no. 298/2016, dated 16.6.2021, the judge of the Administrative Court considered herself bound by EU law and respectfully disregarded the precedent of the Supreme Court on the key issue of the case. In doing so, the Court considered that the national judge is bound to apply EU law and interpret national legislation in accordance with EU law. The Court emphasised the following:

"The Court of Justice of the European Union (CJEU) analyzed the obligation of national courts to interpret national law in conformity with EU law in the joined cases C-397/01 to C-403/01, as follows:

"110.However, according to settled case law since the judgment of 10 April 1984 in Case 14/83, Von Colson and Kamann (ECR 1984, p. 1891, para. 26), the obligation of Member States arising from a directive to achieve the result it pursues, as well as their duty under Article 10 EC to take all appropriate general or specific measures to ensure the fulfillment of this obligation, applies to all authorities of the Member States, including courts within the scope of their jurisdiction (see, inter alia, judgments of 13 November 1990, C-106/89, Marleasing, ECR 1990, p. I-4135, para. 8; Faccini Dori, cited above, para. 26; 18 December 1997, C-129/96, Inter-Environnement Wallonie, ECR 1997, p. I-7411, para. 40; and 25 February 1999, C-131/97, Carbonari et al., ECR 1999, p. I-1103, para. 48).

111. Indeed, it is particularly up to national courts to ensure the legal protection derived from EU law provisions for individuals and to guarantee their full effectiveness.

112. This obligation applies even more when a national court is called upon to decide on the application of provisions of national law which, as in this case, were specifically adopted to transpose a directive intended to confer rights on individuals. The court must, taking into account Article 249, third paragraph, EC, assume that the Member State, having exercised the discretion granted to it by that provision, intended to fully fulfill its obligations arising from the relevant directive (see judgment of 16 December 1993, C-334/92, Wagner Miret, ECR 1992, p. I-6911, para. 20).

113. Thus, when applying national law, particularly provisions implementing a directive, national courts must interpret it, as far as possible, in the light of the wording and purpose of the directive, so as to achieve the result sought by it, thereby complying with Article 249, third paragraph, EC (see, in this regard, inter alia, the cited judgments of Von Colson and Kamann, para. 26; Marleasing, para. 8; and Faccini Dori, para. 26; see also judgments of 23 February 1999, C-63/97, BMW, ECR 1999, p. I-905, para. 22; 27 June 2000, C-240/98 to C-244/98, Océano Grupo Editorial and Salvat Editores, ECR 2000, p. I-4941, para. 30; and 23 October 2003, C-408/01, Adidas-Salomon and Adidas Benelux, ECR 2003, p. I-12537, para. 21).

114. The obligation to interpret national law in conformity with EU law is inherent in the Treaty system, as it allows national courts to ensure, within the scope of their jurisdiction, the full effectiveness of EU law when adjudicating disputes before them (see, in this sense, judgment of 15 May 2003, C-160/01, Mau, ECR 2001, p. I-4791, para. 34)."

In its judgment of 19 December 2019 in the Case C-752/18 (Deutsche Umwelthife eV), the CJEU reaffirmed (para. 42) that:

"If a national court, within its jurisdiction, cannot interpret a national provision in conformity with the requirements of EU law, it has an obligation, as a body of a Member State, to set aside any national provision that is contrary to a directly effective provision of EU law in the case before it" (judgments of 9 March 1978, Simmenthal, 106/77, EU:C:1978:49, para. 21; and 24 June 2019, Popławski, C-573/17, EU:C:2019:530, paras. 58 and 61).

The CJEU summarized its settled case law on the supremacy of EU law and the obligations it imposes on national courts in its judgment in the joined cases C-585/18, C-624/18, and C-625/18:

"156. The essential characteristics of EU law include its origin from an autonomous legal source, namely the Treaties, its primacy over the law of Member States, and the direct effect of numerous provisions applicable to both Member States and their citizens. Based on these fundamental characteristics, a structured framework of principles, rules, and legal relationships has been established, which are interdependent and mutually binding on both the EU and its Member States, as well as among the Member States themselves [Opinion 1/17 (EU-Canada CETA), 30 April 2019, EU:C:2019:341, para. 109 and the case law cited therein].

157. The principle of the primacy of EU law establishes the superiority of EU law over the law of Member States (judgment of 24 June 2019, Popławski, C-573/17, EU:C:2019:530, para. 53 and the case law cited therein).

158. This principle requires all national authorities to ensure the full effectiveness of EU legal rules, and Member States' laws must not undermine the effectiveness of these rules within their respective territories (judgment of 24 June 2019, Popławski, C-573/17, EU:C:2019:530, para. 54 and the case law cited therein).

159. In this regard, the principle of consistent interpretation requires national courts, as far as possible, to interpret domestic law in a manner consistent with EU law in order to ensure the full effectiveness of EU law when adjudicating cases before them (judgment of 24 June 2019, Popławski, C-573/17, EU:C:2019:530, para. 55 and the case law cited therein).

160. Furthermore, under the principle of primacy, if it is impossible to interpret national legislation in conformity with EU law, the national court responsible for applying EU law must ensure its full effectiveness by setting aside any conflicting national provision, even if it is later in time, without needing to request or await its prior repeal through legislative or other constitutional procedures (judgment of 24 June 2019, Popławski, C-573/17, EU:C:2019:530, para. 58 and the case law cited therein).

161. Accordingly, any national court seised of a case must, as a body of a Member State, set aside any national provision that conflicts with a directly effective provision of EU law in the case before it (judgment of 24 June 2019, Popławski, C-573/17, EU:C:2019:530, para. 61 and the case law cited therein)."

You can read the decision (in Greek) by clicking at https://www.cylaw.org/cgi-bin/open.pl?file=administrative/2021/202106-298-16apof.html&qstring=%F0%F1%EF%E4%E9%EA%E1%F3%F4%2A%20%E5%F1%F9%F4%E7%EC%2A%20%F3%F4%EF%20%E4%E5%E5.

If in doubt whether EU law applies in a particular situation, consider seeking legal advice.

This article has been written by Chara Palekythriti, Lawyer - Legal Consultant ©

Disclaimer: This article is for informative purposes only and does not constitute legal advice, opinion or otherwise.