Provisional text
OPINION OF ADVOCATE GENERAL
SZPUNAR
delivered on 21 May 2026 (1)
Case C‑242/25
S,
T,
AS SEB banka
other party:
Latvijas Republikas Saeima
(Request for a preliminary ruling from the Latvijas Republikas Satversmes tiesa (Constitutional Court, Latvia))
( Reference for a preliminary ruling – Economic and monetary policy – Monetary policy – Areas falling within the competence of the European Central Bank – Draft national legislation – Consultation of the European Central Bank – Article 127(4) TFEU – Decision 98/415 – Article 4 – Compliance by national authorities )
I.      Introduction
1.        The present request for a preliminary ruling from the Latvijas Republikas Satversmes tiesa (Constitutional Court, Latvia) concerns the interpretation of the right of the European Central Bank (ECB) to be consulted in the process of adoption of national legislation falling within the ECB’s fields of competence, and provides the Court with an opportunity to develop its case-law on the non-applicability of national law adopted in breach of a procedural requirement prescribed by EU law.
II.    Legal framework
A.      Decision 98/415/EC
2.        The provisions relevant to the present case are Articles 2, 3 and 4 of Council Decision 98/415/EC of 29 June 1998 on the consultation of the European Central Bank by national authorities regarding draft legislative provisions. (2)
B.      Latvian law
1.      The Constitution
3.        Article 64 of the Latvijas Republikas Satversme (Constitution of the Republic of Latvia; ‘the Constitution’)
of 15 February 1992 (3) provides that the right to legislate lies with the Saeima (Latvian Parliament)’ and the people in accordance with the procedures and to the extent laid down in the Constitution.
4.        Under Article 70 of the Constitution, the State President is to enact laws by means of the following formula: ‘the Saeima (that is, the People) has adopted and the President has proclaimed the following law: (text of the law).’
5.        Article 71 of the Constitution provides for the right of the State President to request a second examination of a law: within 10 days of the adoption of a law by the Parliament, the President, by means of a written and reasoned request to the Chairperson of the Parliament, may require that a law be reconsidered. If the Parliament does not amend the law, the President may not raise objections a second time.
2.      Rules of Parliamentary Procedure
6.        Article 114, paragraph 1, of the Saeimas kārtības rullis (Rules of Parliamentary Procedure) of 28 July 1994 (4) provides that a bill is deemed to have been adopted and thus becomes law if it has been debated in three readings and has obtained an absolute majority of the votes of the members of the Latvian Parliament present at the vote.
3.      Law on consumer rights protection
7.        Article 84
of the Patērētāju tiesību aizsardzības likums (Law on consumer rights protection) of 18 March 1999, (5) in the version thereof applicable to the facts of the main proceedings, established a support mechanism for consumers who had taken out variable-rate mortgage loans. That mechanism essentially consisted of compensation paid to consumers corresponding to part of the interest they had paid, financed by a fee charged to credit institutions and certain other entities.
III. Facts, procedure and questions referred
8.        In the light of the considerable burden borne by households resulting from the increase in loan repayments and consumer prices driven by the rise in the EURIBOR rate and inflation, a draft law entitled ‘Grozījumi Patērētāju tiesību aizsardzības likumā’ (Amendment to the Law on consumer rights protection; ‘the draft law’) was presented to the Latvian Parliament on 6 October 2023. That draft law was intended to supplement the aforementioned law with an Article 84 by including in it a mechanism to support mortgage borrowers. The Latvian Parliament appointed the Budžeta un finanšu (nodokļu) komisija (Budget and Finance (Taxation) Committee; ‘the Budget Committee’) as the committee responsible.
9.        The draft law was examined in three parliamentary readings and debated in 13 Budget Committee meetings attended by representatives of the public administrations and institutions representing the sector concerned. The versions of the draft law adopted at the various readings were different from each other.
10.      On 30 November 2023, the Budget Committee examined the draft law ahead of its third and final reading and approached the ECB with the version of the draft law proposed prior to the third reading and a request for it to deliver an opinion on that version.
11.      On 6 December 2023, without waiting for the ECB’s opinion, the Latvian Parliament approved the likums ‘Grozījumi Patērētāju tiesību aizsardzības likumā’ (Law amending the Law on consumer rights protection; ‘the contested law’) on its third reading and sent it to the State President for enactment.
12.      On 11 December 2023, the ECB adopted and published an opinion on the temporary mortgage borrower protection fee payable by credit institutions (CON/2023/42). In that opinion, the ECB was cautiously critical of the Republic of Latvia’s temporary mortgage borrower protection fee: it warned that the contested law could weaken monetary
policy transmission, reduce bank profitability and capital, distort competition and create financial
stability risks, and it recommended a more complete
impact assessment prior to
adoption.
13.      On 20 December 2023, the ECB’s opinion was discussed at a meeting of the Budget Committee, which was also attended by representatives of the public administrations and institutions representing the sector concerned. On that same day, the President enacted the contested law, which entered into force on 1 January 2024. Article 84 was thus added to the Law on consumer rights protection.
14.      Under that article, credit institutions and certain other institutions active in consumer credit (‘the fee payers’) were obliged to pay a tax known as the mortgage borrower protection fee (‘the fee’). At the same time, that article
provided for a compensation, payable to mortgage borrowers meeting the requirements which it laid down and covering part of the interest paid by them. The fee payers were obliged to calculate the compensation due to each eligible mortgage borrower and to forward that information to the Valsts ieņēmumu dienests (State Revenue Service; ‘the VID’). The VID paid the compensation into the accounts of the borrowers concerned once a quarter from the revenue derived from the fee.
15.      The scheme provided for in the contested
law was applied until 31 December 2024.
16.      SEB banka, a credit institution registered in Latvia, and two individuals (S and T) brought proceedings before the Latvijas Republikas Satversmes tiesa (Constitutional Court), which is the referring court, arguing that the contested law is unconstitutional, in particular because it is in breach of
the principle of proper enactment of legislation. They claim that the Latvian Parliament failed to fulfil its obligation to consult the ECB before adopting the contested law.
17.      The referring court seeks to ascertain, first, whether the obligation imposed by EU law on an authority of a Member State to consult the ECB at an appropriate stage is fulfilled when the parliament of the Member State adopts a law before receiving the ECB’s opinion, where there is a procedure allowing for a further review of that law by the parliament before its enactment and entry into force.
The referring court seeks guidance, secondly, on the question whether a possible failure to comply with the obligation to consult the ECB, as provided for in
Article 127(4) TFEU and at an appropriate stage within the meaning of Article 4 of Decision 98/415, must be regarded as a breach of EU law rendering the legal provisions adopted by a Member State inapplicable. In that regard, the referring court states that it has held consistently that only substantial procedural defects can render a national provision unlawful. It notes that the Court of Justice’s case-law has not yet clarified the consequences of a failure to consult the ECB at an appropriate stage for the applicability of a Member State’s legislation.
Should the Court rule that failure to comply with the obligation to consult the ECB at an appropriate stage constitutes a substantial procedural defect, the referring court asks, thirdly, whether the principles of legal certainty and the primacy of EU law must be interpreted as meaning that the Latvijas Republikas Satversmes tiesa (Constitutional Court) may order, in its judgment, that the legal effects of the contested provisions are to be maintained for the duration of their validity.
18.      It is against that background that, by order of 31 March 2025, received at the Court on the same day, the Latvijas Republikas Satversmes tiesa (Constitutional Court, Latvia) referred the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Must Article 127(4) [TFEU] and Article 4 of [Decision 98/415] be interpreted as meaning that the obligation which that provision imposes on the authority of a Member State to consult the [ECB] at an appropriate stage is fulfilled in the case where the parliament of a Member State adopts a law before receiving the opinion of the [ECB] but there is a procedure whereby that law may be the subject of a second examination in parliament before it is enacted and enters into force?
(2)      If the first question is answered in the negative, is an infringement of Article 127(4) [TFEU] and Article 4 of [Decision 98/415] to be regarded as constituting a substantial procedural defect rendering the provisions of national law adopted in breach of EU law inapplicable?
(3)      If the second question is answered in the affirmative, are the principles of the primacy of EU law and legal certainty to be interpreted as meaning that the [Latvijas Republikas]
Satversmes tiesa (Constitutional Court …) may decide in the judgment it gives that the legal effects of the contested provisions must be maintained during [the]
period for which they were in force?’
19.      Written observations have been submitted by SEB banka, the Latvian and Portuguese Governments, the ECB
and the European
Commission.
All of those parties attended the hearing, which was held on 27 January 2026.
IV.    Assessment
A.      Preliminary remarks
20.      By way of preliminary remarks, I should briefly like to put the proceedings before the referring court into context and explain the genesis of the questions in the procedure before the referring court.
21.      The referring court is tasked with assessing the compliance of the support mechanism available to mortgage borrowers under Article 84 of the Law on consumer rights protection with Article 1 of the Latvian Constitution, the principle of equality before the law enshrined in the first sentence of Article 91 thereof and the right to property guaranteed by the first to third sentences of Article 105 thereof.
22.      In that connection, it is alleged, by SEB banka and S and T, that Article 84 of the Latvian Law on
consumer rights protection constitutes a limitation of the right to property and a difference in treatment which is not provided for by law. (6) They allege that that article
of the Law on consumer rights protection was not properly enacted, as the Latvian Parliament purportedly failed to consult the ECB about the scheme contained in the law at an appropriate stage during the legislative process. SEB banka and S and T claim that there has been
an infringement of the relevant provisions of primary and secondary EU law: Article 127(4) and Article 282(5) TFEU, Article 4 of Protocol (No 4) on the Statute of the European System of Central Banks and of the European Central Bank (‘the ESCB and ECB Statute’) and Article 2(1) and Article 4 of Decision 98/415.
23.      Since the legal basis of a limitation of the right to property and the difference in treatment has allegedly not been properly enacted, the referring court has turned to the Court of Justice. All three questions revolve around the national legislative process and the obligation to consult the ECB. They do not, however, concern the substantive question of whether the right to property has been infringed.
24.      The institution responsible for the law the constitutionality of which is called into question is the Latvian Parliament. That institution naturally plays an important part in the particular procedure of the present case, which is the assessment of compliance with the Constitution.
25.      As a national constitutional court carrying out a constitutional review, the referring court seeks to determine not only whether provisions of EU law have been infringed by the Latvian Parliament (question 1), but also, if so, what the legal consequences of such an infringement are (question 2). As a constitutional court, the referring court has the power to declare a provision of national law unconstitutional, although the exercise of that power turns on what legal consequences stemming from EU law, if any, there may be. It is only if the obligation arising from EU law is that (regular) national courts are to disapply the contested law that the referring court could declare that
law
to be unconstitutional.
This
is why, in question 2, the referring court seeks to ascertain whether a national court must decline to apply the provisions of a national law adopted in breach of EU procedural law provisions.
B.      The first question
26.      By the first question, the referring court seeks,
in essence, to ascertain whether, in a situation falling within the ECB’s ‘fields of competence’, Article 127(4) TFEU and Article 4 of Decision 98/415 must be interpreted as meaning that the obligation to consult the ECB on a draft legislative provision under those provisions is fulfilled in a situation where the parliament of a Member State adopts a law before receiving the opinion of the ECB, where there is a national procedure under which
that
law may be the subject of a second examination in parliament before it is enacted and enters into force.
27.      In order to provide the Court with a proposed answer to this question, I should first like to explain the procedure on the consultation of the ECB in national legislative procedures, before analysing whether that procedure has been complied with in the present case.
1.      The obligation to consult the ECB under inter alia Article 127(4) TFEU
28.      The
ECB is one of the European Union’s seven institutions, (7) and the principal provisions relating to it are set out in the FEU Treaty and the ESCB and ECB Statute. To that end, Article 127(1) TFEU establishes that the primary objective of the ESCB is to maintain price
stability and that, without prejudice to that objective, it is to
support the general
economic policies in the Union with a view to contributing to the achievement of the
objectives of the Union as laid down in Article 3 TEU. Article 127(2) TFEU
provides that the ESCB’s basic tasks are to be to: define and implement the monetary policy of the Union; conduct foreign-exchange operations; (8) hold and manage the official foreign reserves of the Member States; and promote the smooth operation of payment systems.
29.      Three provisions
of primary law, which are almost identically worded, (9) provide for mandatory consultation of the ECB on proposed Union acts and national draft legislative provisions: Article 127(4) TFEU; Article 4 of the ESCB and ECB
Statute; and Article 282(5) TFEU.
In addition, a provision of secondary law lays down further details on that consultation procedure:
Article 4 of Decision 98/415.
(a)    Article 127(4) TFEU: general procedure and rationale
30.      Article 127(4) TFEU provides for a mandatory (10) consultation of the ECB on any proposed Union acts (11) and by national authorities regarding any draft legislative provision (12) in its fields of competence. As regards specifically consultation by national authorities, it is specified that this must take place within the limits and under the conditions set out by the Council in accordance with the procedure laid down in Article 129(4) TFEU. Article 4 of the ESCB and ECB
Statute, headed ‘Advisory functions’, reproduces Article 127(4) TFEU,
using
identical wording. In a similar vein, Article 282(5) TFEU provides that, within the areas falling within its responsibilities, the ECB is to be consulted on all proposed Union acts, and all proposals for regulation at national level, and may give an opinion. I understand Article 282(5) TFEU to be declaratory in nature, in so far as it merely reiterates, albeit imperfectly, (13) what is already provided for in Article 127(4) TFEU. (14) Consequently, as regards primary law, I shall henceforth be referring to Article 127(4) TFEU only.
31.      The rationale for the mandatory consultation both by the EU institutions and by national authorities is twofold: it serves to ensure (i) that the expertise of the ECB is taken into account in relevant EU and national legislation and (ii) that the ECB is informed at an early stage of any changes in the legal situation that affect it. (15) The legislature is to benefit from the ECB’s high degree of expertise, (16) which serves to enhance the quality of legislation as a whole. (17)
32.      In addition and in a broader context, I also understand Article 127(4) TFEU as implying that
it serves to protect the prerogatives and competences of the ECB. The ECB must be put in a position where it can make sure that its competences are not compromised. This is why the ECB has a genuine right to be consulted, the corollary of which is an obligation of the EU and national legislature to consult.
33.      On the basis of
what is now the second indent of Article 127(4)
TFEU, the Council, by way of Decision, sets out the limits and conditions of the ECB’s right of consultation.
(b)    Decision 98/415: details concerning procedure
34.      Decision 98/415 prescribes the following with regard to the procedure to be followed.
35.      First, as Member States are under a general obligation to ensure effective compliance with Decision 98/415, they are to ensure that the ECB is consulted at an appropriate stage enabling the authority initiating the draft legislative provision to take into consideration the ECB’s opinion before taking its decision on the substance. The opinion of the ECB must be brought to the knowledge of the adopting authority if the latter is an authority other than that which has prepared the legislative provisions concerned. (18)
36.      In that connection, I note that Decision 98/415 draws a clear distinction between the authority initiating the draft legislative provision and the one adopting the legislative provision. Such a distinction follows the logic present in any (national) legislative procedure. While it goes without saying that the general organisation of legislative procedures in the context of the decision is governed by national constitutional law and that national procedures may vary considerably, it can be stated that a distinction between an initiating and an adopting authority is always drawn. As a matter of fact, legal systems typically, in one form or another,
draw
a distinction between the authorities initiating (19) and those adopting (20) legislation. (21)
37.      I infer from Article 4 of Decision 98/415 that the consultation of the ECB is to take place at the earliest possible stage in the legislative procedure, that is to say, at the moment when
the authority initiating the draft legislation has prepared a first draft, which is then forwarded to the authority adopting legislation, typically for a first reading.
This best enables the ECB, through its opinion, meaningfully to influence the national legislative process.
38.      Secondly, the ECB is obliged immediately on receipt of any draft legislative provision to notify the consulting authority whether, in its opinion, such a provision is within its field of competence. (22)
39.      Thirdly, the authorities of the Member States preparing a legislative provision may, if they consider it necessary, set the ECB a time limit for the submission of its opinion which may not be less than one month from the date on which the President of the ECB receives notification to that effect. (23) In cases of extreme urgency, the time limit may be reduced, in which case the consulting authority is to state the reasons for the urgency. (24) The ECB may request in due time an extension of the time limit for up to an additional four weeks; that request may not be unreasonably declined by the consulting authority. (25) Upon expiry of the time limit, the absence of an opinion does not prevent further action by the consulting national authority; should the ECB opinion be received after the time limit, Member States must, nevertheless, ensure that it is brought to the knowledge of the national authorities. (26)
(c)    The ECB’s ‘fields of competence’
40.      As has been established, the obligation to consult the ECB is triggered by the subject matter at issue. The starting point for defining the ECB’s ‘fields of competence’ is Article 127(1) and (2) TFEU, as well as Articles 3 to 12 of the ESCB and ECB Statute. Under Article 127(1) TFEU, the ‘primary objective’ of the ESCB is to maintain price stability. Without prejudice to that objective, the ESCB is to support the general economic policies in the Union. Article 127(2) TFEU defines the ‘basic tasks’ of the ESCB as defining and implementing the monetary policy of the Union; conducting foreign-exchange operations; holding and managing the official foreign reserves of the Member States; and promoting the smooth operation of payment systems.
41.      Moreover, Article 2(1) of Decision 98/415 defines the fields of competence pertaining to the ECB as being, in particular, currency matters (first indent), means of payment (second indent), national central banks (third indent), the collection, compilation and distribution of monetary, financial, banking, payment systems and balance of payments statistics (fourth indent), payment and settlement systems (fifth indent) and rules applicable to financial institutions in so far as they materially influence the stability of financial institutions and markets (sixth indent).
2.      The present case: the obligation to consult is not fulfilled
42.      It will be for the referring court to apply the proposed interpretation of the legal provisions at issue to the case before it. However, based on the information submitted in the order for reference and during the procedure before the Court, I can safely make the following assumptions in guiding the referring court in this exercise.
43.      First, it should be stressed that the question whether Article 84 of the Law on consumer rights protection falls within the fields of competence of the ECB is not in dispute in the national proceedings. The Latvian Parliament does not question that it was under an obligation to consult the ECB. (27)
44.      Secondly, it was inter alia clarified during the hearing, notably by the Latvian Government, that, under Latvian constitutional law, the Budget Committee is the authority preparing legislative provisions under Article 3(1) of Decision 98/415.
45.      Thirdly, the Budget Committee failed to comply with Article 4 of Decision 98/415, which obliges the Member States to take the measures necessary to ensure effective compliance with that decision. Indeed, the Budget Committee did not, as required by the second sentence of Article 4 of Decision 98/415, ensure that the ECB was consulted ‘at an appropriate stage enabling the authority initiating the draft legislative provision to take into consideration the ECB’s opinion before taking its decision on the substance’.
Nor did the Budget Committee set a time limit for the submission of the ECB opinion, thereby failing to comply with the spirit of Article 3 of Decision 98/415.
46.      I can accordingly conclude at this stage that the Budget Committee failed to comply with Article 4 of Decision 98/415.
47.      The referring court
seeks, in essence, to ascertain whether such a breach is irrelevant or whether it can be remedied in a situation such as the one in the present case, that is to say, where there is a procedure under which
that law may be the subject of a second examination in parliament before it is enacted and enters into force. In a similar vein, the Latvian Government contends that the obligation to consult the ECB was fulfilled, given that the President could have decided to refer the law back for reconsideration, but opted not to do so.
48.      I should like to recall that, indeed, under Latvian constitutional law, the President, who formally proclaims laws following their adoption in Parliament in order for them to enter into force, may, within a period of 10 days of
the adoption of a law by the Latvian Parliament, request by reasoned letter addressed to the Parliamentary Speaker that the law in question undergo a second examination. If, however, the Latvian Parliament does not amend that law, the President may not raise objections a second time. (28)
49.      It is my contention that, in abstracto, the constitutional provision just described cannot be such as to remedy an infringement of the duty to consult the ECB during the legislative process. Article 127(4) TFEU obliges national authorities to consult the ECB on any draft legislative provision in its fields of competence. I have argued above that the consultation must take place at the earliest possible stage, that is to say, when the draft is first submitted to the Latvian Parliament. But even on a less stringent reading of Article 127(4) TFEU, I would find it impossible to conceive that a legislative provision would still constitute a draft once it has been finally adopted by the Latvian Parliament. In other words, once the text has, figuratively speaking, left Parliament in order to be proclaimed by the President, the law is no longer a ‘draft legislative provision’ within the meaning of the second indent of Article 127(4) TFEU and Article 1 of Decision 98/415. If the ECB has not been consulted by the time the Latvian Parliament has adopted a law, then those provisions have been infringed.
50.      In my understanding, one no longer refers to a ‘draft’ once the act has been formally adopted by the competent legislature,
even though it may not yet be promulgated or in force. I infer from Article 64 of the Latvian Constitution (29) that the legislature is the
Latvian Parliament and not the President.
51.      It follows, too, that in concreto in the present case, Article 127(4) TFEU and Decision 98/415 were not observed. It should be borne in mind that, having sent the draft law to the ECB only on 30 November 2023, ahead of its third and final reading, and without waiting for the ECB’s opinion, the Latvian Parliament adopted the contested law on its third reading. It then sent the law to the President for proclamation. The fact that, after having received the ECB opinion on 11 December 2023, the Parliamentary Budget Committee discussed that opinion, does not alter this finding. In fact, it demonstrates that it was (an entity of) the Parliament itself – and not the President – that re-examined an already adopted text. Nor does it take a great deal of imagination to assume that, as regards the timeline, the Latvian Parliament was under intense pressures as regards the timeline,
since it wanted the law to enter into force by the end of 2023.
3.      Proposed answer to the first question
52.      Procedural rules draw their legitimacy from their strict application. This ultimately serves the purpose of legal certainty and, more generally, the rule of law. On the basis of those considerations, I propose that the Court hold that there has been an infringement of the procedural provisions at issue in the present case.
53.      My proposed answer to the first question is thus that
Article 127(4) TFEU and Article 4 of Decision 98/415 must be interpreted as meaning that,
in a situation falling within the ECB’s ‘fields of competence’, the obligation to consult the ECB on a draft legislative provision under those provisions is not fulfilled in a situation where the parliament of a Member State adopts a law before receiving the opinion of the ECB, where there is a national procedure under which
that
law may be the subject of a second examination in parliament before it is enacted and enters into force.
C.      The second question
54.      By the second question, the referring court
seeks,
in essence,
to ascertain whether Article 127(4) TFEU and Article 4 of Decision
98/415
must be interpreted as meaning that a national court must disapply the provisions of a national law adopted in breach of those provisions.
55.      The second question thus concerns the consequences of a breach of the procedural requirement of the obligation to consult the ECB before the adoption of a national law, contained in Article 127(4) TFEU and Articles 3 and 4 of Decision 98/415.
56.      The principal peculiarity of the procedure of Article 127(4) TFEU is the involvement of an EU institution in a national legislative procedure. Accordingly, as I shall demonstrate, the case-law to date can offer us only partial guidance. It is my contention that it will be for the Court to come
up with a novel solution for the case at hand.
1.      The case-law to date
57.      I should like to recall,
briefly, first, the case-law on the infringement of the right to be consulted by an EU institution in an EU procedure before turning, secondly, to the classical case-law of the Court pertaining to legal consequences stemming from non-compliance with formal requirements prescribed by EU law, such as notification, by
Member States.
(a)    When an EU institution acts in breach of a procedural provision
58.      The principal legal question that arises
in this area is that of the consequences of non-consultation of the European Parliament in an EU legislative procedure. Here, the leading cases are those known as the ‘Isoglucose judgments’: (30) the judgments of the Court in Roquette Frères and in
Maizena. (31) They
were delivered during the first legislature in which the Parliament had been directly elected, and therefore at a time when its involvement in the EU decision-making process was restricted to a right of consultation. (32)
59.      In that case, the Council had adopted a regulation amending the common market organisation for isoglucose without waiting for the Parliament’s opinion, even though consultation under what was then Article 43(2) EEC (33) was required. The measure was challenged by the company SA Roquette Frères, a French isoglucose producer directly affected by the regulation fixing a production quota for it.
60.      In its seminal judgment, the Court annulled the regulation, holding that consultation of the Parliament, where required by the Treaty, is the means which allows the Parliament to play an actual part in the EU legislative process. (34) That power represents an essential factor in the institutional balance intended by the Treaty. (35)
61.      Consulting Parliament constitutes an
‘essential procedural requirement’ (36) within the meaning of what is now the second paragraph of Article 263 TFEU, ‘disregard of which means that the measure concerned is void’. (37) It is worth noting that the Court explicitly added that ‘observance of that requirement implies that the Parliament has expressed its opinion’ (38) and that ‘it is impossible to take the view that the requirement is satisfied by the Council’s simply asking for the opinion’, (39) if no opinion is given by the Parliament
afterwards. That formulation rejects a purely formal understanding of the consultation requirement and prevents the Council from treating a mere request as sufficient compliance where the Parliament has not in fact adopted an opinion.
62.      Consequently, the Court annulled the regulation in question.
63.      Thus, we can infer from the ruling that the Court declined to engage in an ex post assessment of whether the Parliament’s participation would have changed the substantive content of the measure adopted by the Council. The fact that the Parliament was not consulted was crucial, not the fact that its opinion would not have been binding anyway.
64.      In subsequent case-law, the Court has consistently followed the judgment in Roquette Frères. At the same time, it has stressed that interinstitutional dialogue, on which the consultation procedure in particular is based, is subject to the same mutual duties of sincere cooperation as those which govern relations between Member States and the EU
institutions. (40) Thus, in a situation where the Council requested the Parliament’s opinion, specifically asking for the urgent procedure, (41) and where the Parliament failed to respond within a reasonable time to the request for consultation, as it first decided to refer the proposal back to a committee and then adjourned the final vote in plenary, the Court held that the Parliament had infringed the duty of institutional cooperation and was therefore precluded from alleging that the Council adopted the measure without awaiting its opinion. (42) Consequently, it dismissed the action brought by the Parliament. (43)
65.      Lastly, I should like to stress that, to my knowledge, the Court has only annulled measures when it came to the right of consultation of the Parliament. It is true that there are also provisions in the FEU Treaty providing for mandatory consultation of other institutions or bodies, in their domains of expertise and competence, such as the Court of Auditors, (44) the European Economic and Social Committee (45) or the Committee of the Regions. (46) Yet, the case-law to date appears to reveal merely an obiter dictum of the Court where it is affirmed that what is now Article 156 TFEU (47) obliges the Commission to consult the European Economic and Social Committee. (48)
66.      To sum up this passage, where the Parliament was not consulted,
even though there was an obligation to do so, the Court annulled the measure in question
on the ground of infringement of an essential procedural requirement under the second paragraph of Article 263 TFEU.
(b)    When a national authority acts in breach of a procedural provision
67.      What happens when national authorities act in breach of an EU procedural provision? What are the consequences? Are there remedies available?
(1)    Case C‑380/87, Enichem Base
68.      The dispute arose when a
municipal mayor adopted a decision prohibiting the use of non-biodegradable plastic bags within the municipality. Enichem Base challenged that measure, arguing that the local law infringed
a provision of a then EEC directive, which required Member States to inform the Commission of draft rules regarding waste disposal.
69.      The Court held that the provision
at issue
of the directive required Member States to inform the Commission of any draft rules prior to adoption. (49) That requirement
was intended to ensure that the Commission was informed of any plans for national measures regarding waste disposal so that it could consider the necessity of harmonisation or examine whether the draft rules were compatible with EU law. (50) The Court went on to hold, however, that ‘neither the wording nor the purpose of the provision in question provides any support for the view that failure by the Member States to observe their obligation to give prior notice in itself renders unlawful the rules thus adopted.’ (51)
(2)    CIA Security International
70.      CIA Security International (52) concerned a Belgian royal decree laying down a system of approval for alarm systems and installers. That decree was a ‘technical regulation’ within the meaning of Directive 83/189, (53) and
the Kingdom of Belgium had failed to notify the draft to the Commission and had not respected the standstill period.
Articles 8 and 9 of Directive 83/189 required Member States to notify draft technical regulations to the Commission before adoption, subject to certain exceptions, and to postpone adoption for six months if a detailed opinion was issued within three months, or for twelve months if the Commission announced a harmonisation proposal. The question was whether a private party could rely on that failure in litigation, and what the implications were
for the unnotified measure.
71.      In order to answer that question, the Court carried out a two-step analysis: first, it held that Articles 8 and 9 of Directive 83/189 laid down a precise obligation on Member States to notify draft technical regulations before their adoption. It found that ‘being … unconditional and sufficiently precise in terms of their content, those articles
may be relied on by individuals before national courts.’ (54)
72.      Secondly,
the Court stated that it ‘remains to examine the legal consequences to be drawn from a breach by Member States of their obligation to notify and, more precisely, whether Directive 83/189 is to be interpreted as meaning that a breach of the obligation to notify, constituting a procedural defect in the adoption of the technical regulations concerned, renders such technical regulations inapplicable so that they may not be enforced against individuals’. (55)
73.      I note at this stage that the important term here is ‘whether’.
74.      The Court then rejected the argument that Directive 83/189 was solely concerned with relations between the Member States and the Commission, that it merely created procedural obligations which the Member States had to observe when adopting technical regulations, their competence to adopt the regulations in question after expiry of the suspension period, however, being unaffected, and that it contained no express provision relating to any effects attaching to non-compliance with those procedural obligations. (56)
75.      The Court observed that no express provision relating to such effects was required and that it was ‘undisputed that the aim of the directive is to protect freedom of movement for goods by means of preventive control and that the obligation to notify is essential for achieving such Community control. The effectiveness of Community control will be that much greater if the directive is interpreted as meaning that breach of the obligation to notify constitutes a substantial procedural defect such as to render the technical regulations in question inapplicable to individuals.’ (57)
76.      The Court then went on to distinguish the case before it
from the judgment  in
Enichem Base, holding that its interpretation was ‘in accordance’ (58) with the earlier judgment, before going on to conclude that a
national technical regulation which should have been notified, but was not,
was inapplicable and unenforceable against individuals. (59)
77.      Subsequent case‑law has consistently reiterated that failure to notify (or comply with a standstill requirement) is a substantial procedural defect which renders the national technical regulation inapplicable to individuals. (60)
78.      At this juncture, I should, for the sake of clarity in terminology, like to address the issue of ‘direct effect’. The case-law described above has its origins in the question under which circumstances the provisions of a directive, that is to say, an act of secondary law, (61) which contain obligations for Member States,
can have direct effect with horizontal implications, that is to say, in a dispute between two private parties. (62) In addition, the Court has explicitly clarified that direct effect is a precondition for national courts’ duty to disapply provisions conflicting with EU law. (63)
79.      The Court has also clarified that in a vertical conflict between an economic operator and a Member State, the individual can rely on EU law to have
the national measure disapplied. (64) I understand this to be a confirmation of the fact that the inapplicability of a national provision is the consequence of a procedural defect (in casu lack of notification) and not of the nature of the dispute (between individuals or between an authority and an individual). Consequently, the nature of the present dispute (constitutional review) is not the determining factor in the present case.
80.      Lastly, while the analysis in the present Opinion has focused on the decentralised application and enforcement of EU law, for the sake of completeness it should be noted
that there is of course the possibility for the Commission (65) or a Member State (66) to institute infringement proceedings against the Member State whose national authority is alleged to have been in breach of the procedural provision. The present Opinion is not the place to recall all the well-known features of the infringement procedure. Suffice it to mention that the Commission has almost unfettered discretion in deciding whether to bring or maintain proceedings, at both the pre-litigation and litigation stages,
and that, if the Commission is ultimately successful, there is a declaratory judgment of the Court obliging the Member State to remedy the situation. This is a constitutional procedure involving public entities and in which the rights of individuals or any other private parties are not directly at issue.
2.      The present case: is there an obligation to disapply the contested law?
(a)    Arguments in favour
81.      The ECB and SEB banka essentially propose applying the judgment in CIA Security International to the present case.
82.      The ECB argues that failure by national authorities to consult it on draft regulations in its fields of competence, as required by Article 127(4) TFEU and Article 4 of Decision 98/415, constitutes a substantial procedural defect rendering those national provisions inapplicable. It equates that breach with
a ‘substantial procedural defect’ under the Court’s case-law, which makes national measures inapplicable to individuals. (67) In that connection, the ECB draws a parallel with
the judgment in CIA Security International, under which
failing to notify laws to the Commission (68) leads to the inapplicability of those laws. The ECB argues that consultation of the ECB, being a Treaty-based duty, a fortiori must have even stronger effects than the obligation to notify technical regulations. In particular, the ECB submits that the obligation to consult meets the test for being a ‘substantial formality’, as it provides safeguards of prudence, allows ECB expertise to influence content, and enhances legislative quality in monetary and banking matters. On a broader scale, the ECB points to the principle
of sincere cooperation under Article 4(3) TEU, in that the interpretation proposed respects the European Union’s exclusive monetary policy competence and prevents measures that undermine the ECB functions or systemic financial stability.
83.      In a similar vein, SEB banka argues that breach of the consultation obligation under Article 127(4) TFEU and Article 4 of Decision 98/415 amounts to a substantial procedural defect, rendering the Latvian national provisions inapplicable.
Referring to the judgment in CIA Security International, SEB banka also stresses the importance of the principle of sincere cooperation under Article 4(3) TEU.
84.      It is furthermore argued, notably in legal doctrine, that if a procedural infringement can have an impact even in a legal dispute between private individuals, it must be all the more significant when the Member State that has committed the infringement of EU law wishes to invoke the legislation in question against an individual concerned. (69)
85.      The consequence of such reasoning would be that Article 84
of the Law on consumer rights protection should be disapplied by national courts.
(b)    Arguments against
86.      It is indeed tempting to draw parallels
with the judgment in CIA Security International.
However, it is my view that that judgment should not be applied by analogy, because the reasoning described above does not sufficiently take into account the entire judgment in CIA Security International: if we apply the two-step reasoning of the Court described above to the present case, we will see that only the first step is fulfilled.
87.      It would indeed be difficult to argue that the obligations laid down in Article 127(4) TFEU und Article 4 of Decision 98/415 are not sufficiently precise and unconditional. As has been discussed, there is the clear obligation to consult the ECB, which, in turn, constitutes a right for that institution. Nevertheless, the second step, that is to say, the legal consequences following
therefrom,
is far less clear. As has been discussed above, the Court’s reasoning in that case was guided by the fact that the provisions at issue in CIA Security International
were a means of preventive control in the area of free movement of goods.
88.      Ensuring preventive control in an area which, forming part of the internal market, (70) concerns a core area of EU policy and by definition hinges on a smooth operation through the action and interaction of economic operators who, in order for that market to work, need to be able to assert their rights, in particular against Member States creating obstacles to trade, is, in my contention, quite another thing from a procedural provision which serves to improve and legitimise a national legislative procedure in a field of ECB competence.
89.      In other words, in a situation falling within the scope of Directive 83/189 at issue in
the case giving rise to the judgment in
CIA Security International, Member States are, in principle, allowed to legislate. They must only notify draft legislation to the Commission so as to allow that institution to identify potential obstacles to intra-EU trade and possibly ask the Member States to amend draft provisions. However, the competence to legislate remains with the Member States. The Commission’s competence is not at issue. What
does happen is merely that, in an area of shared competence, the Commission will seek to calibrate EU interests (the internal market) with potentially conflicting national ones (protection of an overriding reason relating to the public interest). By contrast, as articulated above, the obligation to consult the ECB under Article 127(4) TFEU serves to protect the ECB’s prerogatives and competences.
90.      Moreover, the nature of the consultation in the context of a technical notification differs from that in the context of a national law falling within the scope of Article 127(4) TFEU. When the Commission examines a draft provision under a notification directive, it evaluates the content of the envisaged measure with a view to establishing the legality of that measure under EU law. (71) The Commission assesses the substance of a draft measure in order to ascertain whether it is compatible with the fundamental freedom of the free movement of goods. As a result, if the Commission’s advice is not followed, the draft measure is potentially not compatible with a material provision of the Treaty.
91.      By contrast, in the consultation under Article 127(4) TFEU, the ECB issues an opinion on the economic merits. It does not assess whether the national measure in question is legal or not. This implies that a draft national measure cannot be potentially incompatible with a material provision of the Treaty as a result of the consultation with the ECB. It does not matter whether the ECB’s advice is followed. All that counts is that the ECB has been consulted.
92.      It is therefore my contention that it is not enough that both the ‘CIA Security International
situation’ and the present case have in common the issue of the consequences of a breach of the obligation to involve an EU institution in the process of the adoption of national norms
in order to hold, as the ECB and SEB banka do, that CIA Security International
should be applied a fortiori
given that the obligation to consult the ECB stems from primary law, whereas the obligation to notify the Commission stems from a lower-ranking source of law in the form of a directive. What matters is not the formal source of the obligation, but the purpose which that obligation serves.
(c)    Conclusion
93.      In conclusion, I believe that the ECB’s and SEB banka’s line of argument should not be upheld. For the reasons set out above, I consider that the substantial procedural defect does not have the effect of rendering the national provisions inapplicable.
94.      To summarise, as EU law currently stands concerning remedies, the situation is as follows: as regards the EU legislature, measures adopted in breach of the first indent of Article 127(4) TFEU can, potentially, be annulled by the Court of Justice. By contrast, national measures adopted in breach of the second indent of Article 127(4) TFEU cannot be challenged before the Court. The only direct remedy available is for the Commission (or another Member State) to bring infringement proceedings against the allegedly offending Member State. In the event that such proceedings are successful, ‘all’ there is in the end is a declaratory judgment of the Court obliging the Member State in question to remedy the situation. Under the distribution of competences between the European Union and the Member State, the Court has no power to annul national law.
95.      I can conclude at the present juncture that the case-law hitherto analysed is not a perfect fit for the present case. The Roquette Frères option is limited to central EU legislative procedures, whilst the CIA Security International
option, enticing as it may seem at first sight, is still not quite apt, inasmuch as it provides the solution for a very different problem. In my view, therefore, neither Roquette Frères nor CIA Security International
helps to resolve the case at hand.
96.      My proposed answer to the second question is, accordingly, that Article 127(4) TFEU and Article 4 of Decision
98/415 must not be interpreted as meaning that a national court must disapply the provisions of a national law adopted in breach of those provisions.
3.      Other possible remedies
97.      The finding which has just been made does not, however, imply that the referring court cannot annul the contested law.
98.      It is clear that
the Court cannot annul a measure taken by national authorities, for the simple reason that no such competence has been conferred on it by the Treaties. (72) The referring court must, however,
ensure, within its competences and mandate, that the ECB’s right of consultation is safeguarded in national proceedings.
99.      It is of course for Member States to organise their judicial systems. The competence to determine which court has jurisdiction to review national legislation and rule on the legality of an act of national law lies with the Member States.
However, the ECB’s right of consultation under Article 127(4) TFEU and Article 4 of Decision 98/415 must be protected in procedures such as the present one, where national law confers
jurisdiction on the relevant national court to review national legislation.
The protection of that right must be ensured at national level, given that the context involves national legislative procedure. Viewed from this perspective, it is for the Member States, in casu the Republic of Latvia, to provide for remedies and procedures to protect such a right. In this connection, I borrow the terminology of Walter Van Gerven, who stated that ‘the concept of right refers … to a legal position which a person … may have … and which in its normal state can be enforced by that person against … others before a court of law by means of one or more remedies, those are classes of action, intended to make good infringements of the rights concerned, in accordance with procedures governing the exercise of such classes of action and intended to make the remedy concerned operational.’ (73)
100. The referring court must thus explore all procedural possibilities, including
granting the ECB (active) standing when it comes to the implementation of the second indent of Article 127(4) TFEU. This would allow the ECB to assert its rights in the national procedure. Alternatively, the referring court should explore the possibility for the ECB to intervene in national proceedings, such as those in the main proceedings, when the legality of a national act falling within the scope of Article 127(4) TFEU is at issue.
D.      The third question
101. By its third question, the referring court seeks to ascertain whether the principles of the primacy of EU law and legal certainty are to be interpreted as meaning that the Latvijas Republikas Satversmes tiesa (Constitutional Court) may decide in the judgment it gives that the legal effects of the contested provisions must be maintained during the period for which they were in force.
102. In other words, the third question is about whether the Latvijas Republikas Satversmes tiesa (Constitutional Court) is allowed, under EU law, to make it possible for a national law that was adopted in breach of EU law to keep producing its legal effects for the whole period during which it was in force, even though that law is incompatible with EU law.
103. Based on my proposed answer to the second question, there is no need to address the third question. The analysis which follows is therefore put forward to be considered in the event that the Court comes to a different conclusion in respect of the second question.
104. According to settled case-law, the interpretation which, in the exercise of the jurisdiction conferred on it by Article 267 TFEU, the Court gives to a rule of EU law clarifies and defines the meaning and scope of that rule as it must be or ought to have been understood and applied from the date of its entry into force. (74) It follows that the rule thus interpreted may, and must, be applied by the courts to legal relationships which arose and were established before the judgment ruling on the request for interpretation, provided that in other respects the conditions for bringing a dispute relating to the application of that rule before the courts having jurisdiction are satisfied. (75) It is only quite exceptionally
that the Court itself may, in application of the general principle of legal certainty inherent in the EU legal order, be moved to restrict for any person concerned the opportunity of relying on a provision which it has interpreted with a view to calling into question legal relationships established in good faith. (76)
105. In any event, it is solely the Court which could determine the conditions of a possible suspension (77) and this is for good reason: otherwise, a national court could defer the effects of that decision, thereby affecting its erga omnes character, the primary objective of which is to ensure the uniform application of EU law and legal certainty in all Member States and create a level playing
field for Member States, citizens and economic operators. In that connection, rules of national law, even of a constitutional order, cannot be allowed to undermine the unity and effectiveness of EU law. (78)
106. Two essential criteria must be fulfilled before such a limitation can be imposed, namely that those concerned must
have acted in good faith and that there must
be a risk of serious difficulties. (79)
107. It should be added that it is only exceptionally (80) that the Court has opted for
such a solution and then
only in quite specific circumstances: where there was a risk of serious economic repercussions owing in particular to the large number of legal relationships entered into in good faith on the basis of rules considered to be validly in force and where it appeared that individuals and national authorities had been led to adopt practices which did not comply with EU law by reason of objective, significant uncertainty regarding the implications of EU provisions, to which the conduct of other Member States or the European Union may even have contributed. (81)
108. As regards the present case, I doubt that, in a situation where that legislation were to be declared inapplicable, there would be compelling reasons of legal certainty or public interest that could justify its retention. The budgetary difficulties cited by the referring court, linked to that inapplicability, which would imply that, where applicable, the total amount of approximately EUR 97 million paid into the State budget by credit institutions would have to be reimbursed, do not, in my view, suffice to constitute such reasons.
109. As for the criterion of good faith, based on the analysis of the first question in the present Opinion, I do not see how Article 127(4) TFEU and Article 4 of Decision 98/415 could reasonably be interpreted as authorising a national parliament to adopt legislative measures before the ECB has submitted its opinion or the time limit for doing so has expired, given the clear wording of those provisions.
110. Lastly, regarding the criterion of the risk of serious difficulties, while it is true that it is apparent from the order for reference that a large number of legal relationships have been entered into on the basis of the national provisions at issue in the main proceedings, the existence of a risk of serious disruption does not, in my view, appear to have been prima facie demonstrated, should the Court find those provisions to be inapplicable. The economic grounds put forward by the referring court – namely that a judgment declaring the disputed legislative provisions null and void as of their adoption would be likely to have a significant impact on the budgetary interests of the Republic of Latvia – do not, in my view, suffice to establish the existence of a real risk of serious economic consequences for that Member State.
111. Lastly, it should be borne in mind, as the ECB convincingly argues, that the risk of financial losses that mortgage borrowers might suffer in Latvia as a result of a decision to that effect by the Court appears to be limited. If credit institutions and capital companies authorised to grant loans to their customers were to demand repayment from mortgage borrowers in Latvia, those mortgage borrowers could possibly bring actions for damages against that Member State to protect their rights.
112. Consequently, my proposed answer to the third question is that the principles of the primacy of EU law and legal certainty must not be interpreted as meaning that the Latvijas Republikas Satversmes tiesa (Constitutional Court) may decide in the judgment it gives that the legal effects of the contested provisions must be maintained during the period for which they were in force.
V.      Conclusion
113. In the light of the foregoing, I propose that the Court answer the questions referred by the Latvijas Republikas Satversmes tiesa (Constitutional Court, Latvia) as follows:
(1)      Article 127(4) TFEU and Article 4 of Council Decision 98/415/EC
of 29 June 1998 on the consultation of the European Central Bank by national authorities regarding draft legislative provisions
must be interpreted as meaning that in a situation falling within the European Central Bank’s ‘fields of competence’, the obligation to consult the European Central Bank on a draft legislative provision under those provisions is not fulfilled in a situation where the parliament of a Member State adopts a law before receiving the opinion of the European Central Bank, where there is a national procedure under which
that
law may be the subject of a second examination in parliament before it is enacted and enters into force.
(2)      Article 127(4) TFEU and Article 4 of Decision 98/415
must
not be interpreted as meaning that a national court must disapply the provisions of a national law adopted in breach of those provisions.
(3)      The principles of the primacy of EU law and legal certainty
must not be interpreted as meaning that the Latvijas Republikas Satversmes tiesa (Constitutional Court) may decide in the judgment it gives that the legal effects of the contested provisions must be maintained during the period for which they were in force.
1      Original language: English.
2      OJ 1998 L 189, p. 42.
3      Latvijas Vēstnesis, 1993, No 43; Latvijas Republikas Saeimas un Ministru Kabineta Ziņotājs, 1994, No 6; Valdības Vēstnesis, 1922, No 141; and Diena, 1993, No 81.
4      Latvijas Vēstnesis, 1994, No 96 and Latvijas Republikas Saeimas un Ministru Kabineta Ziņotājs, 1994, No 17.
5      Latvijas Vēstnesis, 1999, No 104/105 and Latvijas Republikas Saeimas un Ministru Kabineta Ziņotājs, 1999, No 9.
6      See paragraph 11 of the request for a preliminary ruling.
7      See Article 13(1) TEU.
8      Similar wording is used in Article 219 TFEU.
9      At least with respect to the English, French and German language versions.
10      As can be inferred from the use of the term ‘shall’.
11      First indent of Article 127(4) TFEU.
12      Second indent of Article 127(4) TFEU.
13      Imperfectly because the term ‘responsibilities’ is legally less precise than the wording ‘fields of competence’. The opposing view claims that ‘responsibilities’ (Article 282(5) TFEU) typically puts into concrete terms ‘fields of competence’ (Article 127(4) TFEU), which is why the former term is purportedly more precise than the latter. However, even such voices do not draw any legal conclusions from this semantic finding as to the relationship between the two provisions. See Manger-Nestler, C., in Pechstein, M., Nowak, C. and Häde, U. (eds), Frankfurter Kommentar zu EUV, GRC und AEUV, 2nd edition, Vol. IV, Mohr Siebeck, Tübingen, 2023, Art. 282 AEUV, point 17.
This terminological difference is not reflected in the Latvian version of those provisions.
14      See also, to that effect,
Häde, U., in Calliess, C. and
Ruffert, M. (eds), EUV/AEUV Kommentar, C.H. Beck, Munich, 6th
edition, 2022, Art. 282 AEUV, point 49.
15      See also, to that effect,
Kempen, B., in Streinz, R. (ed.), EUV/AEUV Kommentar, C.H. Beck, Munich, 3rd
edition, 2018, Art. 127 AEUV, point 24.
16      See
judgment of 10 July 2003, Commission
v ECB (C‑11/00, EU:C:2003:395, paragraph 110). Elsewhere, although not in the context of the obligation to consult under Article 127(4) TFEU, the Court has referred to the economic expertise of the ECB: see judgment of 16 June 2015, Gauweiler and Others (C‑62/14, EU:C:2015:400, paragraph 75).
17      See,
to that effect, with respect to the EU legislature, Opinion of Advocate General Jacobs in Commission
v ECB (C‑11/00, EU:C:2002:556, point 140), who also points to the ECB’s particular knowledge or expertise, in particular, in monetary policy and stresses that the involvement of the ECB under Article 127(4) TFEU seeks to enhance the quality of EU legislation to the advantage of the European polity as a whole.
18      See Article 4 of Decision 98/415.
19      By way of example, the situation is as follows in a few selected countries – Poland: under Article 118 of the Polish Constitution, the power to initiate legislation belongs to Members of Parliament, the Senate, the President of the Republic and the Council of Ministers (paragraph 1), as well as to a group of at least 100 000 citizens who have the right to vote, the procedure for such a citizens’ initiative being defined by law (paragraph 2); France: under Article 39 of the French Constitution, the power to initiate laws is shared jointly by the Prime Minister and the Members of Parliament. Germany: under the Basic Law, the right of legislative initiative for federal laws belongs to the Bundesregierung (Federal Government), the Bundesrat (Federal Council) and the Bundestag (Federal Parliament) ‘from its midst’, that is to say, via a parliamentary group or at least 5% of its Members; Portugal: under Article 167(1) of the Portuguese Constitution, the initiative for legislation and referenda lies with Members of Parliament, parliamentary groups and the Government, and also, under the terms and conditions established by law, with groups of eligible voters.
20      To take the same selected countries from the previous footnote – Poland: the Sejm (Parliament) adopts laws (Article 120 of the Polish Constitution) and the Senate approves, amends or rejects them (Article 121(2) of the Polish Constitution); France: both assemblies of the Parliament, that is to say, the National Assembly and the Senate (Article 45 of the French Constitution) adopt laws, with the President of the Republic proclaiming laws (Article 10 of the French Constitution); Germany: as per Articles 76 and 77 of the Basic Law, primarily the Federal Parliament, although with the Federal Council having to consent in certain cases specified by the Basic Law. Moreover, under Article 82 of the Basic Law, in all cases the Bundespräsident (Federal President) participates in so far as a law can only enter into force once it has been signed and proclaimed by the Federal President; Portugal: depending on the type of law adopted, either the Parliament (Article 168 of the Portuguese Constitution) or the Council of Ministers (Article 198(1) and Article 200(1)(d) of the Portuguese Constitution). In both cases, the President of the Republic proclaims laws (Article 136(1) and (4) of the Portuguese Constitution).
21      Needless to say, the same holds true for the European Union where, typically, the Commission proposes, and the
European Parliament and the Council of the European Union adopt, secondary legislation via the ordinary legislative procedure under Article 294 TFEU.
22      See Article 2(3) of Decision 98/415.
23      See Article 3(1) of Decision 98/415.
24      See Article 3(2) of Decision 98/415.
25      See Article 3(3) of Decision 98/415.
26      See Article 3(4) of Decision 98/415.
27      See paragraph 5 of the request for a preliminary ruling.
28      See Article 71 of the Constitution.
29      Under that provision, the Latvian Parliament and also the people have the right to legislate, in accordance with the procedures, and to the extent, provided for by that
constitution.
30      In the past the Court has, at times, referred to the two judgments as such. See, by way of example, judgment of 30 March 1995, Parliament
v Council (C‑65/93, EU:C:1995:91, paragraph 21 et seq.).
31      See judgments of 29 October 1980, Roquette Frères v Council (138/79, EU:C:1980:249) (‘the judgment in Roquette Frères’) and Maizena v Council (139/79, EU:C:1980:250) Since the judgments contain identical findings, for the purposes of the analysis in the present Opinion and for ease of reference I shall be referring to the judgment in
Roquette Frères only.
32      As is well known, it was only with the Single European Act (entry into force: 1 July 1987) that the Parliament participated in the legislative process by way of the cooperation procedure and only with the Maastricht Treaty (entry into force: 1 November 1993) that the co-decision mechanism was introduced, initially in what could be described as a ‘homeopathic dose’. The mechanism was gradually extended with the Treaties of Amsterdam (entry into force: 1 May 1999) and Nice (entry into force: 1 February 2003), to culminate in the law as it stands with the Treaty of Lisbon (entry into force: 1 December 2009) in the form of the ordinary legislative procedure under Article 294 TFEU.
33      Now Article 43(2) TFEU.
34      See judgment of 29 October 1980, Roquette Frères
v Council (138/79, EU:C:1980:249, paragraph 33).
35      Ibid.
36      See judgment of 29 October 1980, Roquette Frères
v Council (138/79, EU:C:1980:249, paragraph 35). The English-language version of the judgment moreover refers, in paragraph 33, to ‘essential formality’, which I understand to mean the same thing.
37      See judgment of 29 October 1980, Roquette Frères
v Council (138/79, EU:C:1980:249, paragraph 33). See also Opinion of Advocate General Reischl in Roquette Frères
v Council (138/79, EU:C:1980:213, p. 3375), according to which the Parliament’s consultative power ‘may not be rendered practically ineffective by being completely precluded without any legal consequences’.
38      See judgment of 29 October 1980, Roquette Frères
v Council (138/79, EU:C:1980:249, paragraph 34). Emphasis added.
39      Ibid.
40      See judgments of 10 February 1983, Luxembourg
v Parliament (230/81, EU:C:1983:32, paragraph 38); of 27 September 1988, Greece
v Council (204/86, EU:C:1988:450, paragraph 16); and of 30 March 1995, Parliament
v Council (C‑65/93, EU:C:1995:91, paragraph 23).
41      Pursuant to what was then Article 75 of the Parliament’s Rules of Procedure.
42      See judgment of 30 March 1995, Parliament
v Council (C‑65/93, EU:C:1995:91, paragraphs 27 and 28).
43      Notably, the Court held that, by adopting the course of action it did, the Parliament had failed to discharge its obligation to cooperate sincerely with the Council. The essential procedural requirement of Parliamentary consultation was not complied with because of the Parliament’s failure to discharge its obligation to cooperate sincerely with the Council. See judgment of 30 March 1995, Parliament
v Council (C‑65/93, EU:C:1995:91, paragraph 28 et seq.).
44      See Article 322(1) and (2) TFEU.
45      See the first paragraph of Article 304 TFEU, in combination with other TFEU provisions, such as Article 43(2) TFEU. For a complete list, see Breuer, M., in Pechstein, M., Nowak, C. and Häde, U. (eds), Frankfurter Kommentar zu EUV, GRC und AEUV, 2nd edition, Vol. IV, Mohr Siebeck, Tübingen, 2023, Art. 304 AEUV, point 4.
46      See the first paragraph of Article 307 TFEU, in combination with other TFEU provisions, such as Article 91(1) TFEU. For a complete indicative list, see Breuer, M., in Pechstein, M., Nowak, C. and Häde, U. (eds), Frankfurter Kommentar zu EUV, GRC und AEUV, 2nd edition, Vol. IV, Mohr Siebeck, Tübingen, 2023, Art. 307 AEUV,
point 4.
47      Formerly Article 118 EEC.
48      See judgment of 9 July 1987, Germany and Others
v Commission (281/85, 283/85 to 285/85 and 287/85, EU:C:1987:351, paragraph 38 et seq.).
49      See judgment of 13 July 1989, Enichem Base and Others (380/87, ‘the judgment in Enichem Base’, EU:C:1989:318, paragraph 14).
50      See the judgment in Enichem Base
(paragraph 21).
51      See the judgment in Enichem Base (paragraph 22).
52      Judgment of 30 April 1996 (C‑194/94, ‘the judgment in CIA Security International
’, EU:C:1996:172).
53      Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1983 L 109, p. 8). This directive was subsequently replaced by Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1998 L 204, p. 37), which was in turn replaced by Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (codification) (OJ 2015 L 241, p. 1).
54      See the judgment in CIA Security International (paragraph 44).
55      See the judgment in CIA Security International (paragraph 45). Emphasis added.
56      That argument was
made by the Federal Republic of Germany, the Kingdom of the Netherlands and the United Kingdom of Great Britain and Northern Ireland. See the judgment in CIA Security International (paragraph 46).
57      See the judgment in CIA Security International (paragraph 48).
58      See the judgment in CIA Security International (paragraph 49).
59      See the judgment in CIA Security International (paragraph 54).
60      See, by way of example,
judgments of 26 September 2000, Unilever (C‑443/98, EU:C:2000:496, paragraph 49); of 6 June 2002, Sapod Audic (C‑159/00, EU:C:2002:343, paragraph 51); of 4 February 2016, Ince (C‑336/14, EU:C:2016:72, paragraph 67); of 27 October 2016, James Elliott Construction (C‑613/14, EU:C:2016:821, paragraph 64); of 1 February 2017, Município de Palmela (C‑144/16, EU:C:2017:76, paragraph 36); of 12 September 2019, VG Media (C‑299/17, EU:C:2019:716, paragraph 39); and of 13 March 2025, Unigames (C‑120/24, EU:C:2025:174, paragraph 62).
61      See the third paragraph of Article 288 TFEU.
62      It is from this angle that this case-law traditionally receives most (scholarly) attention. See, among many and by way of example, Dougan, M., ‘When worlds collide! Competing versions of the relationship between direct effect and supremacy’, in Common Market Law Review, Vol. 44, Issue 4, 2007, pp. 931 to 963, in particular pp. 957 to 963. See also Gallo, D., Direct Effect in EU Law, Oxford University Press, Oxford, 2025, p. 107 et seq.
63      See, to that effect,
judgment of 24 June 2019, Popławski (C‑573/17, EU:C:2019:530, paragraph 60 et seq.): ‘the principle of the primacy of EU law cannot have the effect of undermining the essential distinction between provisions of EU law which have direct effect and those which do not and, consequently, of creating a single set of rules for the application of all of the provisions of EU law by the national courts. … any national court, hearing a case within its jurisdiction, has, as an organ of a Member State, the obligation to disapply any provision of national law which is contrary to a provision of EU law with direct effect in the case pending before it’. See also judgment of 8 March 2022, Bezirkshauptmannschaft Hartberg-Fürstenfeld (Direct effect) (C‑205/20, EU:C:2022:168, paragraph 37).
64      See, by way of example, judgment of 9 March 2023, Vapo Atlantic (C‑604/21, EU:C:2023:175, paragraph 44), in which the Court held that a Portuguese rule requiring a 10% biofuel incorporation target for fuel released for consumption was a technical regulation under Directive 98/34 and, because its draft was not notified, it could not be enforced by the State against individuals.
65      See Article 258 TFEU.
66      See Article 259 TFEU.
67      This is in contrast to EU acts, which may be annulled under the first paragraph of Article 263 TFEU.
68      Under Directives 98/34 and 2015/1535.
69      See,
to that effect,
Häde, U., ‘Die Pflicht zur Anhörung der Europäischen Zentralbank nach Art. 105 Abs. 4 EGV’, in Gornig, G.H., Schöbener, B., Bausback, W. and
Irmscher, T.H. (eds), Iustitia et Pax. Gedächtnisschrift für Dieter Blumenwitz, Duncker & Humblot, Berlin, 2008, pp. 1027 to 1046, at p. 1041. See also Hahn, H.J. and
Häde, U., Währungsrecht, 2nd
ed., C.H. Beck, Munich, 2010, § 17, point 92. In support of this solution, see also Zilioli, C. and
Selmayr, M.,
La Banca centrale europea, Giuffrè Editore, Milan, 2007, p. 194; Manger-Nestler, C., in Pechstein, M., Nowak, C. and Häde, U. (eds), Frankfurter Kommentar zu EUV, GRC und AEUV, 2nd edition, Vol. III, Mohr Siebeck, Tübingen, 2023, Art. 127 AEUV, point 49; Griller, S., in Grabitz, E., Hilf, M. and Nettesheim, M. (eds),
Das Recht der Europäischen Union, 82. EL., updated May 2024, C.H. Beck, Munich, Art. 127 AEUV, point 99; Waldhoff, C., in Siekmann, H. (ed.),
The European Monetary Union – A Commentary on the Legal Foundations, Hart Publishing, Oxford, 2021, Article 127 TFEU, point 209; and Arda, A., ‘Consulting the European Central Bank. Legal aspects of the Community and national authorities’ obligation to consult the ECB pursuant to Article 105(4) EC’, Revue européenne de droit bancaire et financier, 2004, pp. 111 to 152, at p. 151.
70      Which I have described elsewhere as the historical legal cornerstone of the Treaties and their central organisational principle: see my Opinion in Joined Cases X and Visser (C‑360/15 and C‑31/16, EU:C:2017:397, point 1).
71      See the judgment in CIA Security International (paragraph 40), and judgment of 9 March 2023, Vapo Atlantic (C‑604/21, EU:C:2023:175, paragraph 42).
72      See, a contrario, Article 5(2) TEU, in combination with Article 258 et seq. TFEU. Arguably, the only exception to this principle is Article 14.2 of the ESCB and ECB Statute. See, on this very particular procedure,
judgment of 26 February 2019, Rimšēvičs and ECB
v Latvia (C‑202/18 and C‑238/18, EU:C:2019:139, paragraphs 65 to 77).
73      See Van Gerven, W., ‘Of rights, remedies and procedures’, in Common Market Law Review, Vol. 37, Issue 3, pp. 501 to 536, at p. 502.
74      This is commonly referred to as the ex tunc effect of preliminary rulings under Article 267 TFEU.
75      This case-law stretches back many decades (see judgments of 27 March 1980, Denkavit italiana (61/79, EU:C:1980:100, paragraph 16), and of 27 March 1980, Meridionale Industria Salumi and Others (66/79, 127/79 and 128/79, EU:C:1980:101, paragraph 9)) and is regularly reiterated (see, by way of example, judgments of 5 April 2022, Commissioner of An Garda Síochána and Others (C‑140/20, EU:C:2022:258, paragraph 125); of 29 September 2015, Gmina Wrocław (C‑276/14, EU:C:2015:635, paragraph 44); and of 28 October 2020, Bundesrepublik Deutschland (Determination of toll rates for the use of motorways) (C‑321/19, EU:C:2020:866, paragraph 54)).
76      See, by way of example, judgments of 29 September 2015, Gmina Wrocław (C‑276/14, EU:C:2015:635, paragraph 45), and of 28 October 2020, Bundesrepublik Deutschland (Determination of toll rates for the use of motorways) (C‑321/19, EU:C:2020:866, paragraph 55).
77      See judgments of 8 September 2010, Winner Wetten (C‑409/06, EU:C:2010:503, paragraph 67), and of 19 November 2009, Filipiak (C‑314/08, EU:C:2009:719, paragraph 84). See also judgment of 6 March 2007, Meilicke and Others (C‑292/04, EU:C:2007:132, paragraph 36 and the case-law cited).
78      See judgments of 17 December 1970, Internationale Handelsgesellschaft (11/70, EU:C:1970:114, paragraph 3), and of 8 September 2010, Winner Wetten (C‑409/06, EU:C:2010:503, paragraph 61).
79      See, by way of example, judgments of 29 September 2015, Gmina Wrocław (C‑276/14, EU:C:2015:635, paragraph 45), and of 28 October 2020, Bundesrepublik Deutschland (Determination of toll rates for the use of motorways) (C‑321/19, EU:C:2020:866, paragraph 55).
80      See Düsterhaus, D., ‘Eppur Si Muove! The past, present, and (possible) future of temporal limitations in the preliminary ruling procedure’, Yearbook of European Law, 2016, pp. 237 to 274.
81      See, by way of example, judgment of 16 September 2020, Romenergo and Aris Capital (C‑339/19, EU:C:2020:709, paragraph 49 and the case-law cited).