The Omnipotent Legislature in the Interpretation of Primary Law by the Court of Justice in the Fields of EU Citizenship and Direct Taxation

This chapter argues that the relationship between primary and secondary law is not as strictly hierarchical as it might initially appear. The Court may not only recognize the EU legislature’s wide discretion in implementing Treaty provisions—by refraining from annulling secondary law or from interpreting it in light of the Treaties—but may also allow the EU legislature to depart from its own previous judicial interpretations of the Treaties. This is demonstrated in this chapter in relation to the fields of EU citizens’ rights and direct taxation, each illustrating a distinct form of judicial deference. On the one hand, the Court has repeatedly deferred to legislative overrides of its prior interpretations of the Treaty provisions on EU citizens’ rights. The Court did so even though those interpretations seemed to hold a ‘super-normative’ status, having disregarded the ‘normative inversion’ contained in Article 21(1) TFEU, which expressly subjects EU citizens’ rights to the conditions and limitations laid down in secondary law. On the other hand, in the field of direct taxation, the Court arguably recognizes a special influence of the EU legislature. It consistently adjusts its interpretation of primary law to align with the will of the EU legislature, even when that will is expressed through legislation not applicable to cases concerning solely the interpretation of primary law and the compliance of national measures with it. The extent of this influence appears so significant that it has even led the Court to reverse its earlier case law.