Short answer
A national court must disapply domestic legislation when a directly effective EU provision governs the dispute and the two rules cannot be reconciled. The court must give the EU rule full effect within its jurisdiction, whether the conflicting national legislation was enacted before or after it. It need not wait for parliament to repeal the law, for a constitutional court to set it aside, or for another authority's permission.
Primacy does not require disregard whenever an EU text points in a different direction. The EU provision must have direct effect in the pending case. Even a clear directive cannot itself impose an additional obligation on a private defendant. The court should first consider consistent interpretation; otherwise, disapplication needs another directly effective EU rule, while State liability may address faulty implementation.
Disapplication is case-specific: it gives the EU rule priority in the dispute but does not erase the national statute from the legal order.
Primacy gives the applicable EU rule priority
EU primacy prevents a Member State from neutralising an applicable EU rule through its own legislation. Article 4(3) of the Treaty on European Union (TEU) supplies part of the constitutional foundation through the principle of sincere cooperation:
The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. —
The practical consequence was stated in Amministrazione delle Finanze dello Stato v Simmenthal, Case 106/77. The Court of Justice held that timing did not allow later national legislation to prevail:
A national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provisions by legislative or other constitutional means. —
The rule covers earlier and later legislation and every national court acting within its jurisdiction.
The court disapplies the conflict; it does not necessarily erase the statute
The court refuses to apply the domestic provision to the extent that it obstructs the directly effective EU rule. This is called disapplication or setting aside.
That consequence differs from invalidity under national constitutional law. The provision may remain formally on the statute book and govern situations outside the EU rule's scope. Legislative amendment or constitutional review cannot be a precondition for protecting the directly effective EU rule in the pending case.
The court must identify the conflict precisely. If recognised national methods permit EU-consistent interpretation, that avoids the conflict. Otherwise, it asks whether the EU provision can itself apply in the dispute; only then does disapplication follow.
Direct effect is the critical limit
The Grand Chamber clarified the relationship between primacy and direct effect in Popławski II, Case C-573/17. Primacy establishes the pre-eminence of EU law, but it does not give every EU provision identical effects in national litigation:
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
On the other hand, a provision of EU law which does not have direct effect may not be relied on, as such, in a dispute coming under EU law in order to disapply a provision of national law that conflicts with it. —
This requires a provision-by-provision assessment. Treaty or regulatory provisions can require disapplication where their terms support direct reliance. A Charter right can do so only within EU law's scope and where it is sufficient in itself; a Charter principle requiring legislative expression may not.
Directives require particular care. A sufficiently clear, precise and unconditional directive may be relied on after the implementation deadline against a Member State or an attributable public body. It cannot of itself impose an obligation on a private person. Popławski II therefore held that even such a directive does not permit disapplication where the result would be an additional obligation for an individual.
Courts must still interpret domestic law consistently with a directive as far as recognised methods permit. State liability may respond to an implementation breach, and a separate directly effective EU right can change the outcome.
In Kücükdeveci, Case C-555/07, for example, disapplication in a dispute between private parties rested on the general EU principle prohibiting age discrimination, within the scope of EU law, as expressed by Directive 2000/78/EC. It did not rest on treating the directive itself as a source of horizontal obligations. The legal basis for disapplication must always be stated accurately.
Constitutional review may not block EU judicial protection
A Member State may organise constitutional review, but the procedure cannot deprive ordinary courts of their EU-law functions. In Melki and Abdeli, Joined Cases C-188/10 and C-189/10, the Grand Chamber considered a French priority procedure for constitutional questions. Such a procedure could coexist with Article 267 of the Treaty on the Functioning of the European Union (TFEU) only if the other national courts remained free:
— to refer to the Court of Justice for a preliminary ruling, at whatever stage of the proceedings they consider appropriate, even at the end of the interlocutory procedure for the review of constitutionality, any question which they consider necessary,
— to adopt any measure necessary to ensure provisional judicial protection of the rights conferred under the European Union legal order, and
— to disapply, at the end of such an interlocutory procedure, the national legislative provision at issue if they consider it to be contrary to EU law. —
The national court may seek a preliminary ruling where the EU rule is uncertain. A lower court cannot be forbidden from referring merely because a higher national court has expressed a view. A reference is not automatically required before disapplication where the rule is clear and the court is not one of final instance.
Case C-521/21 confirmed this in March 2026: an ordinary court had to disregard legislation and constitutional case law preventing it from examining whether a judge met EU independence requirements. Primacy protected that EU-law task without awaiting constitutional permission.
There is an important distinction where the validity of the EU measure itself is challenged. National courts may reject an invalidity argument and apply the EU measure, but they cannot declare an EU act invalid. A genuine validity question must go to the Court of Justice so that EU law remains uniform.
Can the conflicting national rule continue temporarily?
A national court or legislature cannot ordinarily create a grace period for a domestic rule that conflicts with directly applicable EU law. In Winner Wetten, Case C-409/06, a German court asked whether incompatible gambling-monopoly legislation could remain temporarily in force to avoid a legal vacuum. The Grand Chamber held that it could not continue on the facts before it.
The Court recognised its own exceptional power to limit the temporal consequences of EU rulings where overriding legal-certainty considerations justify that step. It did not transfer a general suspension power to national authorities. Any exceptional conditions would be determined by the Court of Justice, and the claimed considerations in Winner Wetten were insufficient.
Administrative inconvenience or the desire for an orderly amendment is not, by itself, authority to keep applying incompatible legislation.
A practical sequence for the national court
A court assessing a claimed conflict should ask:
- What exact EU provision governed the facts? Confirm its version, application date, scope, and territorial reach.
- Can the rules be reconciled? Apply recognised methods of EU-consistent interpretation without rewriting national law.
- Does the EU provision have direct effect here? Consider its precision and conditionality, the instrument type, and the identity of the parties.
- Would a directive impose a new private obligation? If so, the directive alone cannot justify disapplication.
- Is another directly effective EU rule engaged? A Treaty provision, regulation, Charter right, or general principle may independently control the dispute.
- Is procedural protection needed now? National procedures must preserve interim protection, the Article 267 reference power, and the eventual ability to disapply.
- Is validity, rather than interpretation, in issue? Only the Court of Justice may declare an EU act invalid.
Conclusion
A national court must disapply conflicting domestic legislation, including legislation adopted later, when a directly effective EU provision applies in the case and reconciliation through lawful interpretation is impossible. It acts on its own authority and need not wait for legislative repeal or constitutional invalidation.
The decisive qualification is direct effect. Primacy gives an applicable EU rule priority; it does not turn every EU text into a rule that can impose duties in every dispute. Courts must be especially precise with directives and private defendants, preserve the preliminary-ruling system, and avoid inventing national transitional periods for incompatible law.
Sources
This article provides general legal information, not advice for a specific matter. Laws, facts and procedural deadlines may change the result. Follow the linked primary sources and obtain local advice before acting.