The principle of supremacy of EU law was expressly proclaimed in an article in the European Constitutional Treaty... not adopted due to refusals on the parts of France and the Netherlands. In his work, Melchior Wathelet emphasises that if the phrase in the Constitutional Treaty proclaiming this principle disappeared from the Lisbon Treaty, the Member States have adopted an Appendix Declaration indicating that no change had been made to the principle of supremacy of European Law as proclaimed by the Court of Justice. “There is a certain schizophrenia on the part of the States: they accept the supremacy of European Law and the case-law from the Court of Justice in this regard... but as they are still a little uncomfortable with this, they refuse to state so openly, and prefer to place it in a declaration appended to the Lisbon Treaty (2) while the declarations are purely political texts, with no binding legal force, even if, when they are signed by all the States, they indicate a clearly common political will.”

Numerous Court of Justice rulings have important consequences in the daily lives of European citizens: equal treatment and social rights, freedom to provide services, right of residence, and so on. In 1991, in the Francovich ruling, the court confirmed a fundamental notion: a State’s liability to the individuals for damages suffered following a breach of European law by that State. Since then, European citizens may commence an action for damages against a State guilty of such negligence. A large number of decisions relate to the free movement of persons. One of the best known is the Bosman ruling, in which the Court indicates that professional sports is an economic activity that cannot be impeded by rules that hinder the international transfer of players or that limit the number of players who are nationals of another Member State.

A 10 million Euro fine for Belgium

The Commission may initiate proceedings (through so-called “non-compliance” proceedings) in the Court of Justice against any State who does not properly transpose the European Directives into its national legislation. Frequently, the first condemnation for non-compliance does little to encourage the States to conform to European law, since there is no sanction associated with it. Since 1992, any State who continuously ignores European law may be financially sanctioned by the Court of Justice through a ruling of “double non-compliance”. Many States have been ordered to pay heavy penalties or fines: Greece, Spain, France, Portugal, Italy, Ireland, Luxembourg and, for the first time, Belgium on 17 October 2013. In a first ruling on 8 July 2004, the Court noted that Belgium had infringed a 1991 Directive on urban waste water treatment. The progress made by the Regions (competent in this matter) was not quick enough and so Belgium was ordered in 2013 to pay the sum of 10 million Euro into the EU budget in addition to a penalty of 859,404 Euro per 6-month period of further delay in implementing the urban waste water treatment programme.

Belgium is still an “average student” amongst the Member States in applying European law. “The best student in this area is Denmark”, Melchior Wathelet notes. “The United Kingdom is also a country that distinguishes itself through its respect for European legislation. It doesn’t like associating itself with it, but when it accepts it, it respects it. Moreover, before 1990, the English criticized certain States for liking European legislation but not respecting it. They were at the origin of the 1992 reform that allowed financial sanctions to be imposed against a State found guilty of violating a European law by not adapting its legislation. It is rare that the English ask for the powers of a European institution to be strengthened, in this case, those of the Court of Justice.”

Influence of Euroscepticism

Melchior Wathelet notes that growing Euroscepticism has undoubtedly influenced the Court, “which is probably more careful about its legitimacy than in the periods when European integration generated enthusiasm”. “In theory, judges have an “objective” profession: they must apply and interpret the law. Real life is nonetheless more imaginative than that which the legislator could anticipate. When the legal texts do not correspond well with the situations to which they are applied, the judges (national or European) must not only interpret them but also bridge their gaps because, at the risk of denying justice, the judges must decide, even in the absence of a legislative or regulatory text. Judges are thus plunged into the reality of the moment. In Belgium, for example, criminal texts that repress paedophilia have not been changed but, confronted with cases of a similar crime, today’s judges will be much more stringent than those of 1980 because of the Dutroux case. With respect to European judges, once you’ve lived through the Euro-enthusiasm of the 1960s, your notions, your interpretation method, your appreciation for social life will be different from those of 2014, plunged in Euroscepticism.”

(2) Declaration 17, on the supremacy of EU law, which states that according to settled case-law of the Court of Justice of the European Union, treaties and law adopted by the Union based on treaties prevail over the law of Member States, under the conditions defined by the said case-law.