Načelo primarnosti prava EU in obveznosti nacionalnih sodnikov - od effet utile do Francovicha

slovenian

2026

volume 52, issue 3/4

consistent interpretation   direct effect   disapplication of incompatible legislation   hybrid remedies   national courts   national procedural autonomy   primacy of EU law   triad of principles

Narodna in univerzitetna knjižnica
(Obvezni izvod spletne publikacije)

In accordance with the principle of primacy, European Union law prevails over conflicting provisions of national law. Consequently, Member States, acting through both their legislative and judicial authorities, are required to take all necessary measures to ensure the full effectiveness (effet utile) of EU law within their domestic legal orders. The main research question is how a national court should proceed when it finds that national legislation is incompatible with EU law. While the principle of primacy appears straightforward in the abstract, the precise duties of national courts in situations of conflict are not always self-evident. The primary mechanism through which a national court seeks to reconcile such a conflict is the principle of consistent interpretation. This obligation applies irrespective of whether the relevant provision of EU law possesses direct effect. It derives from the combined operation of the principle of primacy and the principle of sincere cooperation. Moreover, the duty of consistent interpretation is exceptionally far-reaching, requiring national courts to interpret domestic law, so far as possible, in light of the wording and purpose of the relevant EU measure. Only if a consistent interpretation of national law nevertheless fails to achieve the desired objective in light of EU law does the question of the direct effect of a specific provision of Union law arise. If the provision has such an effect, it may be directly applied instead of the incompatible national provision. If it does not, the national authority (the judge and/or the legislature) must do everything possible to ensure that its content nevertheless achieves “full effect” within the national legal system. How the national authority will do this, however, is, in accordance with Article 288 TFEU, largely left within the discretion of the competent national authorities.

12.10.2026