primacy

Which translation, when

Why

Primacy is Anwendungsvorrang, and the German term carries a distinction the English word hides. Since Costa v ENEL, EU law prevails over conflicting national law, but the German courts describe this as an Anwendungsvorrang, an application priority: the national rule is simply not applied in the case, while remaining valid. That is different from the Geltungsvorrang of Art. 31 GG, where conflicting Landesrecht is void, and rendering primacy as though the national statute were struck down overstates the effect. The second point is that in Germany the priority is not unconditional. The Bundesverfassungsgericht grounds it in the German act of accession under Art. 23 GG, not purely in EU law, and reserves two controls: an ultra-vires review, if an EU act manifestly exceeds the powers conferred, and an identity review protecting the core of the constitution; where either applies the act does not take priority in Germany, as the PSPP decision showed. The CJEU sees primacy as flowing from EU law itself and admits no such reserve. So rendering primacy as Anwendungsvorrang is right, but carrying an assumption of unconditional, validity-destroying supremacy misses both the nature and the German limits of the priority.

Typical mistakes

• Anwendungsvorrang sets the national rule aside in the case; it does not void it, unlike the Geltungsvorrang of Art. 31 GG, so rendering primacy as though the national statute were struck down overstates the effect.
• In Germany the priority is grounded in Art. 23 GG and limited by the BVerfG’s ultra-vires and identity review, so presenting EU supremacy as unconditional misstates the German position, PSPP.
• Primacy governs which rule is applied in a conflict, not a hierarchy of validity, so equating it with a domestic supremacy clause misreads it.

What matters

Setting out how an EU rule interacts with German law, the memo should call the effect an Anwendungsvorrang, the conflicting national rule set aside but not void, and flag that the priority is bounded by Art. 23 GG and the BVerfG’s ultra-vires and identity review. Carrying an assumption of unconditional supremacy that voids national law misstates both the mechanism and its limits.

Examples