Arrêt Nicolo (1989): Supremacy of EU Law

The Arrêt Nicolo, decided by the Conseil d’État on 20 October 1989, is a landmark decision in which the highest French administrative court accepted the supremacy of EU law over subsequent French legislation. The case resolved a long-standing tension between French constitutional traditions and European legal integration, aligning French administrative law with the requirements of EU membership. The decision completed the reception of the EU legal order into French law and opened the door to more extensive judicial review of national legislation against EU law.

Facts

Mr. Nicolo challenged the validity of the French electoral law for European Parliament elections, arguing that it discriminated against French overseas territories in violation of the Treaty of Rome. The law had been enacted after the treaty. The electoral law excluded overseas territories from the European Parliament elections, and Nicolo argued that this violated the principle of non-discrimination in the Treaty of Rome. The case required the Conseil d’État to determine whether it would review the compatibility of a post-treaty statute with the treaty.

Legal Issue

The question was whether the Conseil d’État would review the compatibility of a French statute with EU law and, if a conflict existed, whether to give priority to the EU treaty or the later French statute. Under traditional French doctrine, administrative courts could not review statutes for compatibility with treaties. The constitutional text of Article 55 provided that treaties have superior authority to statutes, but the Conseil d’État had historically refused to apply this provision to displace statutes enacted after treaty ratification.

The Earlier Position

In the 1968 Syndicat général des fabricants de semoules de France decision, the Conseil d’État had refused to give priority to EU law over a later French statute, holding that interpretation was a matter for Parliament. This position conflicted with the European Court of Justice’s doctrine of supremacy and the Court of Cassation’s 1975 Café Jacques Vabre decision, which had accepted supremacy. The Conseil d’État’s resistance created a split in French jurisprudence, with the judicial courts accepting supremacy but the administrative courts refusing to apply it.

The Café Jacques Vabre decision of the Court of Cassation in 1975 had directly accepted the supremacy of EU law over subsequent French legislation. The Court of Cassation held that Article 55 of the Constitution required judicial courts to set aside statutes incompatible with EU treaties. This created a constitutional anomaly: the same constitution produced different results in the two court systems. The Nicolo decision resolved this anomaly by aligning the Conseil d’État with the Court of Cassation.

The Decision

The Conseil d’État reversed its position and held that it would review the compatibility of French legislation with EU treaties. Where a conflict exists, the treaty prevails over the later statute. The Conseil found no violation on the facts but established the principle of EU law supremacy in French administrative law. The decision represented a complete reversal of the Semoules doctrine and brought French administrative law into line with EU requirements.

Reasoning

The Conseil relied on Article 55 of the 1958 Constitution, which provides that treaties duly ratified have authority superior to statutes, subject to reciprocity. The Conseil held that this constitutional provision requires administrative courts to set aside statutory provisions incompatible with EU law. The reasoning was elegantly simple: the Constitution itself required treaty supremacy, and the Conseil was merely giving effect to a constitutional command. This reasoning avoided any suggestion that the Conseil was surrendering French sovereignty to an external legal order; rather, it was applying the constitutionally prescribed hierarchy of norms.

The reciprocity condition in Article 55 required the Conseil to consider whether the treaty was applied by the other parties. The Conseil satisfied itself that the EU treaties were applied by all Member States, meeting the reciprocity requirement. This condition has not subsequently proved to be a significant limitation on the application of EU law in French courts.

Significance

The Nicolo decision was transformative. It aligned French administrative law with the Court of Cassation and the European Court of Justice. It opened the door to more extensive review of national legislation against EU law. It also laid the groundwork for the Conseil’s subsequent acceptance of review against the European Convention on Human Rights and general principles of EU law. After Nicolo, the Conseil d’État became a full participant in the application of EU law, contributing to the development of European legal integration through its own jurisprudence.

Legacy

Arrêt Nicolo is frequently cited as the decision that completed the reception of EU law supremacy into the French legal order. It resolved a constitutional conflict that had persisted for over a decade and confirmed that French courts would enforce European legal obligations even against subsequent national legislation. The case remains a milestone in the integration of national and European legal systems, demonstrating how national courts can adapt constitutional traditions to meet the requirements of supranational legal orders.