How Does European Union Law Fit into the World of Public Law? Costa, Kadi and Three Models of Public Law
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There is deep disagreement about how the law of the European Union (hereinafter: EU Law) fits into the world of public law. Is EU Law an integral part of international law? Or does EU Law establish an independent constitutional system? Is national law an integral part of that European system or does it remain an independent constitutional system? Disagreements about these questions are not just of interest to legal theorists. They give rise to high stakes legal controversy, when EU Law conflicts with either international or national constitutional law and courts are required to determine which of the conflicting laws should be set aside. Furthermore these conflicts provide a useful prism through which to study different claims about the structure of the world of public law. Such a prism helps sharpen the sense for what is at stake, when conceiving of the legal world in one way or another. Conflicts between EU Law and other laws arise in two types of cases. The first type concerns conflicts between the EU Law and the wider international legal order. Such a conflict has been the focus of the European Court of Justice's (ECJ's) recent Kadi decision. The question was whether the implementation by the EU of a UN Security Council Resolution could be made conditional on conformity with European fundamental rights standards, or whether the obligations derived from the UN Charter have primacy over all other international law, including EU Law. The ECJ, overruling a previous decision by the European Court of First Instance (ECFI), held that it was appropriate to subject the EU Regulation implementing Security Council resolution to European fundamental rights standards, effectively precluding the enforcement of a UN Security Council Resolution. That decision has triggered strong reactions, both affirming and critical. ls EU Law hierarchically subordinated to UN Law, as Art. 103 UN Charta might suggest? If not, does that mean that the constitutional law of the EU, whatever that happens to be, determines if and under what conditions UN Law is to be applied by the EU? Is there a third way to resolve this issue that does not involve establishing categorical primacy of one over the other? The second issue concerns potential conflicts between EU Law and member states' law, in particular member states' constitutional law. After the ECJ in Costa v. Enel declared EU Law to have primacy over all national law, including national constitutional law, most national courts have not accepted outright the position of the EC]. Instead many insisted that there are national constitutional red lines, guarded by national constitutional courts, which the EU must not cross in order for it to be implemented nationally. Nearly fifty years after Costa and an immeasurable amount of ink spilled describing and analysing the decisions by the ECJ and national constitutional courts, much remains in flux and the basic questions remain alive: should national courts accept that national constitutional law is subordinated to EU Law, as the ECJ claims? If not, does that mean that national constitutional law as interpreted by national constitutional courts establishes the conditions under which EU Law is enforced nationally? Is there a third way of answering those questions, that does not insist on the primacy of one over the other? If there are lines to draw in the sand and those lines are not simply derived from specific provisions of national constitutions, how should national courts go about drawing them? Both issues raise the question how European Law fits into the world of public law. The purpose of this chapter is not to report on the rich literature addressing each of these issues or, more ambitious, try to resolve them. It is to get a deeper understanding of them, how they are related to one another and why they seem so difficult to resolve. The deep, interminable, and seemingly incommensurable disagreement that exists with regard to these questions, I will argue, is the result of a basic disagreement over how to conceive of the world of public law and the foundations of legitimate public authority. Debates about how the EU is appropriately described as a legal and political subject and how it fits into the legal world are deeply tied up with different conceptions of the world of public law. More specifically there are three competing models of public law underlying these conflicts, generating three very different accounts of how European Law fits into the world of public law. I will distinguish between Democratic Statism, Legalist Monism, and Constitutionalism, with each model of public law playing an important role in the justification of judicial decisions in European legal practice and each connected to a different conception of public authority. In the following I will describe and analyse each of these models as they play out in practice and spell out their implications for the question how European Law fits into the world of public law. Ultimately I will argue that a Constitutionalist model of public law not only best incorporates and operationalizes the competing normative concerns in play. It also provides an account of public law that can reconstruct and justify the mutually engaged, deferential, and principled legal pluralism that is arguably the hallmark feature of contemporary European constitutional practice.
Source Publication
Political Theory of the European Union
Source Editors/Authors
Jürgen Neyer, Antje Wiener
Publication Date
2011
Recommended Citation
Kumm, Mattias, "How Does European Union Law Fit into the World of Public Law? Costa, Kadi and Three Models of Public Law" (2011). Faculty Chapters. 1067.
https://gretchen.law.nyu.edu/fac-chapt/1067
