The ‘Costanzo obligation’ of national administrative authorities in the light of the principle of legality: prodigy or problem child?
Abstract
If there is a conflict between a provision of national law
and a directly effective provision of EC law, administrative authorities
are obliged to set aside national law if consistent interpretation of the
latter is not possible, and eventually to apply directly effective provisions
of Community law instead. This obligation, which the European
Court of Justice (ECJ) has clearly formulated for both primary EC law
and secondary legislation, is hereinafter for reasons of convenience
referred to as the ‘Costanzo obligation’. Although this obligation may
seem entirely clear cut and explicable from a European perspective,
problems may occur from the point of view of national constitutional
and administrative law. In this paper, the effect of the ‘Costanzo obligation’
with regard to the principle of legality in Germany, France and
the Netherlands is discussed.
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