Application precedence

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The primacy is in the law besides the validity of priority one of the two forms, a standard collision dissolve.

According to the principle of priority of application, a matter can be covered by several legal norms , but only one legal norm, namely the prevailing one, applies to the matter. The application of the superseded, possibly higher-ranking norm is blocked. The term comes from Hartmut Maurer .

What is a priority of the two conflicting provisions, deciding by a conflict rule . The priority of application applies in particular to the conflict of laws rules Lex specialis derogat legi generali and to subsidiarity .

Primacy of application of Union law

In European law , the term priority of application of Union law describes the relationship between national (member state) and Union law. According to the principle of primacy of application of Union law, "the Treaties and the law established by the Union on the basis of the Treaties [...] take precedence over the law of the Member States". This means that national authorities and courts are obliged to apply the provision of Union law even if a provision of national law conflicts with this. On the other hand, Union law does not have priority .

The European Court of Justice stated this in the Costa / ENEL judgment : “In contrast to normal international treaties, the EEC Treaty created its own legal system which was incorporated into the legal system of the member states when it entered into force [...]. Because by establishing a community […] endowed with real […] sovereign rights, the member states have limited their sovereign rights, albeit in a limited area, and created a legal body that is binding on their members and themselves is. This incorporation of the provisions of Community law into the law of the Member States and […] the wording and spirit of the Treaty mean that it is impossible for States to take retrospective unilateral measures against a legal order they have adopted on the basis of reciprocity. Such measures do not therefore preclude the applicability of the Community legal order. Because it would jeopardize the achievement of the objectives of the Treaty listed in Article 5 (2) [now Article 4 (3) subpar. 3 TEU ] and […] result in discrimination if Community law could apply differently from one state to another depending on the subsequent domestic legislation ”.

The priority of application of Union law applies both to domestic law under ordinary law and to the constitutional law of the member states and thus, for example, also to the fundamental rights of the German Basic Law . The Federal Constitutional Court justifies the priority of application of Union law with the “constitutional authorization” of Article 23, Paragraph 1, Sentence 2 of the Basic Law. The consequence of this regulation is that the “right of the Federal Republic of Germany to rule within the scope of the Basic Law is withdrawn and room for the direct validity and application of a law from another legal source within the state domain is left”.

The priority of application of Union law presupposes the direct applicability of the corresponding provision of Union law, which in turn presupposes the “direct validity” of Union law. The direct application means that, as in the case of a regulation, there is no longer any need for a transformation act by the member state. A norm of Union law is directly applicable if it contains an applicable legal consequence in the individual case.

In addition to the application of provisions of Union law, provisions of member state law must be interpreted in the light of Union law in accordance with the “principle of interpretation in accordance with Union law”. Matters that are not related to Union law can still be covered by a Member State provision that is otherwise superseded by priority. The priority of application of Union law, on the other hand, does not cover any administrative acts that contain specific, individual decisions. These are to be repealed in accordance with the provisions of national law.

Individual evidence

  1. ↑ Röhl, Klaus F./Röhl, Hans Christian: General Theory of Law. A textbook . 3. Edition. Carl Heymanns, Cologne 2008, ISBN 978-3-452-26001-7 , p. 156 .
  2. ↑ Hartmut Maurer: General administrative law . 1st edition. CH Beck, Munich 1988, § 4 (18th edition 2011: § 4 marginal number 9).
  3. ↑ Thorsten Franz: Introduction to Administrative Science . Springer, Wiesbaden 2013, ISBN 978-3-531-19493-6 , pp. 244 .
  4. ^ A b Haratsch, Andreas / Koenig, Christian / Pechstein, Matthias: Europarecht . 9th edition. Mohr Siebeck, Tübingen 2014, ISBN 978-3-16-153193-4 , p. 86 ff .
  5. ↑ Treaty of Lisbon, Appendix: Declarations 17., OJ 2008, No. C 115, p. 344.
  6. ↑ ECJ, verb. Case C-10/97 to C-22/97, Coll. 1998, p. I-6307, Rn. 18 ff. - IN.CO.GE. '90 UA
  7. ↑ ECJ, Case 6/64, Coll. 1964, p. 1251, 1269 - Costa / ENEL .
  8. ↑ ECJ, Case 11/70, Slg. 1970, p. 1125, Rn. 3 f. - International trading company .
  9. ↑ BVerfGE 123, 267, 397 - Lisbon ; BVerfGE 73, 339, 374 f. - As long as II .
  10. ↑ BVerfGE 37, 271, 280 - As long as I .
  11. ↑ ECJ, Case C-106/89, Slg. 1990, p. I-4135, Rn. 8, 13 - Marleasing .
  12. ↑ EUGH, Case C-453/00, Coll. 2004, p. I-837 - Kühne & Heitz .