Supremacy of EU law: other European visions

Uk generally seen as one of the most Eurosceptic countries in the EU. There is some truth in this but it’s fair to say that Europe has at times also got cold feet about Uk membership. There are of course infringements of community law but the UK takes it quite seriously and even other countries which are euroenthusiasts but they have infringements. Here we’re going to look at in particular what other supreme courts have done in order to engage with European law supremacy claim made by the ECJ.

Learning outcomes

(i) Identify the main attitudes of other MS’s supreme courts towards EU law supremacy in general

Germany has had 2 main issues over the EU law supremacy claim by the ECJ, both with regards to their constitution.

1. EU law is supreme but does it regard fundamental rightsa. Fair question in the 60s as at the time, the ECJ basically dealt with economic

freedoms and what if one of those breached fundamental rights2. The issue of competence and the transfer of sovereignty to the EU

Germany: defending constitutional values

• The issue at stake: A 24 of German Constitution permits transfer of legislative powers to international organisations. But what if their instruments contravene constitutionally protected values?

• (the judgment was such that where there is conflict, the ECJ should prevail. In response to that, they came up with a case called solange 1)

• Round 1 : The reception of Internationale (Case 11/70) by the German Constitutional Court and ‘Solange 1’ :

– ‘The Community still lacks a democratically legitimated Parliament … It still lacks in particular a codified catalogue of fundamental rights’

– ‘therefore, in the ... case of a conflict between Community law and … the guarantees of fundamental rights in the [German] Constitution … the guarantee of fundamental rights… prevails as long as [HENCE THE NAME ‘SOLANGE’, ndr] the … Community [has] not removed the conflict’.

– (the ECJ sort of accepted they could live with this. There have been some other isolated national rebellions but the EU doesn’t collapse. If they’re repeated and unresolved it’s an issue though)

– (the ecj nat court dialogue is not just one way. The ECJ is quite responsive. So here, eventually the ECJ pulled itself together and managed to create a doctrine for potential of fundamental rights at a com level. So a few years later, the germans

modified their stance after assessing the level of fundamental right protection offered by the ECJ)

• Round 2 : ECJ develops protection for HR; Federal Court embraces ECJ in‘Solange II’ [Wünsche (1986)]

– ‘In the view of these developments, it must be said that, so long as the EC, and in particular the … Court, generally ensure an effective protection of fundamental rights …the Federal Constitutional Court will no longer exercise its jurisdiction…’

• Round 3 : ‘ever growing’ EU competencies and the Brunner more prudent decision (1993)

– (what happens if we keep transferring power to them; where do the EU law making institutions draw their legitimacy from? And where do we as german people stand on this. SO almost systematically whenever there are new treaties that try and expand the competence of the EU, there are national challenges which end up before the german constitutional court where people ask if the treaty is going to go against their values. This has happened a number of times and the first is the most famous; the brunner decision in regards to the treaty of mastricht)

– (court said there is an issue but at this stage of development i don’t think it’s reached a tilting point where... check if you can)

– ‘there is a breach of [the German Constitution] if an [EU] Act … does not establish with sufficient certainty the intended programme of integration. … Germany preserves the quality of a sovereign state’ [paras. 48 and 55]

– ‘The Court guarantees this essential content as against the sovereign powers of the Community’ [para. 13]

Round 4 – The Lisbon judgement Gauweiler v Treaty of Lisbon, 2009

• ‘ The Basic Law does not grant the German state bodies powers to transfer sovereign powers in such a way that their exercise can independently establish other competences for the European Union. It prohibits the transfer of competence to decide on its own competence (Kompetenz-Kompetenz)... ‚

• (This was brought before th german const court by a left wing german party. It’s not particularly strong in germany and even less influential in the EP. So they might say, this transfer of competence is depriving us of the democratic powers given to us by the german const. The court said the key issue here is what sort of powers we give to the EU not how many powers we give them. So as long as it’s not the EU that gets to decide its own competencies then we should be fine. We have to make sure the EU doesn’t get the competence to decide it’s own competences it’s alright. Basically the german constitution prohibits that)

Round 4 – The Lisbon judgement Gauweiler v Treaty of Lisbon, 2009

• Accordingly, the Act approving an international agreement and the national accompanying laws must therefore be such that European integration continues to take place according to the principle of conferral without the possibility for the European Union of taking possession of Kompetenz-Kompetenz or to violate the Member States’ constitutional identity which is not amenable to integration, in this case, that of the Basic Law.

• Chalmers: constitutional tollerance model

• We are not too happy with it but as long as it remains within certain boundaries we will tolerate it. Chalmers thinks this idea applies to most EU states. (it is true it applies to the brit parliament but uk courts seem to accept that it’s hands are completely tied but hte german const court seems to not quite accept this)

• (almost makes some pts about the pts of a german parliaments competence. E.g. taxation and stuff where if the EU tried to threaten this the german courts and const courts would be entitled to say no to the ECJ and the EU law supremacy claim)

But some new MSs still antagonise ECJ and EU law supremacy - Polish Constitutional Court decision on EU membership (2005):

(these states with new found independence are quite jealous of the sovereignty. So you can see how sensitive the issue was for the polish constitutional court back then. Joining the EU doesn’t mean we’re just forgetting our newly acquired national sovereignty.)

• ‘Given its supreme legal force … the Constitution enjoys precedence of binding force and precedence of application … The precedence over statutes of … international agreements which were ratified … via nationwide referendum … in no way signifies an analogous precedence of these agreements over the Constitution’

• ‘The principle of interpreting domestic law in a manner “sympathetic to European law” … has its limits. In no event may it lead to results contradicting the explicit wording of constitutional norms or being irreconcilable with the minimum guarantee functions realised by the Constitution’.

• Chalmers – constitutional sovereignty model

Other MS appear to be more willing to accept EU law sovereignty at face value:

• e.g Spain ‘the declaration of the primacy of Union law … does not contradict the supremacy of the Constitution… The Constitution itself has accepted … the primacy of Union law in areas covered by that Law…’ (decision of Spanish Constitutional Court of 2005)

• Shared sovereignty model?

• One way of conceptualising the relationship is about coexisting areas of sovereignty. Areas of pure eu sov, co exist and ones where we’re as sovereign as before.

Where do you think the UK fits in these 3 models or do we need another model.

British courts have by and large accepted EU law supremacy fairly uncontreversially and that’s because an act of parliament as they see it tells them to accept it so the tensions in the uk are not with the courts but more with the govt and the parliament. You can see these different traditios. The continental constitutional courts according to their tradition are guardians of the constoitutional order so they take the lead. In the uk the p sits at the apex of the cost system.

So maybe we aren’t looking at the right area of nat law we should focus a bit more on p’s and government and we’ve tried to do so by looking atthe bill and not exclusively the courts. If you look at the courts attitude they have accepted it but only cause theres an act of p that tells them to do so.