– My wife will not be able to import dog food from Germany to Sweden and will not be able to sell it to Denmark and Finland, because all countries have slightly different rules.
It immediately becomes clear when Nils Wahl, a judge at the European Court of Justice, answers the question of what the consequences will be if the principle of priority of EU law is abolished.
The example is not default. His wife previously ran a dog food import business.
And on a leather armchair in the EU judge’s office is a handsome Irish red setter – despite the fact that it is forbidden to bring animals into the magnificent EU courthouse on a hill above downtown Luxembourg.
– And how did you come here on your own? by train? Were there problems? No. But next time it might be. After that, you may have to show both different passports and certificates, says Nils Wahl.
Today there are thousands upon thousands of EU laws and rules. Most of them are aimed at facilitating the free movement of people, goods, services and capital across the European Union.
When these EU laws conflict with national laws, it is the EU court – that is, Niels Wahl and his 26 colleagues, a judge from each EU country – that listens to the parties, reads and interprets the laws, deliberates with each other and then the judges.
If national law is incompatible with EU law, it is the first that changes. Does it have to be this way? Yes, says Nils Wahl. This is the only way the European Union can function
If national law is incompatible with EU law, it is the first that changes. Does it have to be this way? Yes, says Nils Wahl. This is the only way the European Union can function. In any case, if the European Union wants to be more and deeper than international cooperation organizations such as the Council of Europe, the World Trade Organization or the United Nations.
The European Union is voluntary cooperation that cannot be maintained by force. Wahl says: If volunteering ends, it’s over.
Without the principle of the rule of law of the European Union Today, he says, EU cooperation is collapsing.
It does not happen immediately, but in the long term. All countries are doing what is politically appropriate at the moment. So it doesn’t matter if it’s a populist decision or a truly democratic one, the EU judge continued.
The principle of the precedence of EU law is not enshrined in EU treaties, but is based on case law.
This principle was established in Costa v. Enel in the 1970s – a case in which Italian law and European Union law came into conflict. The case itself was a cliché: an Italian man, Flaminio Costa, did not want to pay the electric bill from the energy company Enel.
This was neither the first nor the last goal, but today’s practice has been gradually built up, says Nils Wahl. In other cases, the Court has ruled that the primacy of EU law applies not only to national courts but also to administrative authorities, not only to state laws but also to constitutions.
Until the Polish ruling, this legal principle had not been called into question.
On the other hand, it happens that the countries of the European Union Constitutional courts, including German, French and Danish courts, question whether the EU really has the power to make decisions in certain areas.
The EU powers are divided in treaties, but there is room for interpretation. And that’s not a problem, says Niels Wahl.
Take as an example the Age Discrimination Act. The German Constitutional Court held that this was not within the power of the European Union, and therefore a ruling by the European Court of Justice would not apply.
It is a form of continuous dialogue between the courts. You talk to each other in some way through your judgments, says Niels Wahl.
– But there is a fundamental difference between such a dialogue and the ruling issued by the Polish Constitutional Court two weeks ago.
He does not want to develop the matter further, because the issue is politically sensitive and EU judges must remain impartial.
The main difference is that today the Polish Constitutional Court is not considered an independent court, but a political instrument of the current government.
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