In the ECJ We Trust: The Authority of EU Law in the Context of Constitutional Conflict

“In God We Trust” - the motto that inspired a nation built on the paradox ‘out of many, one’ could be construed as the wish for ‘divine goodness and order in the universe’.¹ It entails the full recognition of a supreme power. However, the wording does not convey blind obedience, nor does it suggest a contract between equals. Instead, “trust” is rooted in delegation; it boils down to the investment of confidence. Another aspect here is the acknowledgement of abilities of a higher standard than one’s own. Thus, trust is the source of authority.

The idea of entrusting someone with the power to make a judgment as to right and wrong on one’s behalf is understandably met with apprehension. To an extent, it is justified here as the deity in question is said to be the original paragon of man and is naturally superior, but what if the roles were reversed – the “mortals” crafting a “god” out of their collective images? The hierarchy is jumbled up. Conjuring justice out of this power struggle is a perpetual challenge of the legal order of the EU.

The aim of this piece is to trace the channels of trust down to the genesis of the authority of EU law. The discussion will take place in the context of the constitutional conflict between the ECJ and the national constitutional courts, where trust will be tested and legislative power delimited.

Challenging the Authority of EU law - Constitutional Conflict

The greatest trial for the authority of EU law, and thus the trust in the ECJ, was identified by Damien Chalmers, Gareth Davies and Giorgio Monti² as the interaction between the ECJ and the national constitutional courts. It may now be useful to examine the three ‘lines of national constitutional resistance’ in the constitutional dialogue that Mathias Kumm identifies – constitutional rights, Kompetenz-Kompetenz and other specific constitutional provisions.³

The first concern, promulgated mainly by the German constitutional courts, was reflected in the Solange jurisprudence, and the rule to date is that the national constitutional courts will not question the constitutional status of EU law as long as the protection of fundamental rights it provides is functionally equivalent to that enshrined in the national. This is expected to radically minimise the chance of an actual confrontation between the courts.⁴ The second factor is the issue of Kompetenz- Kompetenz, the roots of which go down to the concepts of subsidiarity and European citizenship. The key question is who possesses the ultimate authority to decide on the scope of the EU competences. Both the national constitutional courts and the ECJ compete for this authority.⁵ And last but not least – concerns regarding specific provisions, such as the problem of granting women access to the armed forces in Germany. Resolution usually is found in treaty ratification - at the cost of potential constitutional amendments, though such conundrums are rare to arise.⁶

This piece will adopt Kumm’s three-limb analysis to look at the response of national constitutional courts: European constitutional sovereignty (ECS), unconditional national constitutional sovereignty (UNCS), and Constitutional Tolerance (ConstT).⁷

To start off, the essence of ECS is in the absolute acceptance of the judicial stance of the ECJ, with functionality being at its root. EU law is seen as the ultimate form of law, dominating even over national constitutions. It is no surprise that the principle enjoys little popularity among Member States. Such a total surrender of power deprives the national judicial system of the checks and balances a constitutional court provides, leaving it too open and vulnerable.⁸ It is an “allor- nothing model” of trust, the choice being “all”.

The second option, UNCS, is located at the other end of the spectrum, where upholding the unconditional sovereignty of the national constitutional order is the highest priority. EU law is denied any special status other than that of a form of international law for the sake of national self-determination. However, Chalmers admits that this method is too extreme and neglects to take into account the opinion of the ECJ and the preponderance of members of the EU.⁹ Again, it is also an “all-or-nothing model” of trust, the choice being “nothing”.

What is left is constitutional tolerance – an intermediate principle between the two far ends of the spectrum. Here, recognition of the extraordinary status of EU law is granted, provided that the scope and contents of the authority of EU law is determined by the national constitutional courts. It is widely spread among the Member States – Italy, France, the United Kingdom, Germany, Denmark, Belgium, and Slovenia. The method is mostly dictated by the current practices of the judicial institutions in question.¹⁰ This model of trust is not based on an ultimatum such as “all-or-nothing” models above, but on a realistic appraisal of the necessities of judicial co-operation.

One approach to constitutional conflict is well exemplified by the Maastricht Judgment.¹¹ The ruling made it clear that the Maastricht Treaty is compatible with the German Constitution.¹² The Maastricht ruling is deemed to be the emblem of UNCS model of EU integration, a more sophisticated and mature manifesto.¹³ Julio- Baquero Cruz identifies a hard and soft interpretation of the judgment. The former entails entrusting the German Constitution with the final authority to decide on the validity and supremacy of EU law, making them wholly dependent on the act of ratification. The latter acknowledges the possibility of relative supremacy (with some exceptional limits) that is rooted in German law. The dialogue between the German Constitutional Court and the ECJ is conditioned by compromise and informal co-operation. According to this design, the linkage between norms and courts is non-hierarchical.¹⁴

The successor of this remarkable ruling is the recent Lisbon Judgment¹⁵ of the German Constitutional Court, which ultimately recognises the Lisbon Treaty. One relevant point is that the process of transfer of sovereignty is rooted in the principle of conferral and is thus reversible and subject to internal constraints. The authority of EU law is based on the will of sovereign states and is indirectly derived from national constitutional law. Another argument is that the Member States are the entities vested with the highest democratic legitimacy in the workings of the EU and should remain in charge of the spheres of ‘democratic formative action’ which must be of ‘substantial political importance’. Obviously, this is a step away from the canon language of indivisible constituent powers and state sovereignty.¹⁶

The German Constitutional Court delved into the reasoning, justifying conferral as the basis for Kompetenz-Kompetenz. This principle is the foundation for the gradual expansion of European integration. Thus, the authority of the EU is grounded in the sovereign actions of the Member States which who will have delegated powers to the union of their own free will. This transfer is limited in nature, fixed in scope and has the potential to be revoked. The national systems and the EU have distinct hierarchy of norms. This is not to say they exist isolated from each other - clashes arise where there is an overlap, after all. However, their co-existence is problematic because a stale mate of ‘right against right’ is inevitable unless one of the systems submits to the other. Unfortunately, the Lisbon Judgment offers no resolution or announcement of a final winner, it is a mere contestation of the mindset of the competing forces, who simplified - agreed to disagree.¹⁷

Ultimately, in the current environment of legal uncertainty, where the Treaty is silent and the ECJ is wilful, it is left to member states and scholars to decide upon their own preference of the three aforementioned options. Florence Giorgi and Nicolas Triart emphasise a particular form of pluralism. In their world, “through the looking-glass” supremacy is seen as circumstantial and plural. The most valuable part of their contribution to the discussion is the three models of response by the national courts, which will now be discussed in more detail.

Firstly, the ‘assumed resistance’ by the German Constitutional Court is presented. The result is that ‘the pyramid is redrawn’, where, instead of having the German legal order strive to meet the constitutional standards of the union, the EU is expected to rise up to the occasion by upholding the German ideal. ¹⁸At this stage, one Member State is setting the bar for the entire union by setting the judicial negotiations on familiar domestic grounds. Thus, control is underhandedly slipping away not only from the ECJ, but also indirectly from other Member States, who operate under the presumption that common progress is what is desired by all of the twenty-seven Member States. Perhaps it could be argued that it is for the noble purpose of setting a higher standard, but who is to say the rest of the Member States are prepared to take that drastic leap, instead of taking their time as a group?

The second method is the Spanish experience of ‘declaration of good intentions’. The Spanish Constitutional Court, unlike the German one, was insistent on exhausting every Euro-friendly solution before taking any drastic measures. It succeeded in exploiting an ingenious loophole in ECJ’s judicial reasoning by making a distinction between supremacy and primacy:

‘Primacy and supremacy are categories which develop in differentiated orders. Primacy, in that of the application of valid norms; supremacy in that of the procedure for the production of rules. Supremacy is based on the superior hierarchical character of a norm and, for this reason, it is the source of validity for inferior norms (. . .) Primacy, in contrast, is not necessarily founded upon a hierarchy but rather on the distinction between the domains of application of different norms, all valid in principle but, however, one or more having the capacity to replace others by virtue of their preferential or dominant application motivated by different reasons (. . .) The supremacy of the Constitution is thus compatible with regimes of application that accord preference to the application of norms of an order different from the national one, provided that the Constitution itself has envisaged this’.²⁰

This innovation of the Spanish Constitutional Court is to be commended as a ‘remarkable attempt to bypass the hierarchical construction’, albeit a ‘partially abortive’ one. The ground for this dismissal is the apparent weakening of primacy, while supremacy becomes the equivalent of absolute primacy.²¹

A third approach, which is for example used by France, is described as ‘the art of navigation through Scylla and Charybdis’. It basically adopts a customised Solange approach, to match the pattern and instruments the ECJ traditionally uses in its doctrines. It is a very delicate and cautious method of circumventing conflict. However, the judicial reasoning is somewhat vague, twisted to fit Euro-expectations while at the same time maintaining national sovereignty.²² One cannot but ask if originality, productivity and truthfulness were left behind for the sake of convenience? If so, a misapprehension settles in – one that might cause a vicious circle of stale and outdated judicial ideas.

Another fascinating option in the arsenal of the ECJ may be brought to our attention, that of “constitutional tolerance”,(d which is described by Weiler as follows:

‘Constitutional actors in the Member States accept the European Constitutional discipline not because as a matter of legal doctrine (. . .) They accept it as an autonomous voluntary act endlessly renewed by each instance of subordination (. . .) When acceptance and subordination is voluntary, it constitutes an act of true liberty and emancipation from collective self-arrogance and constitutional fetishism: a high expression of Constitutional Tolerance’.²⁵

Giuseppe Martinico and Oreste Pollicino point out that the authority of the ECJ does not stand on its own, but depends upon the voluntary compliance of the Member States.26 And so, the ECJ cannot afford to lose the diplomatic battle with these opponents. The ECJ must make use of all of its creativity in finding and exercising self-restraint to keep the constitutional tolerance demonstrated by the Member States intact. What follows is a two-fold strategy employed by the ECJ is pursuing this policy.²⁶

The first-level strategy, named ‘the art of judicial persuasion’, mostly focuses on the interaction with the national judges as well as with the legislative and executive bodies of the Member States, to open up the preliminary ruling dialogue. The constitutional courts had to come up with a safe substitute form of co-operation that would allow the preservation of supranational integration.²⁷

The second-level strategy is that of ‘the constitutional actors of member states as interlocutors’. It is marked by the majoritarian activist approach under the cap of an effect-oriented analysis – the European judges get to choose from an array of possible decisions, to pick the one supported by the majority of Member States.²⁸

Let us examine the tumultuous relationship between the ECJ and the national constitutional courts. The ECJ took the trouble to prepare the terrain well by winning over the national courts and establishing solid jurisprudence in the field of EU law compatibility of national and international levels. Soon, these methods brought about the desired results, such as the ‘mutability’ of the national constitutional courts at the very beginning, drifting towards a more open attitude. However, one thing remains a constant – their refusal to abdicate from their role as the guardians of national identities. An extension of that is the “counter-limits theory” that suggests a strong resistance to the permeation of the monistic philosophy deeply into the national constitutional orders.³⁰Continued on Next Page »