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 rights

a. Fair question in the 60s as at the time, the ECJ basically dealt with
economic freedoms and what if one of those breached fundamental
rights
2. 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.