> It should be noted that the primacy of EU law only applies where EU countries have ceded sovereignty to the EU — fields such as the single market, environment, transport, etc. However, it does not apply in areas such as social policy and taxation.
Not so much. It was 'ceded' when the ECJ 'took' the power. 'Ceding' wasn't a vote or referendum, it was more or less recognizing the ECJ's power grab. Justices in the national courts started 'recognizing' the ruling, and because France has a weird constitutional basis in 1958 which recognizes treaties above their own law ... ECJ becomes the supreme court.
Nobody voted for it. There was no specific legislation. There was no specific treaty. It just happened like legal dominos falling over one another after a niche court ruling.
In Germany, we are not really sure what the situation is. The Germans said that their federal court could 'review' ECJ rulings, but never did. So what is the legal standing? Well the FCC (Germany) finally did take an ECJ case to task in 2020 and now ECJ Supremacy will be tested.
It's basically crazy that in 2021 nobody really knows who the Supreme Court is in Europe and in what areas. Here is the case. [1]
By the way - the French recognition of ECJ rulings depends on reciprocity, meaning, they only respect the rulings if the other states do. If Germany decides that it's courts have jurisdiction in Germany ... then this puts France's recognition of ECJ in jeopardy. (They did a constitutional review 20 years ago and had to ensure this 'reciprocity' which will be called into question by this Germany 2020 FCC case.)
It's basically kind of absurd that there is this much ambiguity in one of the major pillars of liberal democracy.
2) Yes, as you point out, the ECJ specific areas, but notably, the 'The Charter of Fundamental Rights of the European Union' is a vague, and therefore very widely scoping document. In Canada, after the introduction of such a charter, a whole host of laws where overthrown and the Supreme Court changes their minds about things and do as they please with vague wording such as 'freedom of expression and conscience' etc.. So this brings up some complicated questions for the EU as well on this. Rulings on this charter can delve into anything.
[1] https://www.clydeco.com/en/insights/2020/05/germanys-federal...
Where do they get that right? By treaty?
Or perhaps the European Court of Justice simply 'ruled' that it's laws were 'supreme' in a bizarre act of defining it's own jurisdiction outside of treaty agreements?
Europeans never agreed to give the ECJ supremacy. The ECJ just 'took' that power.
It's a baffling bit of legal history [1][2] and it demonstrates just how powerful these institutions can become outside of democratic norms.
A quote: "The principle was derived from an interpretation of the European Court of Justice, which ruled that European law has priority over any contravening national law, including the constitution of a member state itself. The majority of national courts have generally recognized and accepted this principle, except for the part where European law outranks a member state's constitution. As a result, national courts have also reversed the right to review the conformity of EU law with national constitutional law."
Because of this and the resulting vaguery, it's still not always perfectly clear which 'court' is supreme in exactly what ways.
The Germans resolve that EU laws cannot contradict their Basic Law - to be determined by their own Supreme Court, which is kind of a backwards way of saying 'our national courts still have supremacy'.
It would be pretty interesting to see Poland take on the ECJ in this case, because it might cause an EU level constitutional crisis as they'd probably challenge the legitimacy of the 'Supremacy' ruling from 1964 that set the precedent.
It's not as clear cut as the headlines would have us believe, like for example a US State taking on the Supreme Court.
Even in Canada, the provincial leaders invoke Constitutional shenanigans to make up their own laws that can't be rescinded by the constitution.
We'll have to see what happens.
[1] https://eur-lex.europa.eu/summary/glossary/primacy_of_eu_law...
[2] https://en.wikipedia.org/wiki/Primacy_of_European_Union_law