The Principle of Supremacy of EU Law Depends on Its Reception in National Constitutional Courts - Essay Example

?The Efficacy of the Principle of Supremacy of EU Law Depends On Its Reception in National Constitutional Courts The principle of supremacy is the key element in the legal system of the European Community. It makes sure that the Community law is applied uniformly and in an effective manner. It is clearly stated in the European Court of Justice case law that the Community law is above the national laws of the member states, and this includes the fundamental standards of their state constitutions. It is important to note that the precise scope and basis of supremacy has been leading in both academic and judicial debates. Despite being recognized by member states, there are particular reservations made by the national constitutional courts that challenge the principle of supremacy of the Community law. They view supremacy as an ideology rooted in national constitutions instead of being derived from the nature of Community legal order.1 Based on this notion, the constitutional courts possess the right to evaluate whether the European Union institutions conduct themselves within the competences given to them and respect the fundamental human rights and constitutional norms. An example of such cases include the Maastricht and Solange I and II decisions made by the German Constitutional Court, the Maastricht decision made by the Danish Supreme Court, and the Frontini and Granital decisions made by the Italian Constitutional Court. France offers a good example of how the supremacy of the European Union law depends on the reception of the national constitutional court. In France, the Constitutional Council frequently subjects new treaties to preliminary evaluation. The Constitution can be amended before the ratification process if an incompatibility is seen and this practice is crucial because it significantly minimizes the risk of constitutional conflict with the Community law.2 The acceptance of the Community law supremacy remains a contentious issue for case law. This is specifically evident in the possible conflicts between the national constitution and the European Union norms. The principle of supremacy can give rise to delicate and complex matters. It is crucial to state that no case law has ever addressed the issue of EU law supremacy and the national constitution. When a conflict exists between the ordinary domestic legislation and primary EU law, it is anticipated that the courts cannot hesitate to offer influence to the principle of supremacy.3 For the constitutional courts, the mere acceptance of the supremacy of EU law over the national constitutional law is equated to rendering the courts redundant.4 The supremacy of the European Union law is among the four constitutional doctrines of the European Union (EU) law. The supremacy has no formal foundation in the original or first Treaty of European Community. Nonetheless, the European Court of Justice (ECJ) based on the conception of the new legal order established it. This can be well illustrated by its landmark case (Flaminio Costa v. ENEL) in which it was established that there existed a conflict between the Italian laws on national electricity monopoly and the EC (European Community) provisions permitting the free movement of goods. The ECJ created a clear hierarchy between the national law and EC by stating that in contrast with the normal international treaties, the EEC had established its legal system in which an entry into the Treaty force became an important part of the member states’ legal systems and in which their courts are required to apply.5 The court further ruled that the law emanating from the Treaty (that is, a self-governing source of law) was not possible to be overridden by the domestic legal provisions because of its original and special nature. The reactions to the principle were different among the Member States. It is important to note that the principle of supremacy over the national laws has been recognized by the Member States. Difficulties have emerged in acknowledging the absolute supremacy over the provisions in the national constitution, for instance, pieces from the jurisprudence of the German and Italian Constitutional Courts. The Italian Constitutional Court in the Frontini case suggested that the 1957 act giving the ratification of the EEC Treaty was not in violation of the Constitution. 6 However, the court was keen to spare itself the right to appraise the on-going compatibility of the Constitution and the Treaty. Article 189 of the Treaty was interpreted by the court as giving the institutions of the EEC the power to infringe the inalienable human rights or the basic principles of the Constitution. In the 1984 Granital case, the court offered precedence to the Community law, but gave more emphasis on its competence over any characteristic of the relationship between the municipal law and the Community law. A similar scenario can be applied in the Fragd case. However, it is crucial to note that in all these decisions, the court’s reasoning was rather sceptic to the Community law than the final decision given; none of the implemented was found to be unconstitutional.7 In the German jurisprudence, the Solange I and II cases are good examples in which the German Constitutional Court expressed concerns for the safeguarding of fundamental rights. This can be illustrated by the Maastricht decision and the Kompetenz-Kompetenz doctrine launched by the court in Kloppenburg. It is worth noting that even after the litigation of Banana, the Bundesverfassungsgericht made a decision to step back by putting “in stand by” powers to assess to appraise secondary community legislation to protect the fundamental rights. This is because according to them, the degree of protection offered by the European Union was seen as satisfactory.8 9 The reception by the members states of the principle of supremacy of European law, the resistance by the national Constitutional Courts to give away the power of the judicial appraisal of the European Union law, and the relationship between the national and European law are still a big challenge to the European law and the secondary European legislation. However, in this instance, the challenge originates not only from the Old Members states like Spain, France, and Germany but also from new members states of the European Union such as those from the East bloc.10 Therefore, a key issue of any future European constitution is dependent on the inter-relationship between the ECJ and the national courts, and more importantly in the claim of supremacy over the national law set out in the jurisprudence of ECJ.11 Supremacy of the European Union law is a doctrine that was developed by the ECJ. However, it is very clear that fiction exists within the European Union. Majority of the members’ states do not fully acknowledge the supremacy doctrine with Netherlands being an exception in this case. The Constitution of the Kingdom of Netherlands created in 1963 suggests that the self-executing resolutions and treaties of the international organizations bind upon legal and natural persons and possess supremacy over the national law (inclusive of the Acts of Parliament, the Constitution and the subordinate legislation). Furthermore, Article 66 indicates that the legal regulations in the United Kingdom cannot apply if this application is found incompatible with provisions of the agreements entered in the period of the enactment of regulations. It is important to state that the acknowledgement of the supremacy doctrine by Netherlands is derived from the recognition of the unique nature of the European Union law.12 In the United Kingdom, the main issue is that it strictly follows the dualist theory when checking the relationship between international and internal law. The theory states that the international and internal laws are two separate legal systems. Accordingly, the internal provisions are used wholly between the borders of the member states, and are unable to intercede in international legal system. In the same way, an ideal international treaty is only effective at the international level. If the treaty has to be applied in the contracting state, it is important for that nation either to introduce the treaty through a legal framework that facilitates admission or to adopt legal measures within the treaty into the national provisions.13 Therefore, in the United Kingdom, the acknowledgement of the supremacy doctrine is supposed to be based on the express constitutional amendment(s) or other forms of acts of Parliament. The European Communities Act of 1972 gives internal legal effect to the EU law in the United Kingdom. Section 2(1) appears to offer automatic enforcement of directly effective European Union law in the UK courts. Another issue that makes it impossible for the Community Law to be accepted is the eminent irreconcilability, that is, the supremacy of the EU law versus the traditional doctrine of the parliament’s sovereignty.14 The constitutional doctrine of the parliament’s sovereignty indicates that the Parliament is the superior legal authority in the United Kingdom, which is capable of creating or ending any law. In general, the United Kingdom courts are unable to overrule Parliamentary legislation, and no Parliament can enact laws that the future Parliaments are unable to change. The 1972 Act developed an obligation to interpret all national legislations in a way that is consistent with the directly effective European Union law provisions. However, the logical difficulty is still eminent since that time because the act is just an act of Parliament like the rest. In the Factortame cases, the House of Lords acknowledged that the ruling given by ECJ was under the 1972 Act terms, that is, it was the role of the United Kingdom court to override any national law rule that is found to be conflicting with any directly enforceable Community law rule when delivering its final judgment. However, the importance of the Factortame cases is that the EU law supremacy over the UK national law is only acknowledged where the United Kingdom law possesses competence over the legal system of Britain. Thus, if the British Parliament enacts a new law that conflicts with the European Union law, it is within the powers of the national courts in some cases to offer a temporary injunction to stop the UK authorities from enforcing it.15 The position of the Court of Justice has been contested by the national constitutional courts. In the 1970’s, the Italian and German constitutional courts suggested that they would not use European Union law provisions that did not respect the values set and fundamental rights set in their national constitutions. Recently, there was some leeway offered to the Court of Justice with both Czech and German Constitutional Courts indicating that, because the European Union law possessed enough fundamental rights guarantees, an active assessment of the EU legislation would not be made on condition that this basic level of protection was preserved.16 However, there is no instance where the national constitutional courts have suggested that the Court of Justice bounds them on the fundamental rights. It is worth mentioning that there is also no instance where the national constitutional courts have accepted a judgement by the Court suggesting that the constitution was misinterpreted. The monopoly of the national constitutional courts in the interpretation of the significance of the rights stated in their constitutions was evident in the Admenta case in which the Italian State Council gave a ruling. In the ruling, the State Council indicated that under the Italian law, there were areas of the law that were protected and existed outside the European Union law and as such, the Italian law was supreme. Fundamental rights were one of the areas and even if the issue conflicted with the European Union law, it was not a concern because the fundamental rights are reserved for the national law.17 Because of very limited access to European Union courts for the individuals, the main route for these individuals to declare their rights under the EU law or to dare the validity of the EU actions and laws is through the national courts. The individuals are further helped by the doctrines of direct effect and of supremacy. Most of the cases heard by the ECJ are preliminary references. This is a process where the national courts can refer questions based on the interpretation and validity of the European law to the ECJ. The process is a two-hander between the ECJ and the national court. The case begins in the national court, and if it becomes apparent that the EU law dimension exists, the court can make a reference if the reference on the interpretation or the validity of the EU law is mandatory for the case’s outcome.18 In the case of a court of last resort (that is, further appeal cannot be made), a reference must be made based on the qualifications mentioned below. The case with its questions is sent to the ECJ by the court. Answers to the questions are given by ECJ and the issue is sent back to the national court for the culmination of the proceedings. It is important to note that the questions are answered after establishing whether they were addressed in the previous case laws, and in such a case, ECJ only sends the earlier answer. If necessary, the ECJ will redraft the questions and answer them in the order it deems most suitable to the case. An element of uncertainty can occur when making the reference and on average, it takes seventeen months. It is important to state that the ECJ does not rule on national law. The only thing it can do is to hold a rule that is referred to the national court, which indicates inconsistency with the European law. Thus, the national court is left to disapply the law. At times, judgments made by ECJ are Delphic which makes it difficult and impossible for the national courts to make a decision on how to proceed. In some occasions, rulings made by ECJ can be very accurate such that they leave little or no room for the national courts to make decisions concerning the case.19 In conclusion, the Court of Justice’s introduction of the supremacy doctrine caught many constitutional courts unaware because they were not ready to give out their roles as the sole protectors of the constitution. The courts took a position that would enable them to avoid the European Union laws based on the constitutional grounds.20 It is evident that the efficacy of the principle of supremacy of European Union law depends on its reception in national constitutional courts. The reception by the various member states of the European Union is different. There are some nations that have wholly given the supremacy of the EU law to override their national constitutional court’s rulings while in some nations, there are reservations to what the EU law can do. In the latter case, the national constitutional court allows to some extent the supremacy of the EU law to override their decisions in rulings. For instance, in some nations like German, the supremacy of the EU law does not undergo thorough review on condition that it does not violate the fundamental rights. Therefore, as aforementioned, the effectiveness of the supremacy of the EU law is entirely dependent on the reception given by the national constitutional courts. Bibliography Albi A, ‘Bringing Parliaments into the Equation of Co-operative Constitutionalism’ (2007) European Constitutional Law Review 25. Chalmers D, Davies G and Monti G, European Union Law: Cases and Materials (Cambridge University Press 2010). Craig P and de Burca G, EU Law: Text, Cases, and Materials (Oxford University Press 2011). Craig P, ‘The ECJ, National Courts and the Supremacy of Community Law’ (2004) The European Constitution in the Making 35. Cremona M, Compliance and the Enforcement of EU Law (Oxford University Press 2012). El-Agraa A M. The European Union: Economics and Policies (Cambridge University Press 2011). European Commission for Democracy Through Law, Constitutional Courts and European Integration (Council of Europe 2005). Piqani D, ‘Supremacy of European Law Revisited: New Developments in the Context of the Treaty Establishing a Constitution for Europe’ (PhD thesis, Central European University 2007). Sadurski W, Constitutionalism and the Enlargement of Europe (Oxford University Press 2012). Zhang A, ‘Supremacy of EU Law: A Comparative Analysis’ (Thesis, University of Illinois 2014). Read More