European Union Law: The Judge Must Disapply a Contrary National Law

Imagine for a moment: you are a stage technician at the Paris National Opera, and you learn that your colleagues in the wardrobe department retire at 55, while you have to wait until 60. In Panazol, as in Limoges, this inequality would seem unfair to you. But what to do when a regulatory text sets a different age, and the administration refuses to budge?

This question was decided by the Court of Cassation on 30 September 2013 in a case that goes far beyond the backstage of the Opera. At the heart of the debate: the conflict between a national rule and European Union law. Does the judge have the power to set aside a national text to give priority to European law? The answer is yes, and it is final.

Judgment No. 12-14.752 enshrines the principle of effectiveness of EU law: any national judge, even a judicial one, must leave unapplied a provision contrary to EU law, without being obliged to refer the matter to the administrative judge beforehand. A silent revolution that directly concerns owners, tenants and real estate professionals, who are often faced with European standards (directives on unfair terms, right of withdrawal, etc.).

The Facts: A Story Like Many Others

At the Paris National Opera, stage technicians (set designers, lighting technicians, stagehands) and staff in the wardrobe and wig-makeup departments work side by side. But a gap separates them: the retirement age. The latter benefit from a practice allowing them to retire at 55, while the former must wait until 60, in accordance with Article 6 of the Decree of 5 April 1968.

Trade unions take legal action to have a similar practice recognised for technicians. Before the Court of Appeal, they argue for equal treatment. But the lower court judges reject their claim: in their view, the difference in treatment is based neither on a text nor on a practice, but on a decision of the administrative authority (the minister), which the judicial judge cannot review. In other words, the civil judge would not have the power to examine the validity of an administrative act.

The unions appeal to the Court of Cassation. Their argument: the judicial judge, faced with a possible violation of European Union law (principle of equal treatment), must apply it directly and set aside the contrary national provision, without having to refer the matter to the administrative judge. The Court of Cassation agrees, quashing the appeal judgment.

The Reasoning of the Court — Analysed

The Court of Cassation relies on Article 88-1 of the Constitution, which incorporates EU law into the French legal order, and on the EU Treaties (TEU and TFEU) as interpreted by the Court of Justice of the European Union (CJEU). The principle of effectiveness requires the national judge to ensure the full effect of EU law, by leaving unapplied any contrary national provision, on his or her own authority.

Concretely, when a litigant invokes a European rule (for example, equal treatment) before a civil judge, the latter must verify whether national law is compatible. In case of incompatibility, he must set aside the national law or regulation, without waiting for the administrative judge to rule. He may also, if in doubt about the interpretation of EU law, refer a preliminary question to the CJEU.

In this case, the Court of Appeal had refused to examine the merits, hiding behind the incompetence of the judicial judge. The Court of Cassation reminds that this is not an option: the judge must decide. It does not rule on the merits (existence or otherwise of a practice), but refers the case to another Court of Appeal to rule applying EU law. This is a confirmation of previous case law (notably the CJEU Simmenthal judgment of 1978) and a step forward for litigants.

What This Changes for You — Concretely

This decision has implications far beyond the Opera's pensions. In property law, many European directives protect consumers: unfair terms in sale or lease contracts, right of withdrawal in reservations, pre-contractual information obligations. If a national text is less protective than the directive, the judge must set it aside.

Imagine: in Limoges, a buyer signs a preliminary sale agreement with a clause imposing disproportionate penalties in case of withdrawal. Directive 93/13/EEC prohibits unfair terms. If the judge finds the clause unfair, he must annul it, even if the Civil Code does not explicitly provide for this. Before this judgment, a judge might have hesitated. Now, he knows he can act.

Another example: a tenant in Panazol is required to pay a security deposit of three months' rent, while Directive 2008/48/EC on consumer credit (applicable to certain leases) limits charges. The judge can set aside the clause and order a refund. For owners and professionals, this means they must check the conformity of their contracts with European law, on pain of having certain clauses annulled.

In practice, if you believe that a French law or regulation violates your rights under EU law, you can raise this before any judge, who is obliged to draw the consequences. Do not wait for the Council of State to rule: the first-instance judge can do the job.

Four Tips to Avoid This Type of Dispute

• Check your contracts in light of European directives: if you are a landlord or seller, ensure your clauses do not contradict a directive (for example, on late fees, termination clauses). A legal professional can help you audit them.
• Keep all evidence of pre-contractual information: in case of a dispute, you will need to prove that you complied with the information obligations imposed by European law (for example, the withdrawal period in real estate sales).
• Do not hesitate to invoke EU law before the judge: if you believe a national provision is unfavourable to you, cite the corresponding European directive or regulation. The judge must apply it of his own motion in certain cases.
• Anticipate appeals by engaging a specialised lawyer: issues of primacy of EU law are technical. A lawyer can identify the applicable standards and build a solid argument, as Maître Zakine does for her clients in Limoges and elsewhere.

Further Reading: Related Case Law and Developments

This decision is part of a consistent line of the Court of Cassation and the CJEU. As early as 1978, the Simmenthal judgment (CJEU) laid down the principle of primacy of EU law and the obligation for the national judge to leave unapplied any contrary norm. In France, the Council of State judgment "Société Arcelor" (2007) had admitted that the administrative judge could set aside a law contrary to EU law. But the specificity of the 2013 judgment is to affirm that the judicial judge does not need to wait for a preliminary reference to the administrative court.

Since then, the Court of Cassation has applied this reasoning in other areas: for example, in matters of unfair terms (Civ. 1st, 14 March 2018, No. 16-24.419) or consumer law (Civ. 1st, 12 September 2019, No. 18-16.074). The trend is clear: French judges are increasingly willing to review the conformity of national laws with EU law. For litigants, this is an additional weapon to assert their rights.

In Practice: What to Do

FAQ

• Can I challenge a French law by directly invoking EU law? Yes, before any judge (civil, administrative, criminal). You must demonstrate that the national law is contrary to a directly applicable European rule.
• What if my judge refuses to apply EU law? You can appeal, then appeal to the Court of Cassation. The Court of Cassation will censure the judge's refusal to apply the principle of effectiveness.
• What time limits apply? Limitation periods depend on the subject matter (5 years in general law, 2 years in consumer law). Act quickly upon becoming aware of the violation.
• What are the costs of an appeal? Lawyer's fees vary. An initial consultation with Maître Zakine (€45 for 30 minutes) allows you to assess your chances and the steps involved.
• Can a property professional be penalised for failing to comply with a European directive? Yes, by annulment of clauses, damages, or even criminal penalties. Better to prevent by checking your contracts.

Are you in a similar situation? A 30-minute initial consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →