This paper touches upon some issues selected from the highly complex system of relationships of Member States' constitutions, EU law, and the international legal protection of human rights, at the level of raising problems.
This time, we examine the issue of constitutionality from the point of view whether EU acts enforced in Member States can be reviewed for constitutionality in terms of the constitution of a given Member State concerned, which could result in the removal of such act from the legal system for being incompatible with the constitution.
Undoubtedly, one aspect of the above issue is the actual prevalence of the erga omnes effect of Member States' constitutions: whether there is any such thing at all today as the hegemony of the constitution in an EU Member State, or whether the constitution must share other rules derived from sources outside the constitutional powers of the Member State, which vindicate a quasi constitutional force to themselves.
So in examining this issue, the concept of state appearing to be dominant in the current phase of the development of the European Union should also be considered. At first sight, this problem also presents several aspects. Is there a common principle of constitutionality in the concepts of state of the member states of the European Union, and if so, what is it? And does the European Union itself - as a socio-political entity - carry the characteristics of statehood, and if so, to what extent and in what form? In other words, is there a margin for interpreting the European Union as a state, in respect of being a factual situation or an objective.
The most self-evident response would be that the European Union is not a state,[1] and it has no such objective, either, which could be derived from the Treaties. The EU offers an area for its citizens which has no internal borders and is based on freedom, security and justice, where the free movement of persons is ensured in conjunction with relevant measures on external border control, asylum, immigration, crime prevention and combating of crime.[2]
In order to achieve common objectives, Member States confer powers to the Union,[3] which powers are exercised via a sui generis institutional system and legal system established by a special type of international treaty.[4]
The historic novelty of the European Union lies precisely in this system of cooperation of states, established pursuant to special international law, but operated through a sui generis institutional system and legal system, rather than on the basis of international law.
Even at present, one of the fundamental questions of the EU is the location of the dividing line between international law and EU law in respect of its organisation and operation: for instance, to what extent the organisation and operation of the European Council is linked to inter-governmental
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cooperation - that is, international legal regulations - and to what extent to EU law.[5]
This issue involves another interesting aspect, namely the system of relations between the Council of Europe and the European Union, as the Council of Europe and its institutions were established and are operated under international law. However, operations of the institutions of the Council of Europe - the ECtHR and the Venice Commission - are closely interlinked with the law and institutional system of the European Union.
As opposed to the adjudication by the ECtHR, the Court of Justice of the European Union [CJEU] "defended" EU law from "being subjected to external control"[6]; at the same time, reports by the Venice Commission are regularly taken over and utilised by the European Commission in its own proceedings, especially if it intends to voice its dissatisfaction with the constitutional arrangements of Member States. So the standpoint of the CJEU supports the view that the ECtHR's operations would subject EU law to external control, the same way as it is lawfully done in the case of Member States. Thereby, Member States are subjected to double external control - CJEU and ECtHR -, as opposed to the law and institutional system of the Union. Therefore the autonomy of Member States -in the opinion of the CJEU - is not prejudiced in case of the parallel powers of the two European courts, but the autonomy of EU law is, in turn. The following standpoint of the CJEU can be derived from this: the autonomy of EU law is considered to be an almost absolute value which needs to be protected much more strongly than the sovereignty of Member States and which is actually required to be enforced in such an extreme fashion precisely because the EU has no sovereignty over Member States.
So on the one hand, we can see the endeavours of the CJEU to interpret EU law autonomously, independently of international law, where it can surely maintain its right to have the last word; and on the other hand, exactly the opposite can be observed in the relationship of the European Commission and the Venice Commission: namely that European law would actually call international law to help reduce its own Member States to obedience if the rules of European law do not provide sufficient room for action. This room for action can become necessary for EU institutions particularly if - in the opinion of the European Commission - there is a definite risk that a Member State will grossly violate the values set out in Article 2 of the Treaty on European Union [TEU], because in such a case a procedure under Article 7 of the TEU can be launched before the European Council.
The definition of the content of the values set out in Article 2 of the TEU - human dignity, freedom, democracy, equality, rule of law, human rights, including the rights of persons belonging to minorities, as well as pluralism, non-discrimination, tolerance, justice, solidarity, and gender equality - is not at all easy, particularly at the level of legal interpretation.
Actually, most of these concepts are included in the constitutions of Member States, therefore guidelines for their exact meaning can also be provided by the case law of the constitutional courts of Member States, provided that there is such a forum. On the other hand, international law - particularly the practice of the ECtHR - also contains alternatives for interpretation in respect of most of the above values; furthermore, certain guidelines for interpretation can also be provided by EU law, though to a smaller extent. All this is modulated by the fundamentally political content of basic values, which can obviously have a substantial impact on the legal content of the same values, formulated in parallel - but not necessarily identically - at various levels.
EU institutions utilise the interpretations of international law reflected in the reports of the Venice Commission. The Venice Commission is a body of specialists well-versed in the comparative analysis of the constitutions of European states, and as such, it is indeed capable of for declaring opinions on the study of the content of the values set out in Article 2 of the TEU. However, this expression of views can pass beyond the level of mere professional opinions if - via the European Commission - the European Council came to the conclusion on the basis thereof that Article 7 must be applied against a Member State, for instance if there were a definite risk in respect of the constitution of the Member State concerned that the values set out in Article 2 would be grossly violated.
In such a case, the products of the constituent power of a Member State could be qualified under EU law by the European Council - based on the opinion of a body operating on the basis of international law - as products which fail to comply with certain fundamental values of the Union.
Therefore, according to EU law, the double external control "of Member States" sovereignty does not suggest the violation of the TEU as opposed to identical EU law control.[7] EU law, also by reference to the principle of Member States' loyalty, can restrict Member States' constituent power, meaning that Member States' constituents are subjected to constitutional control by the Union in spite of the fact that no such rule is included expressis verbis in the TEU. Perhaps this is not only an accident, as such a type of restriction of Member States' constituent powers is basically not legal, but is based primarily on political, and only secondarily on legal grounds.
Actually, the fundamental values defined in Article 2 of the TEU are basically politically defined, just as the procedure under Article 7, which is also a procedure of political nature,
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since the TEU does not include provisions on seeking remedy at the Court against the Council's decision.
Protection of the fundamental values of the Union is indeed a very important - or, if you prefer, a fundamental - function of the Union, required to be enforced against Member States as well. Basically, this protection is enforced through the political control of Member States' constitutions in the cooperation of the European Commission and the Venice Commission. This mechanism having a political content operates in a legal framework provided by international and EU law, with Member States' participation. Another requirement from this control mechanism is to ensure compliance of Member States' constitutions with the common European value system manifested in both the ECHR and the Charter of Fundamental Rights. Basically, the system presented cannot be objected to as long as this double external control does not result in double standards, meaning that no direct or indirect negative discrimination is demonstrated against Member States in the enforcement of controls. In the functioning of the Venice Commission, however, some sort of theoretical differentiation can be perceived between the old and new Member States of the European Union[8] based on the "maturity" of democratic institutional system. Proceeding from the different historical traditions of Member States, it is easy for the Venice Commission to conclude that the propensity for democracy is different, as a matter of course, in each Member State: older Member States have already "proven themselves" on democracy, but newer ones still need to catch up. This negative discrimination is inconsistent with the fundamental principle of Member States' equality. At the same time, following from the political content of Article 7, this type of approach can hardly be excluded; nevertheless, the problem seems to be necessary to be detected.
The central point of the legal protection of the fundamental values of the Union is the idea of the absolute nature of the autonomy of EU law[9], coupled with the absolute interpretation of the doctrine on the supremacy of EU law, worked out by the CJEU. Such absolute perception of autonomy protects EU law against both international law and Member States' law,[10] ensuring the existence, the sui generis nature of EU law. It is a question, however, whether the sui generis nature of EU law can be protected only by the absolute interpretation of the supremacy of EU law; to put it in another way: whether autonomy can also be ensured in the event of the relative supremacy of EU law, so to say whether the doctrine of supremacy is necessarily absolute or can it be relative as well?[11] According to Bogdandy and Schill, this issue is the most difficult problem for the European legal area to be solved, both theoretically and dogmatically.[12] It can also be particularly dangerous to give up autonomy because EU law is executed by Member States,[13] so if the doctrine of the supremacy of EU law is weakened, the execution of EU rules would become dubious.
Nevertheless, pursuant to Article 4 (2) TEU, the Union respects the national identity of Member States,[14] so there is a domain in Member States' constitutional law that seems to evade the doctrine of the supremacy of EU law. This provision made it clear that in lieu of the traditionally hierarchic modelling of parallel legal systems, emphasis should be put on the multilevel and network nature of legal systems.[15]
According to László Blutman, it follows from this provision that the "Union may not change and may not violate unilaterally the constitutional arrangements and basic state functions of Member States."[16] On the basis thereof, in reply to the first question, the approach is obvious that the hegemony of Member States' constitutions[17] has terminated in EU Member States: Member State level constituent power is not capable any longer to define, erga omnes, the constitutional order of a Member State.
In addition to the constitutions of Member States, legal value and impact comparable to this is represented in Member States by the ECHR through the case law of the European Court of Human Rights interpreting it, as well as EU law,
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including the case law of the CJEU. A definitive political and legal impact may be exercised on Member States' constitutions by rule of law reviews by the European Council and the European Commission,[18] in it the Venice Commission has a political influence, through its reviews, whereas the latter has a legal influence, through the CJEU.
Due to the termination of the hegemony of Member States' constitutions, Member States' constitutional courts cannot necessarily protect the constitutional order of the given Member State, taken in the absolute sense.
Therefore the constitutional issues of EU Member States are primarily composite issues of constitutionality, qualified as "Verfassungsverbund" [constitutional federation] by Bogdandy and Schill on the basis of which they arrive at "Verfassungsgerichtsverbund" [multilevel cooperation of constitutional courts] as an option for practical solution.[19]
In order to approach this problem, primarily system of the interconnections of legal systems should be examined.
The state systems and legal systems of Member States are based on the constitutions of Member States, which rest upon the sovereignty of the Member State, that is, the sovereignty of the people forming a state. This sovereignty provides a basis for the constituent power of the Member State, representing the foundation of the state system and legal system of the given Member State.
As regards its input, this sovereignty is unified - identical with the people constituting the given state -, but as regards its output, it is divided as some part of its sovereignty is exercised by the Member State itself, and another part collectively with other Member States by way of conferral of powers to the EU, required "to reach the common objectives"[20] of the Union.
A double conclusion can be drawn from all this: the Union does not have sovereignty, and Member States do not transfer some part of their sovereignty to the Union, but only their competences associated therewith, they exercise the part of their sovereignty related to the achievement of EU objectives jointly with other EU Member States. Therefore, through the collective exercise of some part of the sovereignty of Member States by Member States, the Union receives conferred powers from Member States which are required for the achievement of common objectives. Thus, the Union is not a state, but an institutional and legal system established on the basis of international law, which is entitled and obligated to exercise the powers conferred to it by Member States to the degree necessary on the basis of the sovereignty collectively exercised by Member States.
The source of Member States' constituent power is their member-state sovereignty based on people's sovereignty, and the constitution is the most important manifestation of state sovereignty. Member States' national constitutions express and manifest the national identity of Member States, which forms an integral part of their fundamental political and constitutional arrangements, and regulates basic state functions, including the protection of the territorial integrity of the state, maintenance of law and order and the safeguarding of national security.
Pursuant to Article 4(2) of the TEU, the Union is actually obligated to respect this particular content of identity, meaning that a Member State's constitution - as the source of an integral part of national identity - may hardly be affected by the powers conferred according to the TEU.
So it does not necessarily follow from an EU Member State status at first sight that this status should affect state sovereignty in any manner. However, in accordance with the principle of Member States' loyalty[21], Member States are subject to a fairly broad range of open-ended obligations in the support and implementation of EU objectives, and the functioning of the European Union also support the view that behind the Member States' powers conferred to the Union there appears an autonomous authority, separated from the Member States, and showing the characteristics of sovereignty, as a source of EU law.[22] Together with the deepening of European integration, Member States' sovereignty as an "anti-integration" concept is becoming less and less desirable in the context of European law. In comparison, national identity is the result of a more "integration-friendly" approach. The fact that the TEU is not about respecting Member States' sovereignty but national identities as a step towards the self-definition of Member States, "shows the depth achieved in European integration and the fundamental change executed by a state as an EU Member State."[23]
This necessarily gives rise to the question whether, in case of a collision of Member States' constitutions and EU law, the rules of constitution of a Member State and their interpretation by the constitutional court of a Member State can have priority over competing EU rules, and if so, under what terms and conditions?
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In case of any collision of EU law and so-called simple law, functioning as a non-constitutional regulation, it is beyond dispute that the principle of the supremacy of EU law prevails according to the practice developed by the CJEU.
Nevertheless, as opposed to international law, EU law automatically becomes an integral part of domestic law even in the case of Member States applying a dual system, and consequently it occurs that in case of any collision with the rules of a Member State's constitution, they could be subject to the control of Member States' constitutional courts or superior courts with the same subject matter jurisdiction, in the same way as other Member State rules. So for instance, if the law of the European Union made it possible to sell genetically modified living beings in the internal market, such an EU regulatory provision would only be applicable and executable in violation of the Fundamental Law of Hungary, by reason of its incompatibility with Article XX(2) of the Fundamental Law of Hungary.
The conferral of powers to the Union can hardly be interpreted in a manner that it could also be extended to the exercise of powers running counter to or incompatible with the provisions of the constitution forming the basis of the sovereignty of the Member State concerned. Actually, it seems to be absurd that the Union could have a common objective[24] to force Member States to violate their own constitutions which is the basis of their sovereignty, since such a situation could severely violate the freedom and equality of Member States.
In summary: The use of the concept of Member States' sovereignty in a European legal context is not befitting,[25] on the one hand; and it is not expedient, either, on the other hand, as the sovereignty of the 28 Member States, taken separately, can hardly lead to a sensible result in an EU context. However, along the concept of national identity to be applied instead, appropriate room can be provided within the scope set out in Article 4(2) TEU in the framework of Verfassungsgerichtsverbund for court forums interpreting and applying Member States' constitutions. In this respect, the corresponding practice of the CJEU is also crucial in the sense to what extent the CJEU makes mention of the fact in its reasoning, in case of any collision of a Member State's constitution and EU law, that if the constitutional rule concerned is related to the constitutional identity of the Member State, how it is interpreted by the judicial forum qualified for the interpretation of the constitution of the Member State concerned. However, the CJEU's practice so far demonstrates exactly the contrary: the CJEU consistently refrains from any such type of reasoning or scrutiny.[26]
Thus, composite constitutionality and judicial dialogue will remain a European scenario impossible to bypass for long in the 21[st] century. However, its actual content should be discussed in depth, and all possible views are required to be clashed. Nevertheless, the absolute notion of the supremacy of EU law by the CJEU prevents Member States' constitutional court forums from interpreting national identity under Article 4(2) TEU, which can lead to a CJEU monologue rather than court dialogue, thereby resulting in a constitutional deadlock.
The only solution is in-depth judicial dialogue - Gerichtsverbund - Verfassungsgerichtsverbund - to be established and maintained, by way of mutual compromises. As soon as Member States' constitutional courts focus on national identity rather than on Member State sovereignty in an EU legal context, the CJEU could also consider concentrating on the relative interpretation of the supremacy of EU law - rather than its absolute interpretation - in the course of the application and interpretation of Article 4(2) TEU in case of any collision of Member States' constitutions with EU law, and in this framework of interpretation, Member States' constitutional court forums could also expound the precise content of national identity in an EU legal context. ■
NOTES
[1] A reference is made to this by Court advisory opinion no. 2/2013, section 156: "And these modifications are actually justified by the circumstance that, contrary to all other contracting parties, the Union cannot be considered as a state by nature in terms of international law".
[2] Article 3(2) of the Treaty on European Union [TEU].
[3] Article 1 TEU.
[4] Court advisory opinion no. 2/2013, section 157: "As the Court has established several times, the Treaties of the Union created a new legal order with its own institutions by derogation of customary international treaties, to the benefit of which states restricted their sovereign rights in an increasing number of areas, and the subjects of which not only include these Member States but their citizens as well (see in particular: Van Gend & Loos judgement, 26/62, EU:C:1963:1, p. 23; Costa-judgement, 6/64, EU:C:1964:66, p. 1158; 1/09 opinion, EU:C:2011:123, section 65)."
[5] See also Fabbrini, Federico: States' Equality v States' Power: the Euro-crisis, Inter-state Relations and the Paradox of Domination. Cambridge Yearbook of European Legal Studies (17) 2015/1. pp. 3-35. DOI: https://doi.org/10.1017/cel.2014.1, Published online: 03 March 2015.
[6] This external control means control of the European Union and its institutions by the European Court of Human Rights set up by the Council of Europe, which, according to the Court, is incompatible with the Treaty. See advisory opinion no. 2/2013. 181.
[7] This reference is made to the decision of the Court as expounded in advisory opinion no. 2/2013.
[8] Varga Zs., András: Alkotmányos identitás és a demokrácia kora [Constitutional identity and the age of democracy] (in publication): "In the practice of the Venice Commission, there is an emphasis on the formal distinction between "old" and "new" democracies. It is expressly declared among constitutional rules on courts, for instance, that certain rules can be applied in "old" democracies which are unacceptable in »new« ones." Cf. CDL-PI(2015)001, Compilation of Venice Commission Opinions and Reports Concerning Courts and Judges, section 2.2.3.1. Basis of reference: CDL-AD(2007)028, Report on Judicial Appointments by the Venice Commission, §§2-3, 59 and 12-17. Apart from the fact whether such distinction can be maintained at all, scope for action is clearly different for the two groups of countries: the new ones may not refer to the rules and practice of the old ones because what one may do the other may not. The new ones' own traditions can be used even less as a reference as tradition as such cannot even be interpreted in "new" democracies.
[9] The problem can be described by both a discursive and exclusive approach to the autonomy of EU law; according to some standpoints, in advisor's opinion no. 2/2013, the Court coted for the exclusive approach, which is reluctant "to accept as a matter of principle that there are other courts with their own jurisdiction". See. Pirker, Benedikt H.-Reitemeyer, Stefan: Between Discursive and Exclusive Autonomy - Opinion 2/13, the Protection of Fundamental Rights and the Autonomy of EU Law. Cambridge Yearbook of European Legal Studies (17) 2015/1. pp. 168-188.
[10] Advisory opinion 170.
[11] According to Armin von Bogdandy, this is that major opposition about, which lies between the interpretation of the law by the Court, on one side, and Member States' constitutional courts - or in the absence t hereof, court forums with the same powers - on the other side; the former interpret primacy to be absolute, the latter as something relative. See. Bogdandy, Armin von-Schill, Stephan: Die Achtung der nationalen Identität unter dem reformierten Unionsvertrag Zur unionsrechtlichen Rolle nationalen Verfassungsrechts und zur Überwindung des absoluten Vorrangs. Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, 2010. pp. 702-733.
[12] Bogdandy-Schill 2010. p. 702.
[13] Cf. Orbán, Endre: Ügynökprobléma - az Európai Unió állapotának egy lehetséges diagnosztikája. [Agent problem - a possible diagnostics of the status of the European Union] Available at: http://jog.tk.mta.hu/blog/2015/11/ugynokproblema (Downloaded: 13.01.2016.).
[14] Cf. Sulyok, Márton: Nemzeti és alkotmányos identitás a nemzeti alkotmánybíróságok gyakorlatában [National and constitutional identity in the practice of national constitutional courts], in: Jakó Mira Anna (szerk.): Nemzeti identitás és alkotmányos identitás az Európai Unió és a tagállamok viszonylatában. [National and constitutional identity in the relationship of the European Union and Member States] SZTE NRTI, Szeged 2014. pp. 44-62.
[15] Bogdandy-Schill 2010. 704.
[16] László Blutman: Az Európai Unió joga a gyakorlatban. [EU law in practice] HVG - ORAC, Budapest, 2014. p. 12.
[17] Apart from the charta or non-charta nature of the constitution.
[18] Communication from the Commission to the Parliament and the Council on the EU framework to reinforce the rule of law (COM (2014) 158 final).
[19] Bogdandy-Schill 2010. pp. 704-705. quoting Voßkuhle: "So setzt sich in der Verfassungsrechtswissenschaft zunehmend die Vorstellung von einem Verbund zwischen unionalem und mitgliedstaatlichem Verfassungsrecht durch, in dessen Rahmen EuGH und nationale Verfassungsgerichte Teile eines Verfassungsgerichtsverbunds bilden."
[20] Article 1 TEU.
[21] Article 4(3) TEU.
[22] 2/13. advisory opinion 166.
[23] Bogdandy-Schill 2010. 709.
[24] TEU Article 1, sentence 1.
[25] The lack of befittingness can be caused by the fact that the Union cannot have sovereignty - not to be declared at least - as the demos is missing from it, therefore it is just as impolite to mention Member States' sovereignty as to talk about ropes in the house of a hanged person.
[26] Case C-409/06. Winner Wetten GmbH versus Bürgermeisterin der Stadt Bergheim [2010] EBHT I-08015, section 61: "It is not allowable that the provisions of national law - even at constitutional level - should detriment the unity and efficiency of EU law." For a similar argumentation, see section 59 of the reasons in case C-399/11. (Stefano Melloni versus Ministerio Fiscal).
Lábjegyzetek:
[1] The author is PhD; Constitutional Judge.
Visszaugrás
