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«Introduction Sovereignty, supremacy, direct effect, Kompetenz-Kompetenz, have definitely been the buzzwords in European constitutional law and they ...»

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However it did not stop here and went further discussing which competences and powers of the German state cannot be transferred to the Union under the existing constitutional provisions, a point which led some scholars82 to conclude that the notion of constitutional identity includes also some other competences of the state, enumerated in the Lisbon decision83. On the other hand, the authors that noticed this issue criticised the court’s stance as far-reaching84. Indeed, it is undeniably true that it is far-reaching but only if it is read in a way that directly relates the list of competences to the constitutional identity, as regulated in the treaty. An alternative reading of the decision seems to be more reasonable in this part. Challenging the afore-mentioned interpretation of the FCC’s reasoning, Reestman wrote “[t]hey (the five domains of state power) are, moreover, domains in which the chances of an encroachment of other principles belonging to the German constitutional identity seem particularly great” and “they are closely connected to it (constitutional “With a view to establishing a united Europe, the Federal Republic of Germany shall participate in the development of the European Union that is committed to democratic, social, and federal principles, to the rule of law, and to the principle of subsidiarity, and that guarantees a level of protection of basic rights essentially comparable to that afforded by this Basic Law...” Cf. Tomuschat, Lisbon, ZaöRV 2010, 251( 278) claiming that this provision has the aim of preventing antidemocratic forces taking over power.

On this see Ziller, EPL (2010), 53 (66-67).

FCC, Lisbon, supra note 75, para. 240 „...In this respect, the guarantee of national constitutional identity under constitutional and under Union law go hand in hand in the European legal area“ and para. 235: „The obligation under European law to respect the constituent power of the Member States as the masters of the Treaties corresponds to the non-transferable identity of the constitution (Article 79.3 of the Basic Law), which is not open to integration in this respect. Within the boundaries of its competences, the Federal Constitutional Court must review, where necessary, whether these principles are adhered to“ Geiger, in: Geiger/Khan/Kotzur, 5 Aufl. 2010, Art. 4 EUV, Rdn.3. Linking the constitutional identity with the powers enumerated in FCC, Lisbon, supra note 75,para. 260. Also see Puttler, supra note 12, Rdn.17 Para 252.“Particularly sensitive for the ability of a constitutional state to democratically shape itself are decisions on substantive and formal criminal law (1), on the disposition of the monopoly on the use of force by the police within the state and by the military towards the exterior (2), fundamental fiscal decisions on public revenue and public expenditure, the latter being particularly motivated, inter alia, by social policy considerations (3), decisions on the shaping of living conditions in a social state (4) and decisions of particular cultural importance, for example on family law, the school and education system and on dealing with religious communities (5).“ See paras. 253 – 260 where the court separately explains these five groups of decisions.

von Bogdandy, supra note 4, (724).

identity) via the principle of democracy” 85. It is also affirmed by Grimm that “the list fulfils the function of warning sign: touching these matters implies a danger to the identity of the Member States”86. This view corresponds to the one expressed by CCC in the Lisbon II decision where it demarcated the non-transferable competences from the elements of the material core87 and can be also traced in the wording of the FCC. Even though these competences are related to the democratic principle, by using the wording “particularly sensitive for the ability of a constitutional state to democratically shape itself(...)“ it is not firmly establishing them as inherent part of the constitutional identity and in light of Article 4(2) CTEU they cannot be seen in every case as the fundamental constitutional structures. It is in this sense that one has to bear in mind also the third duty regulated with Article 4(2) i.e.

the duty to respect the essential state functions in support of this interpretation88. The relation to the national identity clause is present. However it does not mean that these two duties for the Union are identical. The essential state functions do not have to be in every case part of the fundamental constitutional structures of the Member States. This is even more so when one notices that the court states that “principle of democracy... does not mean that a pre-determined number or certain types of sovereign rights should remain in the hands of the state“89. That such a reading of the Lisbon decision is not just an isolated case is shown by two other cases dealing with EU matter that followed this decision. Honeywell and Data retention decisions showed FCC’s restraint and narrow application of the principles introduced or restated in the Lisbon decision90.

Therefore the FCC’s case-law, especially the Lisbon decision, under this interpretation might also be seen as part of the general tendency of national constitutional courts. The question that remains open is how far the FCC as well as the other courts are willing and able to go both in light of their international obligations taken over through the EU treaties, which will be also reviewed by the ECJ, and their respective constitutional provisions. It appears to be evident by the number of cases that involve direct confrontation Reestman, supra note 8, p. 374 (386).





Grimm, EuConst, 5, (2009), 353 (368).

See Lisbon II paras. 111 and 112. The second paragraph begins with the words “[f]or the same reason”.

Geiger, in: Geiger/Khan/Kotzur, 5 Aufl. 2010, Art. 4 EUV, Rdn.4 referring to FCC, Lisbon, supra note 75, para. 351 and the way the new EU powers should be exercised in the future.

FCC, Lisbon, supra note 75,para. 248. See also Grimm, EuConst, 5, (2009), 353 (368).

FCC, Honeywell decision, 2 BvR 2661/06 of 6 July 2010, para. 65. See Mahlmann, 11 GLJ (2010), 1407, (1410). Data retention decision 1BvR 256/08, 1BvR 263/08, 1 BvR 586/08 of 2 March 2010. See Kaiser, EuConst, 6, (2010), 503. In Honeywell the FCC substantialy qualified the scope of ultra vires review thus avoiding identity control. Data retention it did not go too far on constitutional identity and identity control even though one might argue that there were strong grounds to do so or use ultra vires review.

with the EU law and the ECJ, and by the reasoning in their cases that surely a certain level of self-restraint is being applied.

I. ECJ and national identity clause

Perhaps Article 19 CTEU does not provide jurisdiction for the ECJ to determine the content of a specific national identity that is based primarily on the constitutional provisions of the Member States but a total exclusion of any type of jurisdiction over issues of national identity clause would be implausible91. In exercising its powers the Court has to confirm that the respective structures of national identity do not infringe the values of the Union set forth in Article 2 CTEU. Accordingly, this relation between the highest court instances of the two legal orders stemming out of Article 4(2) CTEU is often characterized as a “relationship of cooperation”92. But there is a standing dilemma how this cooperation is to be realised under the present circumstances of friction and contradictory holdings between the respective institutions.

The ECJ’s case-law does not impress with the direct invocation of the national identity clause. The national identity has played only a secondary role. There is not a single judgement of the ECJ where this court has drawn attention to the duty of Union organs to respect the national identity as articulated first in Article 6(3) TEU and then after this provision became justiciable under Article 4(2) CTEU only on one single occasion, the Sayn-Wittgenstein decision93, who’s importance is questioned. In the cases where previously the Advocate Generals have invoked these provisions the Court did not find it adequate to do the same94. Yet the Court, before the enactment of the Lisbon treaty, has implicitly, and only partly, recognized the Union’s duty to respect the national identity of the Member States. Basically it was only in cases involving the deviations from the fundamental freedoms of the Member States justified by the fundamental rights that the Court took into consideration specific constitutional provisions as interpreted by the national courts.

The first important case from this group is the Omega case. There are three main points from this case important for the issues at hand here. In this case dealing with Besselink, supra note 10,(45) and von Bogdandy, supra note 4, (707).

Besselink, supra note 10,(45) borrowing the wording of the FCC from the Maastricht decision, supra note 59.

See more on this point in Kirchhof, ELJ, (1999), 225.

ECJ 22 December 2010, Case C 208/09, IIonka Sayn-Wittgeenstein v. Landeshauptmann Opinion A.G. Maduro of 08 October 2008, Case C-213/07, Michaniki AE v. Ethniko Simvoulio Radiotileorasis, para. 30, Opinion A.G. Maduro of 20 September 2005, Case C-53/04, Cristiano Marrosu and Gianluca Sardino v.

Aziedna Ospidaliera Ospedale, para. 40 Opinion A.G. Kokott of 8.May.2008, Joined Cases C-428/06 to CUnión General de Trabajadores de La Rioja (UGT-Rioja) v. Juntas Generales del Territorio Histórico de Vizcaya and Others, para. 54., also Opinon AG Maduro of 16 December 2004, Case C-160/03, Kingdom of Spain v. Eurojust, para. 24 derogation from the freedom to provide services based on public policy- protection of human dignity as regulated in the German Basic Law-(1) the ECJ held that the protection of fundamental rights constitutes a legitimate interest within the public policy of the Member States and justifies derogation from the fundamental freedoms of EC. Restating on this point what by the ICC in Fragd95 already has been held, the ECJ declared that the legitimate interest pursued does not have to correspond to a conception shared by all Member States.

(2)The protection of fundamental rights as a public policy has to be interpreted strictly so that its scope cannot be determined unilaterally by each member state without any control by the Community institutions96.(3) Lastly, adding to the previous the ECJ held that such derogation from fundamental freedoms can be justified only if it passed the proportionality test. It is precisely at this last point that it relied heavily on the assessment of the Federal administrative court of Germany which can be interpreted as recognition for the exclusive jurisdiction of national courts to decide the content of constitutional identity, fundamental rights in this case, and for it to review this interpretation in light of EC/EU law. The same logic was followed in the later case-law. Laval97 and Viking Line98 cases are very illustrative in this regards. In the latter the ECJ clearly set the roles of both the national courts and the ECJ. Thus it can be concluded that basically the ECJ leaves it to the national courts to determine the proportionality of national acts while providing guidance for this discretion99.

The common denominator of this group of cases is that they all balance between the fundamental freedoms of the EU and the fundamental rights as regulated in national constitutions. Due to this fact one cannot be too enthusiastic because the ECJ is rather following the well established practice, basically since the Solange I of the FCC, of respect for fundamental rights that now are also partly incorporated into the Treaties with the Charter on fundamental rights. Nevertheless the degree of protection might turn out to be an issue and at this point national identity clause could play a role.

Fragd, supra note 63, (657), ECJ 14 October 2004, Case C-36/02, Omega Spielhallen- und Automatenaufstellungs-GmbH v.

Oberbürgermeisterin der Bundestadt Bonn, para. 30 This strict interpretation according to the court entails that “public policy may be relied on only if there is a genuine and sufficiently serious threat to a fundamental interest of society”. See also para. 31.

ECJ, Judgment of 18 December 2007, Case C-341/05 Laval un Partneri Ltd v. Svenska Byggnadsarbetareförbundet, paras. 91, 92.

ECJ, Judgment of 11 December 2007, Case C-438/05 International Transport Workers’ Federation, Finish Seamen’s Union v. Viking Line ABP, OÜ Viking Line Eesti, paras, 85-90. Paragraph 85 reads „...it must be pointed out that, even if it is ultimately for the national court, which has sole jurisdiction to assess the facts and interpret the national legislation, to determine whether and to what extent such collective action meets those requirements, the Court of Justice, which is called on to provide answers of use to the national court, may provide guidance, based on the file in the main proceedings and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment in the particular case before it.“.

See also Groussot, in YEL, 89, (117).

The crucial point of these cases is that the legal basis for allowing Members States to derogate from the application of the EU law was found in provisions other than national identity clause, namely, articles 39 and 46 TEC, or better said the latter were not read in conjunction with Article 6(3) TA. Maybe it seems that it does not really matter which of these provisions are being invoked as the legal consequences are the same, EU law is not applied to the situation at hand. However, the difference between them is that whereas provisions regulating exceptions in the application of the fundamental freedoms is totally within the jurisdiction of the ECJ, Article 4(2), as clarified before, is not. Crucially, the latter provision “clearly refers back to the Member States”100. It is not to be inferred from this view that the ECJ should invoke only the national identity clause, because that would not be sound, but rather to affirm the duty that it has under treaty provisions to respect the fundamental constitutional structures of the Member States as declared in their constitutions and interpreted by their national constitutional courts. Since the new national identity clause has entered into force only recently it might be true that the ECJ will adapt to the new meaning of this clause even though some recent developments do not give rise to that much optimism.



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