Disputes have arisen since the CJEU extended the principle of supremacy of EU law to the constitutions of the Member States
Interview by Marinko Jurasić.
Ever since the great world politician, British statesman Winston Churchill, first said in one of his famous speeches on September 19, 1946 at the University of Zurich that for peace, freedom and security we must build a kind of „United States of Europe”, the key issue for the community of European countries has been, on the one hand, its integrity, and on the other, the equality of the Member States within the community. This issue has run through all phases and forms of connecting European countries, all the more so as the community has expanded and integration has intensified, especially since the 1990s with the fall of the Berlin Wall, whether through the Council of Europe or the EU. And never more so than in these days, since US President Donald Trump took power in the USA and caused tectonic changes and disruptions in global politics. The speech of the pioneer of the European idea is powerful and relevant for today’s Europe, which is currently facing a Hamlet-like dilemma regarding integrity that would have befallen Europeans at some point anyway. Especially in terms of foreign policy and security. The judiciary could be said to have found mechanisms for respecting different national identities and legal systems, at least when it comes to fundamental human rights and freedoms, and the European acquis communautaire, while upholding the supremacy of EU law. Although the practice of the European Court of Human Rights within the Council of Europe, and the Court of Justice of the European Union when it comes to EU law, as well as the practice of the constitutional courts of the countries, constantly validates and re-examines the relations between European and national law. Prof. Dr. sc. Frane Staničić, recently elected as a judge of the Constitutional Court, is a researcher on the project „Strengthening cooperation while preserving equality among EU Member States”, led by the Central European Academy, which deals with precisely the above-mentioned issues.
What is the aim of the project, who is involved, how are the tasks divided and when are the results expected?
The aim of the project „Strengthening cooperation while preserving equality between EU Member States” is to determine whether it is possible to ensure closer cooperation between Member States, while at the same time ensuring respect for the principle of equality of Member States. Legal scholars from Slovenia, Croatia, Serbia, Hungary, Poland, the Czech Republic, Slovakia and Romania are participating in the project. Each researcher has received their own project assignment, within which they will research a specific topic that they will analyze through scientific papers, blog posts and a chapter in a book. The publication of the book and scientific papers as part of the project is expected next year.
What are the fundamental questions that the project needs to answer?
The fundamental question of the project is the protection of the principle of equality of EU Member States in the context of Article 4 of the Treaty on European Union in light of the EU’s obligation to respect the equality of Member States before the Treaties, as well as their national identities. In this sense, the project also aims to answer the question of the relationship between EU law and national legal orders in light of the relationship between EU law and the constitutions of the Member States, i.e. whether the EU legal order is superior to the fundamental constitutional provisions of the constitutions of the Member States that constitute their constitutional identity. In order to do this, it must also be determined whether the constitutional identity of the Member States exists and to what extent. It is necessary to determine the appropriate balance between the democratic functioning of the EU, the equal status of the Member States and the efficient manner of decision-making in the EU bodies. In this context, the goal of creating an „ever closer union” is important, i.e. whether it is a process or an ultimate goal, and if so, whether all Member States must achieve it at the same time. Also, whether this goal can be achieved at all while respecting the principle of equality of the Member States and their history, culture and traditions is a very important question, which must be answered whether this is possible only through the EU or also through traditional interstate cooperation.
How did you get involved, what are the topics of your work on the project and what questions do you need to answer? Did you define them yourself or were they assigned to you?
I have been collaborating continuously and successfully with the project holder, the Central European Academy, as well as my Hungarian colleagues on various scientific projects for four years now, and I would like to take this opportunity to thank them for their long-standing and successful cooperation. My project tasks are determined by the content of the project and relate to the principle of equality as a principle of EU law and its relationship with other principles, especially solidarity and national identity. As part of this topic, I am particularly concerned with the relationship between EU law and the constitutional orders of the Member States. I need to answer the question of whether equality is a principle of EU law and how it is regulated, and what is its relationship with other principles of EU law. It is my duty to place the matter in the context of the perspective of EU law and the interpretation of Article 4 of the Treaty on European Union, which guarantees the equality of the Member States.
The legal system today, especially in transition countries, is no longer what it once was, but not even for members of the Council of Europe, and especially for EU members, including Western countries with a long democratic and legal tradition. What is the legal system today?
It has been typical, when we talk about legal systems, since Kelsen, to talk about a system of legal norms at the top of which is the constitution, as the fundamental legal norm (that is why the Germans call their constitution Grundgesetz). However, with the development of international organizations and the development of supranational law, including EU law, and especially the European Convention for the Protection of Fundamental Rights and Freedoms, legal systems are becoming more complex. The relationship of hierarchy is becoming more difficult to determine, which is especially pronounced with regard to EU law. It is common to say that the legal system is structured as a pyramid. It was also common to structure this pyramid in the following way: constitution, law, by-laws. Today, this is no longer the case due to the existence of supranational legal systems and systems of international law, which is especially pronounced with regard to EU law. Namely, the Court of Justice of the EU consistently interprets that EU law is superior to all other sources of law, of course in accordance with the principle of subsidiarity, including the constitutions of the Member States. This principle, coined by the Court of Justice of the EU, is the source of numerous conflicts between the constitutional courts of the Member States and the Court of Justice of the EU. Our Constitutional Court, for example, has given the European Convention the so-called „quasi-constitutional” status (a violation of the Convention is equivalent to a violation of the Constitution). From the above, it is quite clear that the former definition of the legal order is no longer valid, or that it is necessary to modify it, which especially refers to the hierarchy of legal sources within a legal order.
The relationship between EU law and the constitutions of the Member States is manifested through the normative activity of the EU and the Member States and the practice of constitutional and other national courts and European courts. Is this resolved uniquely and how has it been resolved in our country?
The relationship between EU law and the constitutions of the Member States is determined by the idea that in all cases in which a conflict of norms arises between the law of a Member State and EU law, EU law prevails (principle of supremacy). It was developed through the practice of the Court of the EU because it is not normatively prescribed in any way in the fundamental sources of EU law, except for the declaration that is an annex to the Treaty of Lisbon. The EU Court established this principle of supremacy through its decisions, starting with Van Gend en Loos v Nederlandse Administratie der Belastingen in 1963, in which it held that EU law has direct effect because Member States have limited their sovereignty by creating a new legal system of international law, building on it with Costa v. Enel from 1964, in which the Court expressly stated that, in order for EU law to be effective, it must have primacy over any provision of national law, including constitutions. There are numerous cases in which the Court repeated this point of view, such as Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel, Amministrazione delle Finanze dello Stato v Simmenthal SpA, Marleasing SAv La Comercial Internacional de Alimentacion SA, etc. Of course, it should be emphasized that the principle of supremacy of EU law applies only in those areas in which states have ceded part of their sovereignty to the EU (single market, environmental protection, etc.).
Do all Member States accept EU law as superior to their own constitutional norms in the same way and do they all apply the binding decisions of European courts?
There is no consensus on this issue among the constitutional courts of the Member States. Some constitutional courts have no problem with the case law of the Court of Justice of the EU and accept the absolute supremacy of EU law over national law, including their constitutions. On the other hand, some courts, with the German Federal Constitutional Court leading the way, do not agree that the principle of supremacy also applies to the constitutions of the Member States. Of course, the question arises whether this position of such constitutional courts applies to all constitutional norms, and the answer is no. However, this question, for example, in the practice of the German Federal Constitutional Court has experienced an interesting development through its practice since the 1970s to the present day. First, with the famous Solange I decision, it rejected the application of the principle of supremacy of EU law over constitutional norms guaranteeing fundamental rights and freedoms (which it later changed due to the development of the case law of the Court of Justice of the EU). Later, it problematized this principle in terms of jurisdiction, i.e. who is authorized to decide on certain issues (the so-called competence-competence problem and the action of the EU Court outside its powers). The Italian Constitutional Court established its controlimiti doctrine because it believes that it must protect the fundamental principles of the Italian constitution, which was also accepted by the French and Spanish constitutional courts „if EU law infringes on the fundamental structure of their constitutions”. The Croatian Constitutional Court explicitly stated in one decision (U-VIIR-1159/2015 of 8 April 2015) that the Constitution is above EU law in terms of legal force, which it did not argue in more detail. The Polish, Romanian and Hungarian constitutional courts also have a problem with the principle of supremacy of EU law over the constitutions of the Member States. In all other matters, the principle of binding decisions of EU courts is generally accepted.
How was the principle of supremacy of EU law imposed or accepted in the first place and what does it mean, where are the limits of the supremacy of EU law?
As I said, it was „imposed” by the practice of the Court of Justice of the EU, which took the position that this principle has been part of EU law since its inception, although it only explicitly stated this in the aforementioned Costa v. ENEL decision from 1964. It is not disputed that EU law is superior, in those areas in which the EU has jurisdiction, to the norms of national law, otherwise the entire system would not be able to function. The matter became controversial when the Court of Justice of the EU extended the principle of supremacy of EU law to the constitutions of the Member States, which is currently the subject of numerous polemics in academic circles, as well as disputes between the constitutional courts of the Member States and the Court of Justice of the EU.
The European Convention on Human Rights plays a special role in the relationship between European law and Member States. What is its relationship with national constitutions? If the Convention is superior, then what about the right to national identity? How is this resolved between the ECtHR and the constitutional courts?
The European Court of Human Rights did not expressly create the principle of supremacy as the EU Court did. However, in the 2009 decision, Sejdić Finći took the view that the provision of the BiH Constitution (which is basically an annex to the international treaty – the Dayton Agreement) according to which only members of the three constituent nations can be elected to the presidency of BiH is inconsistent with the European Convention. In this sense, it follows that the Convention is legally superior to the constitution of a member state of the Council of Europe and that in such a situation the member state must amend the constitutional provision (to date BiH has not done so). Our Constitutional Court explicitly gave the Convention „quasi-constitutional” force, which means that it raised it to the same rank as the Constitution, given that a violation of the Convention automatically means a violation of the Constitution.
How to resolve these conflicts of „two rams on a log”, EU law and the constitutions of the nation states?
This conflict can only be resolved through a dialogue between the courts. Accordingly, the constitutional courts of the Member States and the Court of Justice of the EU must try to reach a compromise on the application of the principle of supremacy. Perhaps a good example is the so-called Taricco saga between the Italian Constitutional Court and the Court of Justice of the EU, in which the Court of Justice of the EU did not fully insist on the supremacy of EU law „due to the specific circumstances of the case”. The conflict between the German Federal Constitutional Court and the Court of Justice of the EU over the protection of fundamental freedoms and human rights was resolved, to a large extent, in the same way. Namely, a situation in which the Court of Justice of the EU and the constitutional court of a Member State cannot agree on something is extremely difficult to resolve and threatens problems in the very functioning of the EU.
The principle of equality is one of the fundamental ones, both in relation to individuals and between EU members. In both cases, equal treatment of the rich and the poor, the weak and the strong, the big and the small is important. What about the principle of equality in the context of the relationship between EU law and Member States, if in the event of a conflict between their rights, EU law applies?
Member States agree, as a rule, to the application of the principle of supremacy of EU law in relation to national law. In some Member States, this principle is absolutely accepted. In some Member States, this principle is not accepted, that is, their constitutional courts reject its application regarding constitutional provisions. However, even within those Member States, it is not insisted that EU law cannot „override” all constitutional provisions, but only those that the Member States, i.e. their constitutional courts, consider to relate to the fundamental constitutional values of their constitutional order, such as constitutional and national identity, etc. A different principle would lead to the impossibility of applying EU law as a supranational legal order and the impossibility of the continued existence of the EU. In this context, the principle of equality from Art. 4. The EU Treaty, which guarantees the equality of Member States before the Treaties, as well as their national identities, which are inextricably linked to their fundamental political and constitutional structures, including regional and local self-government.
Can the EU survive without respecting the equality of its members or is it possible for it to function with some (un)agreed exceptions to the principle of equality? In other words, what remains of the EU if the Member States do not give up part of their sovereignty?
There must be a „measure” in the renunciation of the sovereignty of the Member States. Of course, with respect to the fact that the Member States have voluntarily become „club members” and must play by the rules they have set themselves. However, it should also be emphasized that the principle of supremacy, as already mentioned, is not legally standardized, but rather established by the practice of the Court of Justice of the EU, which has been contested from the very beginning regarding its application to the constitutional norms of the Member States that have not, by joining the EU, lost their identity, tradition and what makes them specific subjects of international law. Therefore, it is indisputable that the Member States have given up part of their sovereignty by joining the EU, but it is debatable how much of their sovereignty they have thus given up. Some Member States, in my opinion, rightly insist that EU law cannot be superseded by certain constitutional norms which, in the view of those Member States or their constitutional courts, constitute their constitutional and/or national identity and which, by „overriding” them, would lead them to deny or question their own constitutional order. I believe that no Member State has agreed to cede so much of its sovereignty to the EU.
What is the conclusion of your work on the topic of strengthening the integrity of the EU in the context of respecting the principle of equality of the Member States?
The very idea of a national constitution as a specific expression of sovereignty is at the heart of the question of the extent of European integration (i.e., how much European integration do we need). All Member States joined the EU on the basis of their constitutional provisions. In this sense, the provision of Article 4 of the EU Treaty can be interpreted as a desire to protect the fundamental interests of the Member States in order to preserve diversity and preserve certain national competences that are essential for the Member States. Therefore, Art. 4 of the EU Treaty is not just a „political statement” but a legal basis for preserving the principle of equality. After all, as the German Federal Constitutional Court recently pointed out, the Member States are the „masters of the treaty” and they decide to what extent and to what extent EU law is applicable and enjoys priority in its application in the national legal order. Since such an attitude undoubtedly leads us to an insoluble conflict of jurisdiction between the national constitutional courts and the Court of Justice of the EU, the only solution is the aforementioned dialogue of the courts. Namely, the Member States and their constitutional courts should not be brought into „take it or leave it” situations, because such situations are very tense in the context of national sovereignty and call into question the fundamental principles of the EU as a supranational legal order, which should be avoided.
