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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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In the Sayn-Wittgenstein decision101, case involving a ban on registration and carrying of nobility titles, Austrian or foreign, in Austria as part of a person’s name provided in a statute (Law on the abolition of the nobility) of constitutional rank implementing a constitutional principle of equal treatment and compatibility of this ban with the freedom of movement in the EU as regulated in Article 21 TFEU, the ECJ invoked Article 4(2) for the first time. However similar to some of the cases mentioned before, the ECJ decided that an encroachment on the freedom of movement under Article 21 through such a ban in a member state can be justified and is proportional, determined by the ECJ itself, on public policy grounds while invoking the duty for respect of the national identity of member states only as a secondary argument. Additionally, the reason for such an outcome of this case can be also explained through the clear and explicit decision of the Constitutional Court of Austria upon the matter declaring an act by the Austrian authorities different from the aforementioned ban as unconstitutional. Under such circumstances, any other outcome of this case would put the ECJ on line of direct confrontation with the Constitutional Court something that it obviously tried to avoid also by invoking Article 4(2). Due to the potential broader implications and importance for the central issue at stake in this paper of this Mayer, WHI - Paper 2/06, p. 8.

ECJ 22 December 2010, Case C 208/09, IIonka Sayn-Wittgeenstein v. Landeshauptmann decision, the impact on the primacy and authority of EU law, it will be more thoroughly discussed in the last section.

In contrast to the previous cases in Michaniki102, case involving a question of (in) compatibility of a constitutional provision and an internal market directive, the ECJ did not follow the same approach as the constitutional provision at stake was not of the same importance as the ones regulating fundamental rights103. As a matter of fact the court did not put any attention to the constitutional dimension of the case and it basically trivialised the meaning of the respective constitutional provision104. But, is it up to this court to decide which constitutional provision is trivial for the EU law? Exactly this question draws on the conclusion that “a risky enterprise to project an EU ranking of values onto national constitutional law”105, which is not quite in line with Article 4(2) CTEU, took place in this case.

The AG Maduro was cautious106 in his opinion, which practically followed the reasoning of the court in some of the previously mentioned cases, and he drew attention to the respect of national identity107 and the fact that this case involved a provision that was subject to a prior national constitutional assessment108. He affirmed the national courts’ discretion to rule upon the meaning and scope of such provisions which is subject to judicial review in regards to assessment of the proportionality of the specific national provision109.

By taking this view Maduro alluded to the sensitivity of the issue and considerations that needed to be taken into account in the application of the proportionality test even though, just as the ECJ itself, he did not really go into the Greek context which raises the concern for the appropriateness of the finding.110 The ECJ, on the other hand, in its decision ignored most of these crucial points and applied the principle of primacy of EU law as articulated in International Handelsgesellschaft by which it suggested the inconformity of the national constitutional provision with the specific directive. The decision was not warmly welcomed and it underwent some criticism also because it was made in a particularly sensitive moment ECJ 16 December 2008, Case C-213/07, Michaniki AE v. Ethniko Simvoulio Radiotileorasis.

Besselink, supra note 10, (48).

Kosta, EuConst, 5, (2009), 501 (510).

Besselink, supra note 10, (49).

Opinion A.G. Maduro of 08 October 2008, Case C-213/07, Michaniki AE v. Ethniko Simvoulio Radiotileorasis, opening remarks point 1: “What makes the present case unusual, however, is the fact that the national legislative measure in question is a constitutional provision. Should this fact affect the response to be given?”.

Ibid. para. 31.

Ibid. para. 30.

Ibid. para. 34 and 35.

Kosta, EuConst, 5, (2009), 501 (512).

which could arguably have raised the gap between the ECJ and national constitutional courts in the context of the Lisbon decision of the FCC111.

Comparing Michaniki with Sayn-Wittgenstein, Omega and other related cases one can notice certain patterns that could be illuminating. Namely, when fundamental rights are concerned the ECJ seems to be rather ‘cooperative’ and accepts and adheres to the discretion of national courts to determine the meaning, scope and importance of the specific legitimate interest that is the fundamental constitutional right. If, however, other constitutional provisions are concerned the ECJ is not willing to be so resilient. Bearing in mind that the constitutional identity does not only include fundamental rights but also some other elements, it will be difficult for the national constitutional courts and the ECJ to resolve issues related to the respect for national identity.

C. National identity clause and the absolute primacy of EU law: to have the cake and eat it?





Discussing the questions of who is to decide on the national identity and to determine the limit that it represents for EU law in the previous section it is evident that constitutional courts and the ECJ are not on the same page. Nothing else can be expected because the answer to these questions significantly impacts the fundamental doctrine of primacy of EU law.

Primacy is one of the cornerstones of EU law112. Although it has no any explicit treaty basis, despite the several attempts, it has been established and justified by the ECJ, in its landmark decision Costa v. ENEL, with the independence, uniformity and efficacy of the EC law113. In Internationale Handelsgesellschaft the primacy has been clarified to include also the precedence of EC law over national constitutions. This last point has been the bone of contention between the national constitutional courts and the ECJ ever since.

While primacy of EU law over national legislation has been accepted by the national constitutional courts from the outset, the primacy of EU law over constitutions, or at least their fundamental provisions, has been continuously and persistently challenged114. The arguments are basically founded on the source of authority of EU law in the national legal Ibid. p. 507.

More on primacy see Pernice, in: The Past and Future, 47, also Chalmers/Davies/Monti, EU Law, pp.203-210.

On difference between supremacy and primacy see Mayer, WHI - Paper 2/06, pp. 3-5.

Cf. Harlow, in AJCL, 339, (358)“ Supremacy is buttressed by the ingenious use made by the ECJ, Judgment of the simple obligation imposed on Member States by EC Art. 10 (ex 5) "to take all appropriate measures" to fulfil their Treaty obligations”.

Here the interpretation and consequences of Declaration No. 17 are not discussed.

systems and that is, in the view of these courts, the constitutions themselves. Therefore they cannot agree on this type of emancipation of EU law particularly not through a principle that has been developed by the ECJ and without a legal basis in the treaties. On the other hand, they consistently declare the openness of the national legal order and their commitment to EU law since this is also an obligation coming out of constitutional provisions.

Interesting aspect of this development is the occurrence of what is to be referred as the ‘duality’ of constitutional provisions. Namely, the constitutional courts have insisted and put the emphasis on the ‘core provisions’ whenever a matter related to EU law finds its place before them. It could be implied that it is the red line they are not willing or able to cross even by invoking a European-friendly interpretation of these provisions which in essence would mean their tacit amendment. Thus phrases such as the ‘material core’, ‘constitutional identity’, and ‘fundamental principles’ are a common feature of the reasoning of national constitutional courts in determining the limits of the application of EU law, that now also found their clearer articulation in EU law through Article 4(2) CTEU. One can argue, judging by the attitude of constitutional courts and their interpretation of national identity clause, pre and post Lisbon, that they see the national identity clause as the ‘weak spot’ of primacy of EU law115. Perhaps a clear signal was sent by the FCC in the Lisbon decision by reserving to it, within the national legal order, the duty to define and protect the constitutional identity and by it avoiding the possibility of being circumvented by lower courts through preliminary references to the ECJ116.

The ECJ does not lag behind and mirrors this firm position. Not only has it avoided invoking the national identity clause but the ECJ has just recently, September 2010, affirmed its positions on the absolute primacy of EU law by referring to Internationale Handelsgesellschaft117. Yet the Kadi118 decision could prove to be good argument for constitutional courts to argue the double standards applied by the ECJ in respect to fundamental principles of the EU law vis-a-vis the fundamental principles of the national constitutions119. Something that the FCC did not fail to notice and mention in its Lisbon decision120. On the other hand, even if the ECJ would start invoking Article 4(2) CTEU and abide by its duty, it is not certain that there will be no reaction from the constitutional Chalmers/Davies/Monti, EU Law, p. 201.

FCC, Lisbon, supra note 75, para. 241 and in Ziller, EPL (2010), 53(71).

ECJ, Judgment of 8 September 2010, Case C-409/06 Winner Wetten GmbH v. Bürgermeisterin der Stadt Bergheim, para. 61.

ECJ, Judgment of 3 September 2008, Joind Cases C-402/05P and C-415/05 P, Kadi and Al Barakaat v.

Council.

More on this point De Witte, ZÖR (2010) 65, 141 (153).

FCC, Lisbon, supra note 75,para. 340.

courts. In this sense the reserved mandate of constitutional courts to defend the constitutional identity might lead these institutions to review the decisions of the ECJ. True, it is not totally in line with the spirit and logic of the EU law under which definitely the ECJ should make the ultimate decision on the limits of EU law121 but one cannot expect for constitutional courts to rule contrary to their constitution when an interpretation accommodating both EU and national law interests is not feasible122.

The counter argument that it is practically limit on primacy that is declared in the Treaty, thus EU primary law, because of which the absolute primacy is not impacted, does not hold water123. As it was stated above the constitutional courts will claim for the last call of limits to the application of EU law on constitutional identity grounds. The claim will not be based, or not solely, on Article 4(2) CTEU but rather on their respective constitutions that often declare that the principles, part of constitutional identity, are not to be amended in a regular constitutional procedure. By this very fact it cannot be claimed that absolute primacy has not been impacted and that the ECJ should not adapt to it by paying due respect to the national identities.

It should be noted, then again, that constitutional courts have shown certain level of self-restraint by declaring that this type of review of EU acts and actions will occur only under exceptional circumstances124. Nevertheless, even if the chances of a conflict that could turn out to be unresolvable are very slim, such a possibility still exists and it could be just a matter of time before it occurs125. The developments concerning the Data Retention directive might prove to have such a ‘potential’.

This secondary EU legislation is in the middle of a possible conflict between the data retention procedures as implemented by the Member States and the fundamental rights, inter alia the secrecy of telecommunications. Three constitutional courts have declared the domestic implementing acts as unconstitutional. Particularly important is the FCC decision as a first case in which ‘identity control’ was applied126.

Mayer, WHI - Paper 2/06, p.8.

Even in Tomuschat, Lisbon, ZaöRV 2010, 251(279).

Kumm/Comella, Int'l J. Const. L. (2005), 473(476, 488).

ICC, Fragd, supra note 63, (657), “highly unlikely”, FCC, Lisbon, supra note 75,para. 340, “exceptionally”, CCC, Treaty of Lisbon I, Decision PL. US 19/08 of 26 November 2008, paras. 84, 110 and 139, “exceptional cases”.

Interestingly this has also been noticed by the ICC as far as 1989 in Fragd case where it stated: “Such a conflict, whilst being highly unlikely, could still happen”. Fragd, supra note 62, (657), Federal Constitutional Court of Germany, 1BvR 256/08, 1BvR 263/08, 1 BvR 586/08 of 2 March 2010 para.

218, referring directly to the Lisbon decision: “It is part of the constitutional identity of the Federal Republic of Germany that the citizens’ enjoyment of freedom may not be totally recorded and registered, and the Federal Republic must endeavour to preserve this in European and international connections”. Translation taken from the FCC Press release no. 11/2010 of 2 March 2010.

Similar to the EAW case127, the FCC has chosen an elegant solution to the issue as it did not question the validity or applicability of the Directive but rather the German implementing legislation and thus avoided the preliminary reference to the ECJ. The conditions that were set by this court in order for an implementation act to be constitutional are very strict and for the most part hard to be met. As result infringement procedure against Germany has been initiated by the European Commission. Now it is up to the ECJ to decide whether this state has infringed its obligations in protecting its constitutional identity. If it decides against the member state, which seems likely to happen, then it will be more then interesting to see the reaction of the FCC, if there is any of course128.



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