The Future of Constitutional Conflict in the European Union: Constitutional Supremacy After the Constitutional Treaty
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Forty years after the European Court of Justice (ECJ) declared the law of the European Communities (EU law) to be the supreme law of the land in Europe controversy over the relationship between EU law and national law remains alive. To be sure, there are important issues that have been settled. National courts in all Member States have accepted that EU law trumps national statutes, even statutes enacted later in time. This may not be surprising for jurisdictions such as the Netherlands, which constitutionally prescribe the primacy of international law over national law. It is more remarkable in jurisdictions such as Italy and Germany, generally committed to the proposition that the status of international treaties in domestic law is the same as that of parliamentary statutes (and that in case of conflict the norm enacted last in time prevails). It is a major constitutional transformation in a jurisdiction such as the UK where the principle of parliamentary sovereignty presented a formidable barrier. But even if EU law is deemed to have greater authority than treaties generally, many national courts resist the ECJ's view that EU law is the supreme law of the land. They have instead held that they can set aside EU law on constitutional grounds under certain circumstances. It should be noted, however, that these courts do not rely on a simple and straightforward rule of national constitutional supremacy. Even if they resist the unconditional supremacy of EU law, they act under a strong presumption that they should apply EU law in case of conflict. Whether and under what circumstances exactly national courts will set aside EU law varies across jurisdictions. Here it must suffice to offer a very schematic overview of the point of conflict between the ECJ and national courts. This provides the basis for a more informed assessment of how the “Treaty establishing a Constitution for Europe” (hereinafter Constitutional Treaty) is likely to impact on these conflicts. There are three lines of national constitutional resistance that define possible arenas of future conflict. The first concerns fundamental rights. This issue dates back to the 1970s and is today probably the least virulent of the three. The story is well rehearsed: Originally the German and Italian constitutional courts asserted that they had jurisdiction to review EU law on the grounds that it violated national constitutional guarantees. As the ECJ further developed its fundamental rights jurisprudence, the issue became less of a concern. The German Court backed off and recently confirmed that it would not exercise its jurisdiction to review EU law on grounds concerning national constitutional rights, for so long as equivalent protection was provided by the institutions of the EU. The Italian Court too has not seriously engaged in reviewing EU law. Though fundamental rights remain a residual ground for some national courts to refuse enforcement of EU law, the probability that an actual conflict between EU law and national constitutional law will arise in this area is very low. The second concerns the issue of ‘Kompetenz-Kompetenz’. This is an issue that is relatively new—it came up as a corollary to the debates concerning subsidiarity and the appropriation by the Treaty of Maastricht of the language of citizenship. If a piece of EU legislation is challenged on the ground that it was enacted ultra vires - that it was enacted beyond the competencies conferred on the EU—who gets to ultimately decide the issue? Who gets to ultimately police the jurisdictional boundaries between the national and the European polities? The German and Danish highest Courts in particular have claimed that they have the residual authority (based on national constitutional law) to determine whether EU legislative acts are enacted ultra vires. These courts realize that the ECJ has the jurisdiction under the Treaty to review the legality of EU acts, which includes the review of whether the enactments are within the EU's competencies. But the ECJ is itself an EU institution that can act ultra vires by attempting to amend the constitution under the guise of interpreting it. If the ECJ simply rubberstamps the EU's legislative acts as falling within the EU's competencies, then national courts have a constitutional duty to step in and render such laws inapplicable in their respective jurisdictions, so the argument goes. The third set of issues concern the possibility of conflict between EU law and certain specific provisions of national Constitutions. Such conflicts have become increasingly frequent ever since the Treaty of Maastricht. Some of these cases concern conflicts between EU primary law and national constitutional law. The Maastricht Treaty, for example, establishing a right of EU citizens to vote and stand for elections in municipal elections anywhere in the EU collided with a Spanish constitutional provision specifically limiting to Spanish citizens the right to stand for elections. Such conflicts tend to be resolved in the context of the ratification of the Treaty: the issue is brought before the constitutional court and the necessary constitutional amendments are initiated by the respective political actors (or the Treaty is not ratified). (In Spain, for instance, article 13 of the Constitution was amended to make ratification of the Maastricht Treaty possible). More problematic are cases involving secondary EU law conflicting with specific national constitutional provisions. Examples include EU law requiring the opening up of the armed forces to women to a greater extent than the national constitution allows (such a conflict was resolved in Germany by amending the national constitution); or EU law requiring the recognition of certain degrees issued by private universities, whereas the national constitution prohibits the recognition of any but public institutions in its jurisdiction (this conflict was resolved by Greek courts by simply reading such a requirement out of EU law, ECJ precedent to the contrary notwithstanding}.
Source Publication
Altneuland: The EU Constitution in a Contextual Perspective
Source Editors/Authors
J. H. H. Weiler, Christopher Eisgruber
Publication Date
2004
Recommended Citation
Kumm, Mattias and Comella, Victor Ferreres, "The Future of Constitutional Conflict in the European Union: Constitutional Supremacy After the Constitutional Treaty" (2004). Faculty Chapters. 1075.
https://gretchen.law.nyu.edu/fac-chapt/1075
