The European Union played a leading role during the health crisis, particularly in terms of vaccine orders and the granting of their marketing authorization (AMM). On this occasion, many French people became aware of the weight of European law in the decision-making process of the State at the national level. To understand the driving forces behind this, Olivier Frot, doctor of public law, explains here the mechanisms underlying the link between European law and national law.
TRIBUNE – The hierarchy of legal norms
The characteristic of the rule of law is reflected in the hierarchy of legal norms, schematized here:
We can see in this diagram that the supreme norm is the Constitution, and immediately below, the international treaties ratified by France. Concerning the development of the law, the parallelism of forms is the rule, namely that only the law can undo what it has done, that the regulation is subordinate to it and cannot intervene in the field of the law.
The Constitution defines in its article 34 what falls within the domain of the law and in its article 37, of the regulatory domain (decrees and orders).
The place of European law
1. Treaties
The body of European law is abundant and complex. A distinction will be made between what is exclusively the responsibility of the European Union and what belongs to the Council of Europe, which are two distinct entities, but often confused by the general public. For the latter, it is the European convention of human rights.
On the European Union side, there is first of all the Treaty on the functioning of the European Union (TFEU), to be included in this corpus. In this case, it is currently the Treaty of Lisbon, which also includes all those which preceded it (Nice, Maastricht, etc.). EU Charter of Fundamental Rights.
These three texts are treaties which have been ratified by France. In accordance with the provisions of article 55 of the 1958 Constitution, “ treaties or agreements regularly ratified or approved have, from their publication, an authority superior to that of the laws, subject, for each agreement or treaty, of its application by the other party ».
As a result, national law cannot go once morest the provisions of these treaties.
2. Directives and regulations
In addition, the European Union publishes directives and regulations, in order to concretely implement the points decided on in the Treaties, in the various fields concerned delegated by the Member States to the Union. Directives are drawn up at the initiative of the Commission, discussed and voted on by the Council of European Ministers and the European Parliament, which votes on their adoption. Once voted, the directives must be transposed into the national standards of the Member States before the end of a period decided with the directive (generally from 18 months to two years). The transposition will be carried out by means of laws and / or regulations, depending on the area covered by the directives.
For example, regarding public procurement, we have four directives (here, here, here, and here), transposed into French law in the Public Order Code which entered into force in 2019, comprising a legislative part (articles starting with an L) and a regulatory part (articles starting with an R).
European regulations are documents considered to be technical. Prepared by the Commission, they are immediately applicable and do not require transposition in domestic law for their execution. To take the example of public procurement, the content of notices inviting companies to tender for a public contract, is the subject of a regulationt. In the Covid news, it is important to underline the existence of regulations, in particular that concerning the regime of conditional marketing authorizations for medicinal products called vaccines.
What is the place of directives and regulations in domestic law? In two major judgments (here and to be), the Council of State ruled in 1989 that the European directives are a standard equivalent to the ratified treaties and that thus, a law subsequent to the date of entry into force of a directive cannot go once morest the provisions thereof and that an earlier but contrary law must be changed. The Court of Cassation had ruled earlier than the Council of State in agreeing to review the compatibility of a post-treaty law.
3. Jurisprudence
Case law ” european »Has an important place in this system. The role of the judge is to settle a dispute with regard to the texts, which amounts to interpreting texts and often leads to constructions ” Praetorians », That is to say that the judge will fabricate a rule of law during a judgment.
Jurisdictions are different, depending on whether it is the European Union or the Council of Europe.
For the European Union, the competent court is the Court of Justice of the European Union (CJEU) located in Luxembourg. Its function is to interpret European law in order to ensure that it is applied in the same way in all the Member States and to settle conflicts between the governments of the Member States and the European institutions. The Court has a Court of first instance (TP1) competent to judge certain instances.
For the Council of Europe, the competent judge is the European Court of Human Rights (ECHR), located in Strasbourg. This international court is responsible for ” ensure respect for the European Convention for the Protection of Human Rights and Fundamental Freedoms by the 47 States which have ratified it ».
Conclusion
European law is by nature superior to national law and the legislative and regulatory authorities do not have the possibility, having ratified these treaties, to free themselves from them. Likewise, the judicial decisions of CJEU or ECHR entities are opposable in internal jurisdictional conflicts.
