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Topic 4.2: The EU's Court of Justice and Supremacy - Coggle Diagram
Topic 4.2: The EU's Court of Justice and Supremacy
Introduction
Expanding the scope of the doctrine of supremacy:
The supremacy of EU law must be applied against all national law, including fundamental provisions of a national constitution
EU Law prevails against all national law, whether the conflicting national law pre-dates or post-dates the EU legal instrument
Where a conflict arises between national law and EU law, all national courts are under a duty to give immediate effect to EU Law
Supremacy of EU Law: Bi-dimensional character - J.H.H Weiler, 1981)
'[T]he doctrine of supremacy is necessarily
bi-dimensional
.
One dimension
is the elaboration of the parameters of the doctrine by the European Court
But its full reception, the
second dimension,
depends on its incorporation into the constitutional orders of the Member States and its affirmation by their supreme courts
it is relatively easy to trace the evolution of the Community dimension of the doctrine...
As regards by the second dimension... the process is more complicated...'
Key questions on the perspectives of Member States:
Do the Member State courts accept the supremacy of EU law?
On what conceptual basis do they accept supremacy?
Do they place limits on their acceptance of supremacy?
Do they accept that the CJEU has the ultimate authority to rule on the extent of the EU's powers?
Supremacy: Response of
German Courts
Written constitution
German Federal Constitutional Court? Bundesverfassungsgericht:
(1) Acceptance of supremacy?
(2) Conceptual basis?
(3) Limits to acceptance?
Fundamental rights
Constitutional Identity
Competence/
Ultra vires
(1)
Acceptance
and (2)
conceptual basis
Honeywell
2010:
'The primacy of application follows from Union law because the Union could not exist as a legal community if the uniform effectiveness of Union law were not safeguarded in the Member States (see fundamentally ECJ Case 6/64 Costa/ENEL...) The primacy of application also corresponds to the constitutional empowerment of Art 23.1 of the Basic Law, in accordance with which sovereign powers can be transferred tot he European Union...' (para 53)
Provisions of the German Constitution as the dominant basis fo acceptance
Reference to the CJEU's functional argument from
Costa v Enel
(3)
Limits
to acceptance of supremacy
Fundamental rights
Internationale Handelsgesellschaft - Solange I
[1974]:
'The part of the Constitution dealing with fundamental rights is an inalienable essential feature of the valid Constitution of the Federal Republic of Germany... The Community still lacks a democratically legitimated Parliament directly elected by general suffrage... It still lacks in
particular a
codified catalogue of fundamental rights... Provisionally, therefore, in the hypothetical case of a conflict... the guarantees of fundamental rights in the Constitution prevails,
as long as
the competent organs of the Community have not resolved the conflict of norms...'
The EU lacked as directly elected Parliament and a codified catalogue of fundamental rights.
So long as
(solange) this was the case, German constitutional provisions on fundamental rights prevailed over EU law in the event of a conflict
Re Wünsche Handelsgesellschaft - Solange II
[1987]
'In view of these developments, it must be held that, so long as the European Communities, and in particular the case law of the European Court, generally ensure an effective protection of fundamental rights... which is to be regarded as substantially similar to the protection of fundamental rights required unconditionally by the Constitution... the Federal Constitutional Court... will no loner review such legislation by the standard of the fundamental rights contained in the Constitution.'
In light of developments, including the development of protection for fundamental rights by the CJEU, the German Constitutional Court would no longer systematically review EU law by the standard of the fundamental rights under German Constitution (
'so long as'
the present conditions prevailed)
National Constitutional Identity
'Lisbon' ruling
2009:
'European unification
on the basis of
a treaty union of sovereign states may, however, not be achieved in such a way that not sufficient space is left to the Member States for the political formation of hte economic, cultural and social living constitution. This applies
in particular to
areas which shape the citizens' living conditions...'
The transfer of sovereign powers to the EU must respect Germany's constitutional identity
Matters considered particularly sensitive for the ability of a constitutional democracy to shape itself include e.g. military use of force, basic fiscal decisions on government revenue and expenditure, procedural criminal law, matters of
particular cultural
importance such as education, family life, religious belief... (para 252)
Competence/
Ultra Vires
Brunner ('Maastricht')
[1994] - The Member States are the "Masters of the Treaties'. The BverG to review whether actions of the EU institutions and agencies (including the CJEU) stayed within the limits of their powers.
'Ultra vires
EU law will not be applied at the national level
Honeywell
2010 - BverG to give the CJEU the opportunity to first rule on the validity of the legal act in question. The BverG will not give effect to EU law if there is a
manifest
violation of competences (para 61)
Gauweiler
- BverG sends a preliminary reference to the CJEU in 2014: Was the European Central Bank's Outright Monetary Transactions (OMT) scheme a violation of the competences set by the Treaty? The CJEU ruled in 2015 that the European Central ban had not acted
ultra vires,
and BverfG accepts that outcome in 2016
Weiss:
BverfG makes another preliminary reference in 2017 on the Public Sector Asset Purchase Programme (PSPP) of the European Central Bank. Did the PSPP decision venture too far into economic policy reserved by the Member States?
The
CJEU
replied in 2018:
PSPP is a
proportionate
measure and it falls within the ambit of the European Central Bank's competences (the CJEU held that the PSPP decision fell within the remit of monetary policy, and not economic policy)
PSPP
2020:
German Constitutional Court (BVerfG) did not accept the CJEU's
Weiss
case
BVerG ruled that EU law (decision of the ECB) was
ultra vires
BverG also ruled that the CJEU had acted
ultra vires
in upholding the proportionality of that law
BVerfG: The CJEU's judgement resulted 'in a structurally significant shift in the order of competences to the detriment of the Member States. To this extent, the CJEU Judgement itself constitutes an
ultra vires
act and ths has no binding effect [in Germany] (para 119)
Reactions
From CJEU: Press Release (8 May 2020)
In Order to ensure that EU law is applied uniformly, the
Court of Justice alone -
which was created for that purpose by the Member States -
has jurisdiction to rule that an act of an EU institution is contrary to EU law
Divergences between courts of the Member States as to the validity of such acts would indeed to be liable to place in
jeopardy the unity of the EU legal order
and to detract from legal certainty
Like other authorities of the Member States,
national courts are required to ensure that EU law takes full effect.
That is the only way of ensuring the equality of Member States in the Union they created'.
From Commission: Statement by President
'... the European Commission upholds 3 basic principles: that the Union's monetary policy is a matter of exclusive competence;
that EU law has primacy over national law and that rulings of the European Court of Justice are binding on all national courts
The final word on EU law is always spoken in Luxembourg. Nowhere else
The European Commission's task is to safeguard the proper functioning of the Euro system and the Union's legal system
We are now analysing the ruling of the German Constitutional Court in detail. And we will
look into
possible next steps, which may include the option of infringement proceedings
Polish Courts
Initial acceptance and conceptual basis
Acceptance of EU supremacy grounded in Art 90(1) of the Constitution of the Republic of Poland:
'Republic of Poland may, by virtue of international agreements, delegate to an international organisation or international institution the competences of organs of state authority in relation to certain matters'
Limits to acceptance of supremacy
Polish Membership of the European Union (Accession Treaty) K 18/04, May 2005:
Polish Constitutional Tribunal: 'Neither Art 90(1) nor Art 91(3) authorise delegation to an international organisation of the competence to issue legal acts or take decisions contrary to the Constitution, being the 'supreme law of Poland' (Art 8(1))
Such a collision [between EU Law and the Polish Constitution] would occur
in the event that
an
irreconcilable inconsistency
appeared between a constitutional norm and a Community norm... Such a collision may in no event be resolved by assuming the supremacy of a Community norm over a constitutional norm
In such an event the Nation as the sovereign, or a State authority authorised by the Constitution to represent the Nation, would need to decide on: amending the Constitution; or causing modifications within Community provisions; or, ultimately, on Poland's withdrawal from the European Union'
''Revolt' by the Polish Constitutional Tribunal Post-2015
The Law and Justice Party (PiS) entering government in 2015 marked the beginning of a ROL crisis in Poland. Polish courts no longer met the requirements of an impartial and independent tribunal, with the Constitutional Tribunal being the first to lose its independence
Once packed with government-friendly judges who lacked independence, the Constitutional Tribunal began to challenge EU law, including by refusing to make preliminary references and by rejecting the authority of the CJEU. The most overt rejection of the doctrine of supremacy of EU Law and of CJEU authority was in October 2021...
The reaction of EU institutions to the ROL crisis in Poland: European Commission (e.g. infringement proceedings) and CJEU (new line of jurisprudence launched in 2018, including C-64/16
Portuguese Judges
)
Decision K3/21 of 7 October 2021
The Polish Constitutional Tribunal ruled that select provisions of the EU Treaties, as interpreted by the CJEU, were incompatible with the Polish Constitution
Was the Polish Constitutional Tribunal embolded by the German Federal Constitutional Court?
Consider some key differences from the BVerG ruling e.g.
The Polish judgement ruled that an 'array' of foundational EU Treaty provisions were incompatible with the Polish Constitution (rather than focusing on a specific decision)
No preliminary reference was made to the CJEU to request its view
The lack of independence of the Polish Constitutional Tribunal
Conclusion
Statement by Commission President (Oct 2021)
'I am deeply concerned by yesterday's ruling of the Polish Constitutional Tribunal. I have instructed the Commission's services to analyse it thoroughly and swiftly. On this basis, we will decide on next steps
The EU is a community of values and laws. This is what binds our Union together and makes it strong. We will uphold the founding principles of our Union's legal order. Our 450 million Europeans rely on this.
Our outmost priority is to ensure that the rights of Polish citizens are protected and that Polish citizens enjoy the benfits granted by memberships of the European Union, just like citizens of our Union...
Our Treaties are very clear. All ruligns by the European Court of Justice are binding on all Member States' authorities, including national courts.
EU law has primacy over national law, including constitutional provisions.
This is what all EU Member States have signed up to as members of the European Union. We will use all the powers that we have under the Treaties to ensure this.
Is there a 'final judicial arbiter'?
Who has the final say: National constitutional courts or the CJEU
The CJEU and European Commission are clear that the CJEU has the final word'
National constitutional courts do not see it that way
Does there have to be one final arbiter? or can the system accept 'constitutional pluralism?
'the most appropriate analysis of the relations of legal systems in pluralistic rather than monistic, and interactive rather than hierarchical.' (N MacCormic in Craig and de Burca)