Constructive Versus Destructive Conflict: Taking Stock of the Recent Constitutional Jurisprudence in the EU

Abstract

This article argues that constitutional pluralism is not a theory merely for times of equanimity, but crucially, in times of constitutional conflict. Given that it rests on the premise of regarding law as a dynamic, incrementally developing creature, constitutional conflict is no exceptional event, and represents an important element of the system's functioning. However, this does not mean that every point of conflict necessarily means progress for the pluralist system as a whole: it is possible to distinguish constructive from destructive conflict. In this respect, this piece will put forward a normative argument concerning the limits to which the auto-correct function of constitutional pluralism can stretch. In so doing, this piece will look at the recent jurisprudence of constitutional conflict at the EU and national level to demonstrate the limits of constructive conflict, as well as show how the example of Poland falls into the category of destructive conflict.

I. INTRODUCTION

[B]y contradiction, is how the world moves: Not like an arrow, but a boomerang. ¹

The last decade has been eventful for those following judicial interactions in the European Union (‘EU’). In the wake of the Euro crisis, the German Federal Constitutional Court and the Court of Justice engaged in a back and forth exchange concerning the limits that the German Basic Law imposes on European integration.² During the same period, in its constitutional review of the austerity measures demanded as part of bailout measures, the Portuguese Constitutional Court attempted to safeguard the high level of social protection enshrined in the Portuguese Constitution.³ Most recently, the German Court struck down the Ratification Act creating the Unified Patent Court (‘UPC’), arguing that the Bundestag should have enacted it by a two-thirds majority due to a structural shift in competences between the EU and the national level. The Court of Justice expanded the application of judicial independence to all activities of Member States, regardless of whether they are in the scope of EU law.⁴ This in turn had the consequence of obliging the Polish government to refrain from intruding in the composition and disciplinary procedures of judges, threatening the basic fabric of the multilevel constitutional order.⁵ The development in Poland resulted in a number of rule of law infringement proceedings taking place before the Court of Justice.

In this context, the Court of Justice, on the one hand, is convinced in the utmost value of effectiveness of Union law and is expecting all national courts to share its fervour. On the other hand, national courts performing constitutional review tend to prioritise their respective constitutions. Consequently, they have employed different methods of adhering to the requirements of EU law while at the same time fulfilling their original role of safeguarding the supremacy of the national constitution.

It will be the main argument of this article that constitutional pluralism is not a theory merely for times of equanimity, but also, crucially, in times of constitutional conflict. Given that it rests on the premise of regarding law as a dynamic, incrementally developing creature,⁶ constitutional conflict is no exceptional event, and represents an important element of the system's functioning. In my earlier work,⁷ I have argued that the system of constitutional pluralism is based on heterarchy,⁸ and has an in-built auto-correct function, which serves to accommodate points of conflict through mutual respect and sincere cooperation of all actors involved. However, this does not mean that every point of conflict necessarily means progress for the pluralist system as a whole: it is possible to distinguish constructive from destructive conflict. By way of conceptual introduction, Part II will offer a definition of the EU's constitutional sphere, with the aim of creating a thesaurus common to the EU and national levels of constitutional authority. Part III will offer an argument in support of a thick normative core of constitutional pluralism, building on the work of Miguel Maduro.⁹ In this respect, the position taken in this article will be openly normative, by determining the limits to which the auto-correct function of constitutional pluralism can stretch; and beyond which we are conceptually falling into what Jessica Lawrence calls the ‘descriptive fallacy’ of constitutional pluralism.¹⁰ The thick normative core of constitutional pluralism distinguishes constructive from destructive conflict. As I hope to show, convergent standards on EU and national levels of the ‘constitutional’ will still allow for ‘pluralism’, both substantively and institutionally. Moreover, strengthening the normative core of constitutional pluralism will result both in decreasing the ability of rogue states¹¹ to abuse it, and in increasing the capacity of the EU's constitutional system to address such abuses. Subsequently, this article will look at the recent jurisprudence of constitutional conflict at the EU and national level to demonstrate the limits of constructive conflict (Part IV). Part V will show how the example of Poland falls into the category of destructive conflict, and Part VI will conclude.

II. DEFINING THE EU CONSTITUTIONAL SPHERE

Legal academics have long faced the challenge of describing and assessing the nature of the European Union as a polity, specifically in relation to the well-established Westphalian¹² categories of states and international organisations. The struggle of calling the EU legal order a constitutional one stemmed from an almost natural assumption of states as constitutional orders, as opposed to international organisations based on public international law and created by the authority of participating states. Nevertheless, taking into account direct effect and primacy (ultimately constructing state responsibility beyond what the public international law sphere ever entailed),¹³ constitutional features of the European Union are no longer disputed,¹⁴ despite a more general reluctance in the literature to ascribe constitutionalist characteristics to entities beyond the state.¹⁵

The major transformative momentum in the development of the EU was the Maastricht Treaty, more precisely, the sharp decline in public support that was taken for granted during all the previous integration benchmarks.¹⁶ The public outrage translated into important judicial challenges to the ratification of the Treaty,¹⁷ where national courts asserted their right to review the transfer of competences to the EU, and remained firmly on the view that they are the Masters of the Treaties.¹⁸ In that respect, MacCormick concluded that law is an institutional normative order, the ‘principal example’¹⁹ being found in nation-states, but not restricted solely to them²⁰—they are only a species of a genus.²¹ For a normative order to be an institutional one (regardless whether the institution is rooted in a nation-state or another type of polity), it needs to possess the ability for the norms of the order to be applied to the situation they govern, which results in the self-referential quality of the system.²² Decades of development of the European Union and the self-referential nature of the acquis communautaire makes it impossible to reach any other conclusion than to recognise it as a ‘full-blown instance of an institutional normative order’.²³

The debate on the possible existence of sovereignty beyond the state aroused a great deal of scepticism, connected mainly to the problem of defining any non-state system as constitutional.²⁴ The fear sparked by the Maastricht Treaty revolved strongly around the threat to the democratic form of self-government by the people.²⁵ The argument, in short, goes: only ‘We the People’ are able to create the constitutional framework claiming ultimate authority in a given space, and no unit beyond the state can satisfy this requirement.²⁶ While the EU certainly does not establish its ultimate authority in the same manner as states do, the Court of Justice's development of a self-referential system of the Treaties, grounded in the doctrines of primacy and direct effect,²⁷ not only restrict Member States’ sovereignty²⁸ in the classic Westphalian sense, but also render the EU legal order ‘independent, autonomous and non-derivative’.²⁹ The EU's sovereignty is thus rooted in the creation of the autonomous, independent, and self-referential nature of the system of Treaties.³⁰

But does this mean that we can equate the EU's constitutional frame to that of a federation, as part of the legal scholarship argues? Lenaerts defines the common denominator of federalism to be ‘the appropriate balance between the federation and its component entities’.³¹ He further explains that integrative federalism, as a mode of constitutionalism that strives to unite diverse entities, can be applied to the model of the (then) supranational European Community.³² The Treaty provisions setting out the vertical division of competences between the EU and the Member States, as well as the manner of exercise of these competences by the Union institutions (including a strong Court of Justice)³³ have been interpreted as clear indicators of a federalist structure.³⁴ In addition, federalism is praised due to its applicability to any system of divided powers, and discards any sui generis approach as methodologically flawed.³⁵ Finally, the development of EU citizenship has been extensively addressed from the perspective of federalism, given its clear connection to multiple vertical levels of government and political association.³⁶

The crucial reason why federalism as a theory holds insufficient explanatory and normative power for the EU is because it fails to take into account national contributions to the EU constitutional landscape, resulting in conditional primacy of EU law.³⁷ For example, Lenaerts denies that the Lisbon Treaty diminishes any of the EU's federal features, since EU law retained a pervasiveness into national law, both through the obligation of national regulators not to legislate contrary to EU law, as well as due to a spill-over effect that EU law may have in the area of exclusive competences of Member States.³⁸ However, the position of the Court of Justice as the ‘high federal court’³⁹ in the EU is but one reality; national courts performing constitutional review have developed a reality of their own, supported by jurisprudence that at times outright contradicts that of the Court of Justice. Thus, federalism cannot capture the EU without being stretched beyond recognition.⁴⁰ Federalism is thus, in my view, unable to capture the complex relationship of contestation between the EU and the national level.

We are then left with one final question: if Member States retain their sovereignty claim to the ultimate say, as does the EU in areas of its functional sovereignty, is there a way to redress the incommensurability of claims by these two levels of constitutional authority? Maduro argues that state constitutionalism is but a ‘contextual representation of constitutionalism …’.⁴¹ In other words, how far can each of the levels of authority go in contestation before the constitutional frame is broken? For this, it is necessary to answer Jessica Lawrence's question posed to scholars of constitutional pluralism: ‘what the “common project” is, what types of conflicts can be resolved within it, and/or which metaconstitutional principles apply’.⁴² Constitutionalism can be defined as ‘a normatively ambitious project of establishing legitimate authority over persons that are ultimately conceived as free and equals’;⁴³ as ‘having an overarching normative structure’, where fundamental rights represent the normative expression of a constitutional system.⁴⁴ In the EU context, Shaw's four pillars of constitutionalism determine: (1) the nature of the polity; (2) the rule of law and its systemic properties;⁴⁵ (3) key values, principles, and norms;⁴⁶ and (4) the exercise and limitation of power of the polity.⁴⁷ Ultimately, thus, constitutionalism is a quality capable of existing in the EU as an institutional normative order claiming ultimate authority. In the next Part, I explore in more depth the content of the normative core of the EU's constitutional system, in order to find the edges of constructive conflict.

III. THE NORMATIVE CORE OF CONSTITUTIONAL PLURALISM AND CONSTRUCTIVE CONFLICT

Determining the normative core of constitutional pluralism cannot be answered without properly addressing the principle of primacy of EU law. Without going into the history of the principle of primacy and its development, this Part will demonstrate the expansions of the self-referential system of the Treaties by the Court of Justice, namely asserting its right to ultra vires and fundamental rights review, starting with Opinion 1/91, and concluding with Kadi and Opinion 2/13. This will lead us to the determine the substance of the normative core of constitutional pluralism. It is important to note here that while the formal source of inspiration in defining the normative core is found in formal sources of EU law, this does not mean that the source of national constitutional authority derives from the EU legal order. It is rather the other way around: national constitutional authority created the EU legal order, however, not without causing a permanent change on its own part.⁴⁸ The EU constitutional sphere as described in the previous Part thus necessitates an understanding of EU and national constitutional law as permanently enmeshed.⁴⁹ In Opinion 1/91, the Court finds primacy and direct effect to have resulted in constitutionalising the Treaties, based on the rule of law:

In contrast, the EEC Treaty, albeit concluded in the form of an international agreement, none the less constitutes the constitutional charter of a Community based on the rule of law. As the Court of Justice has consistently held, the Community treaties established a new legal order for the benefit of which the States have limited their sovereign rights, in ever wider fields, and the subjects of which comprise not only Member States but also their nationals … .⁵⁰

The Court's move is an HLA Hart-esque one,⁵¹ as it places the rule of law as the ultimate rule of recognition of the EU constitution. This in turn legitimises the system as a constitutional one and differentiates it from an international law one.⁵² In Kadi,⁵³ the basis for the appellants’ claims before the Court of Justice relied on a Solange claim of the EU: so long as the United Nations do not provide for an independent judicial fundamental rights review, the Union courts should make sure the implementing measures are fundamental rights compliant.⁵⁴ The Community is based on the rule of law, and any measure incompatible with the protection of fundamental rights is not acceptable.⁵⁵ Furthering the Solange logic, it concluded that the review mechanisms in the UN system are inadequate, and thus cannot prevent the Court of Justice to ensure fundamental rights protection by way of reviewing the implementing regulation.⁵⁶ The inspiration, or at least a strong resemblance to the different limits that national constitutional courts have placed on the principle of primacy is hard to miss when reading the Court of Justice positioning EU law vis-à-vis the acts of the UN, but also other actors in the international law arena.⁵⁷ The rights-based claim to ultimate authority was at the source of constitutional pluralism (initiated by Frontini ⁵⁸ and Solange I),⁵⁹ and it continues to provide a substantive basis for such claims.⁶⁰

The Court of Justice was able to resort to the dualist rhetoric in Kadi and use the ECHR as a shield⁶¹ to establish its own reputation in fundamental rights protection. Yet, the same argument turned into a sword in relation to a possible ECHR accession. The constitutional vocabulary is particularly present, obviating the Court's intention to place the EU's distinctiveness and autonomy at the centre of the argument. In this sense, the EU treaties are ‘unlike ordinary international treaties established a new legal order’⁶² which has ‘its own constitutional framework and founding principles, a particularly sophisticated institutional structure and a full set of legal rules to ensure its operation’.⁶³

The emphasis on the ‘constitutional’ is there for two important reasons—it extends the sovereignty vocabulary to the EU, and it underlines the EU's own capacity in fundamental rights protection. Accordingly, the Court of Justice developed a self-referential normative constitutional order, resulting in a plausible claim to ultimate authority,⁶⁴ overlapping in the same geographical space with that of the Member States and their courts tasked with upholding national constitutions. Thus, the EU's claim to ultimate authority by the Court of Justice (and the EU) is rooted in the autonomy of the EU's constitutional order, but also its independence and non-derivativeness. Accordingly, if we genuinely believe there is any such thing as sovereignty beyond the state, subjecting it to identical conditions as state sovereignty (namely popular representation) would be a contradictio in adiecto.⁶⁵

Based on this, it is necessary to explore what content found in the EU's constitutional sphere cannot be done away with for the system to function. In other words, defining the ‘constitutional’ determines the basis that cannot be questioned by different sites of ultimate authority; defining the ‘pluralism’ tells us how far can reasonable disagreement concerning the ‘constitutional’ go without turning into destructive conflict. Recalling Maduro's work on principles of contrapunctual law, constitutional pluralism's normative core includes those values and principles that ‘make it possible for the processes of justification of national and European decisions to be based on different arguments while their actual application leads to compatible decisions’.⁶⁶ He continues, ‘it is however necessary to create a set of rules that is shared by the different legal systems in putting forward and applying their different claims of authority’.⁶⁷ In order to ascertain what this set of rules in the EU's constitutional sphere is, Lenaerts and Gutiérrez-Fons explain:

[General] principles leave some room for constitutional values that differ from one Member State to another. … In this view, the ECJ cannot reply on general principles of EU law, particularly fundamental rights, as an unstoppable centripetal force that would ensure uniformity while destroying constitutional diversity.⁶⁸

In the same vein, Cloots lists a number of interpretative guidelines to both national courts with constitutional jurisdiction and the Court of Justice, in order to not only contain conflict, but also resolve it in a manner that will be respectful of the values, and ultimately constitutional orders, in balance.⁶⁹ Besselink and Ejisbouts explain that the judge faced with situations of constitutional conflict should not address it by ‘mere reference to the autonomy or the supremacy of his own legal order, nor by reference to legal hierarchy. He shall do so by reference to fundamental substantive norms valid in the wider circumscription …’.⁷⁰ In line with these points, the plurality of values agreed by all Member States and listed in Article 2 Treaty on European Union (‘TEU’) represent the normative core of constitutional pluralism.⁷¹ It is useful to cite the provision in full:

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

These values operate as the normative ideal of constitutional pluralism, without resulting in an ultimately monist solution. As the text of the provision itself states, the values listed therein are common to all Member States, and represent the basis for EU membership, in the same way as a geographical link to the European continent, satisfying certain economic criteria, etc. This does not lead to homogenisation of national constitutions and their content, but rather serves as a codification of their shared values, and reduces the incommensurability of constitutional concepts in substance.⁷² In other words, we may not be in agreement as to the precise extent of the rule of law, or how it influences judicial independence in one or another constitutional and institutional context, but we can be in agreement what falls outside its borders. In this process, Maduro stresses the importance of the discursive element between different sites of constitutional authority, who jointly and coherently strive to create the shared European legal space.⁷³

In its essence, the normative core of constitutional pluralism promotes a firmly cosmopolitan, rather than nationalist perspective. There is no normative reason why equality of Member States should take precedence over equality of EU citizens, and there is most certainly no basis for the treaties to be interpreted in this way. The Court of Justice has, since the early days of European integration, established the so-called ‘Simmenthal mandate’, according to which each national court must apply EU law to cases within their jurisdiction and protect the rights that it accords to citizens in their entirety.⁷⁴ Keeping the EU as a polity within the conservative confines of the principle of conferral and limited to a ‘compound of states’, in fact results in more power for the states, and diminishes the direct empowerment of their citizens to take ownership of the integration project; this tendency is aided by Member States’ governments but also those constitutional courts who employ the retrograde rhetoric of public international law.⁷⁵ So precisely to overcome the ‘Member States are the Masters of the Treaties’ logic,⁷⁶ equality of Member States should be read together with equality of EU citizens.

Sovereign equality of states means that once states sign up to a legal obligation in the international sphere, they are all equally bound to abide by it.⁷⁷ With the increase in the ability of international (and arguably, supranational) organisations to assume responsibility for carrying out the common interest of its members, it is becoming likelier that those members will decrease their insistence on their ‘sovereign status and, correlatively, to equality’.⁷⁸ Indeed, placing the individual as the ‘fundamental moral unit of concern’⁷⁹ demands a move away from the formalistic view of equality of Member States. The cosmopolitan literature emphasises the drawbacks that equality of states inflicts upon the equality of individuals:⁸⁰

… political equality among states is of value only so far as it contributes to justice as goal or as process. Political equality among states is not valuable for its own sake, and certainly cannot be regarded as a necessary condition in its own right for system legitimacy.⁸¹

Thus, the principle of equality of Member States is merely an indicator of membership, whereas the normative aim of European integration should be one of partnership.⁸² It is therefore regrettable that the Court of Justice has employed this logic in its press release following the Weiss II judgment of the Bundesverfassungsgericht, where it restated the jurisprudence concerning the preliminary reference procedure, concluding: ‘That is the only way of ensuring the equality of Member States in the Union they created’.⁸³ Yet, the preliminary reference procedure has for decades claimed success in allowing individuals to enforce their EU law rights against their governments.⁸⁴ This should remain the priority, as Article 9 TEU reminds us that: ‘In all its activities, the Union shall observe the principle of the equality of its citizens …’. Prioritising equality of Member States over equality of citizens because it currently appears politically useful may result in rather grave long-term consequences on some of the building blocks of EU law and the well-established benefits of judicial cooperation.

Furthermore, in order to understand how the ‘pluralism’ of ‘constitutional’ works, it is necessary to distinguish between institutional and substantive pluralism.⁸⁵ Institutional balancing is closely linked to the use of self-restraint, and is the first step to be taken once a national constitutional limit is invoked in a particular case.⁸⁶ If the specific case is before the Court of Justice, the use of institutional balancing will mean rendering a decision on which court is to take the final decision. Such an approach is well-known in the case law of the Court and, as Tridimas explains, the Court of Justice employs it regularly in what he calls ‘guidance’ and ‘deference’ cases.⁸⁷ In particular, the Court of Justice either gives guidance to the national court that is then finally to decide (guidance cases), or it leaves it entirely up to the national court to decide (deference cases). In deciding whether to rule on a certain issue itself, or leave it to the national court, the Court of Justice will be driven by taking into account the sensitivity of the case, which will condition the extent of self-restraint to be applied.⁸⁸ By contrast, when a case takes place before a national constitutional court, regardless of the fact whether the court submitted a preliminary reference or not, national instances will be wary of a possible constitutional conflict. In addition, any situation of a constitutional conflict is to be approached with great self-restraint, and in a manner open to European integration.⁸⁹

The institutional balancing—ie, the determination of which instance will ultimately decide the case, as explained in the preceding paragraphs—is followed by the substantive balancing of values in opposition in the particular case.⁹⁰ Surely, the result of the institutional balancing will serve as a strong indicator as to the extent of the substantive balancing that a particular court is to exhibit. In essence, when the Court of Justice defers to the national court on the ultimate decision, this undoubtedly means an endorsement for that court to protect the national value in question.

The pluralist nature of constitutional identity stems from its intrinsically heterarchical nature, as it does not impose an overarching European value over specific national values. In that respect, constitutional identity is in itself a contributing element to the pluralistic nature of EU constitutionalism, endorsing an equal position of a variety of national specificity claims.⁹¹ Such a view appears to outweigh the argument of Advocate General Cruz Villalón in Gauweiler ⁹² in favour of a converging European identity in a Solange-like trend.⁹³ There are several reasons to support this claim. First, the application of the Advocate General's view would create a hierarchical relationship between identity claims on the EU and the national level, thus increasing the possibility of constitutional conflict. A clear statement of hierarchy does not appear as something that national constitutional adjudicators would welcome, as their jurisprudence revolves around the reconciliation between the primacy of EU law, and the supremacy of national constitutions in their own territory.⁹⁴ Second, from an institutional point of view, respecting national particularities contributes to the mutual respect and cooperation between constitutional adjudicators and the Court of Justice, which would be jeopardised if a converging European identity were to replace the current understanding of the identity clause.

IV. RECENT EXAMPLES OF CONSTRUCTIVE CONFLICT

The aim of this Part is to better understand the contrasting demands stemming from primacy of EU law on the one hand, and from the supremacy of national constitutions, on the other. Namely, as I will aim to show, both are far less absolute than the courts interpreting them would have us believe. Rather, both levels of constitutionality are in a permanent relation of mutual influence, developing and changing incrementally through their interactions. In that sense, the famous statement that Member States are the ‘Masters of the Treaties’ is no longer accurate⁹⁵—rather, in some sense, the Treaties no longer have a clear master as once found in the international law sphere. The Court of Justice has famously taken to expanding the self-referential system of the Treaties.⁹⁶ However, while Member States would in principle be at full liberty to do so, it is almost impossible to imagine a treaty reform doing away with the cornerstone principles of EU law introduced by the Court of Justice. The same goes for national constitutions—the entrenchment of EU integration clauses therein⁹⁷ significantly restricts the extent to which constitutional review is to be conducted.⁹⁸ The aim of this Part is thus to underline some of these tensions, and demonstrate that individual instances of constitutional conflict under analysis form part of constructive conflict, and are not attacks on the existence of the entire EU legal order (destructive conflicts). In what follows, I will briefly reflect upon a number of cases decided on the EU and national level in order to demonstrate the constructive nature of those constitutional conflicts. The aim of this exercise is not to provide an in-depth analysis of each of the cases, but to point to the salient issues behind the constitutional conflict in place, and underline how they remain within the confines of constitutional pluralism's normative core.

A. Juízes Portugueses

In the context of the Euro crisis and financial assistance to debt-ridden Member States, the Court of Justice decided that a Memorandum of Understanding grounded in the European Financial Stabilisation Mechanism is justiciable in Juízes Portugueses.⁹⁹ This unlikely champion of legal accountability in economic governance owes its importance to the current salience of judicial independence in the EU.¹⁰⁰ Namely, the association of judges in Portugal challenged the austerity measure temporarily reducing their salaries, arguing it interfered with their independence guaranteed by Articles 2 and 19 TEU. The Court of Justice, arguably in need of establishing a legal precedent for its jurisdiction concerning the rule of law challenges taking place in Poland and Hungary,¹⁰¹ found that Article 19(1) TEU, which states that ‘the Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’, was engaged and the preliminary reference was admissible. Importantly, the Court of Justice declared judicial independence the cornerstone of the rule of law, expanding its application to all Member State action, regardless of the applicability of EU law in a specific case.¹⁰²

From the perspective of a national court, this may be seen as intrusion into the division of competences between the EU and the national level, and certainly the Court of Justice expanded its jurisdiction to hear cases concerning the rule of law and judicial independence. Upon closer inspection of possible interpretations of Article 2 TEU, there is nothing problematic in placing a rule of law and judicial independence obligation on all Member States at all times—precisely because this is the common constitutional core all levels of constitutional authority share. It forms part of the ‘constitutional’ in constitutional pluralism. And while it can be interpreted in a number of different ways—for example concerning length and renewability of judicial mandates, or powers of courts in the national judicial structure—the core of judicial independence remains (or should remain) untouched.

B. Pending Preliminary Reference from the Romanian High Court of Cassation and Justice

The Romanian High Court of Cassation and Justice submitted a reference concerning the position of the Constitutional Court in relation to corruption cases. The subject matter of the reference is not of much relevance here, but rather, the direct question concerning the principle of primacy, and the position of national constitutional courts. In its third question, the Romanian court thus asks:

Is the primacy of EU law to be interpreted as permitting a national court to disapply a decision of the constitutional court which has been handed down in a case concerning a constitutional dispute and is binding under national law?¹⁰³

Were present times not as precarious for the rule of law in the EU as they are, the Court of Justice could easily answer this question by referring to its previous Grand Chamber decision in Križan:

The national rule which obliges the Najvyšší súd Slovenskej republiky [Slovakian Supreme Court] to follow the legal position of the Ústavný súd Slovenskej republiky [Slovakian Constitutional Court] cannot therefore prevent the referring court from submitting a request for a preliminary ruling to the Court of Justice at any point in the proceedings which it judges appropriate, and to set aside, if necessary, the assessments made by the Ústavný súd Slovenskej republiky which might prove to be contrary to European Union law.¹⁰⁴

Therefore, we already know the answer to the question the Romanian court asked: primacy of EU law in its EU-exclusive reading, demands that all national courts set aside all contradicting jurisprudence, even that of a constitutional court. Yet, given that the question refers directly to the principle of primacy, no doubt will the Court of Justice conjure a Grand Chamber, and use it as an opportunity to elaborate in plenty of detail the meaning of the principle. Taking into account the rule of law backsliding in Poland and Hungary, dealt with also in a number of cases already closed and pending, it is expected that the Court of Justice will follow its approach in Juízes Portugueses, where the consequences of this decision will largely be felt in future cases. Still, the Court of Justice here needs to be wary of the limits of the normative core of constitutional pluralism, and carefully balance the basic principles of the EU's constitutional sphere with the need to police destructive conflict in other Member States. So, while the answer to the question posed will be in the affirmative, it remains to be seen what methods of interpretation the Court of Justice will use to reinforce, or perhaps extend the meaning of the principle of primacy.

C. Grossmania

The Court of Justice is further being asked about the temporal limits of the principle of primacy, this time by the Hungarian Administrative and Labour Court:¹⁰⁵

Must Article 267 of the Treaty on the Functioning of the European Union be interpreted as meaning that, where the Court of Justice of the European Union, in a decision given in preliminary ruling proceedings, has declared a legislative provision of a Member State to be incompatible with EU law, that legislative provision cannot be applied in subsequent national administrative or judicial proceedings either, notwithstanding that the facts of the subsequent proceedings are not entirely identical to those of the previous preliminary ruling proceedings?

Read together with the preliminary reference from Romania above, the Court of Justice is again in a position to instil some rather permanent changes to the operation of the principle of primacy. If answered in the affirmative, this may in fact result not in a disapplication of the relevant national provision in the case at hand, but in an invalidation of such norm for the future. It is less obvious, however, whether the Court of Justice would go as far as turning the obligation of disapplication into one of invalidation for national courts, which would demand a serious reconsideration of the role and scope of the principle of primacy.

D. Unified Patent Court

The European Commission has spent over four decades in an endeavour of creating one single EU patent system. The existing system of national patents and European patents, which still must be confirmed in the Member State in which its recognition is sought, is having a highly disincentivising effect on research and innovation in the EU. The latest event in this trajectory was the Agreement on the Unified Patent Court opened for signature in 2013.¹⁰⁶ The newest agreement allows patent applicants to sidestep the cumbersome patent registration in each Member State, by applying for a unitary patent. In addition, it creates the Unified Patent Court to hear disputes arising from unitary patents. Importantly, the UPC would have the legal status of every national court, thus able to submit preliminary references to the Court of Justice.¹⁰⁷

The German ratification act was challenged before the Bundesverfassungsgericht, where it was decided that the Bundestag needed to ratify the act with a two-thirds rather than a simple majority. The German Court, having stated that the accession to the UPC constituted a material constitutional amendment by transferring jurisdictional tasks to an intergovernmental institution, annulled the ratification act.¹⁰⁸ It also set out some thoughts on the principle of primacy:

Moreover, according to the consistent case-law of the Federal Constitutional Court, Union law only has priority over German law in terms of application and not validity, so that a violation of Union law does not lead to the invalidity of the national provision. Nor does a violation of Union law automatically constitute a violation of the Basic Law. If a statute of German law satisfies the national legislation, it remains effective even if it violates Union law … .

Nothing else follows from the principle of the European law-friendliness of the Basic Law … . Admittedly, the latter constitutionally obliges German bodies to comply with Union law … . They must avoid infringements of Union law to the extent that this is possible within the framework of methodologically justifiable interpretation and application of national law … . However, this alone does not lead to Union law itself becoming the constitutional standard. Its validity and application in Germany are based—in accordance with Article 23.1 sentence 2 of the Basic Law—on the order for the application of the law issued with the law approving the Treaties, which itself has no constitutional quality … . This cannot be overplayed by recourse to the principle of European law-friendliness … .¹⁰⁹

The language employed here does not correspond entirely to the traditional way in which the German Court regarded the relationship between national and EU law, as here the two appear entirely separate. Conversely, the German court stated back in its Lisbon Treaty decision that conferral is a principle of both EU and national constitutional law,¹¹⁰ and in the Right to Be Forgotten II decision stated that fundamental rights of the Union are a functional equivalent of the rights protected by the Basic Law.¹¹¹ It is therefore not possible to make a conclusion as straightforward as the Bundesverfassungsgericht made in the UPC decision. Yet, we are again in the scope of reasonable disagreement on the scope of the principle of primacy of EU law, and, as introduced in the previous Section, indeed the Court of Justice has only recently been invited to interpret the future effects of the principle of primacy on conflicting national law.

E. Weiss II

A veritable industry of academic pearl-clutching developed¹¹² after the German Bundesverfassungsgericht's decision on 5 May 2020 in Weiss II. According to the Bundesverfassungsgericht, the judgment of the Court of Justice, on the occasion of the preliminary reference submitted to it, represents an ultra vires act and is not binding on the German Court.¹¹³ The Bundesverfassungsgericht argues that the proportionality review as exercised by the Court of Justice with regard to the European Central Bank's quantitative easing programme (‘PSPP’) neutralises the principle of proportionality's function to protect Member State competence.¹¹⁴ In consequence, the Bundesbank was given a three month deadline during which it is obliged to work together with the European Central Bank (‘ECB’) in ensuring the programme meets the principle of proportionality as interpreted by the German Court. Otherwise, the Bundesbank will no longer be allowed to participate in the PSPP programme.¹¹⁵ Since then, the ECB has decided to comply with the request of the Bundesverfassungsgericht,¹¹⁶ which the President of the Bundesbank deemed to be in compliance with the demands on the proportionality analysis to be carried out and published by the ECB.¹¹⁷

Increasingly overtaking the interpretation of EU law itself, the Bundesverfassungsgericht took it upon itself to interpret the scope of the monetary policy mandate of the ECB; to define the relevant steps of the proportionality test; and whether the programme is in line with the Treaty prohibition of monetary financing. Is this conflict constructive? That is to say, is the decision of the German Court distorting the meaning of values listen in Article 2 TEU? Without going into the details of the legal framework underpinning the Economic and Monetary Union, there is a long-standing issue concerning the accountability mechanisms embedded therein.¹¹⁸ In that sense, the approach taken by the Bundesverfassungsgericht is one of remedying the flaws it has over the years been warning about—namely a need to more seriously scrutinise the ECB.¹¹⁹ Accountability as a democratic value therefore certainly falls in the scope of Article 2 TEU, and the rule of law—its increase can hardly lead to destructive conflict. Rather, while ultimately the German reading of ECB accountability may not be taken up as the general standard across the EU, it is my argument that it opens up space for debate and for a revised framework of accountability in the Economic and Monetary Union (‘EMU’).

Part of academic reactions to the decision appear to straightforwardly assume this to be a rule of law issue.¹²⁰ If so, this decision would fall in the scope of destructive conflict, questioning the very foundations of the EU's constitutional sphere. Yet, as will become obvious in Part V, the decision of the Bundesverfassungsgericht does not in any way question judicial independence of the Court of Justice. To insulate the Court of Justice from any sort of criticism by national courts would indeed disregard structural properties of judicial cooperation in the EU, bringing about more harm than good in the long term.¹²¹

F. Dansk Industri

Denmark, a majoritarian democracy, has a decentralised system of constitutional review, where all courts can review legislation with the Supreme Court at the top of the hierarchy. Regardless of this broad power, the Nordic courts have more generally applied self-restraint in favour of the supreme parliament.¹²² The Court of Justice's case law on the scope of general principle of non-discrimination on grounds of age and the Framework Directive triggered a series of interactions with the Supreme Court.¹²³ As mentioned above, the Danish law regulating retirement discriminated between workers’ right to severance package based on their age. The expansion of the general principle of non-discrimination on grounds of age to horizontal situations, as decided in Kücükedeveci,¹²⁴ was almost automatically applied to the situation referred by the Danish Supreme Court. The Danish court rejected the obligation to interpret the Danish Law on salaried employees contra legem in order to afford horizontal effect to the general principle of non-discrimination on grounds of age.

The Supreme Court undertook an extensive interpretation of the limits to the competences that Denmark conferred upon the EU. Essentially, the Danish Court rejected outright the expanded self-referential system of the Treaties as created by the Court of Justice; more precisely, its jurisprudence on the direct effect of general principles of EU law.¹²⁵ Article 6(3) TEU was used as the central provision to determine the extent to which general principles of Union law are applicable in Denmark, and the Supreme Court found no basis in that provision for the Court of Justice's findings in Mangold and Kücükdeveci.¹²⁶ In consequence, the judgments of the Court of Justice in Mangold and Kücükdeveci were found to be ultra vires. The Supreme Court also decided it would be acting outside its constitutional powers if it allowed the application of a principle (arguably) not covered by the transfer of powers from Denmark to the EU.¹²⁷

The reaction of the academic community to the decision expectedly did not pick up the existing critique directed to the Court of Justice in relation to its Mangold-initiated jurisprudence, but rather turned on the Supreme Court for stepping out of bounds. The decision was called an act of ‘defiance of clear guidelines from the Court of Justice’¹²⁸ and ‘controversial’,¹²⁹ which ‘took the European legal community by surprise’.¹³⁰ The present work does not share the shock of the mentioned commentaries. In the description of the background of the case, the Supreme Court mentioned opinions of several Advocates General employing the same criticism as the Supreme Court. First, the Supreme Court cited the analysis of Advocate General Trstenjak¹³¹ concerning the implications of Kücükdeveci for the principle of legal certainty, and in particular her questioning of the remaining scope of the Framework Directive beyond the general principle of anti-discrimination.¹³² In addition, the Supreme Court cited Advocate General Kokott, who called the outcome in Mangold and Kücükdeveci a ‘makeshift arrangement’¹³³ for resolving discrimination situations between individuals.¹³⁴ Finally, in support for its formalistic reading of the application of general principles of EU law, the Supreme Court cited Advocate General Bot¹³⁵ in Kücükdeveci, where he criticised the Court of Justice's overestimate of the commonality of the constitutional protection of antidiscrimination on grounds of age across EU Member States.¹³⁶ Rather, he recommended a more formalistic reading of the principle, based on the prohibition of discrimination in the then Article 13 TEU, and Article 21(1) of the Charter.¹³⁷ These concerns have been present since the Mangold judgment, and, accordingly, regardless of the ultimate resolution of this debate, it is clear that the differences in interpretation do not go beyond reasonable disagreement allowed for in Article 2 TEU.

V. DESTRUCTIVE CONFLICT AND THE FUTURE OF CONSTITUTIONAL PLURALISM

In their highly critical piece on constitutional pluralism, Kelemen and Pech state that the theory is at best ‘a fudge’ and is conceptually identical to constitutional identity; and since it is so prone to abuse by governments aiming to dismantle the rule of law, we should simply give it up and read primacy of EU law as a federal supremacy clause.¹³⁸ They conclude that constitutional pluralism is so prone to abuse, that it is likened to ‘an abnormally dangerous product and its manufacturers should be held to a standard of strict liability’.¹³⁹ However, because the authors themselves focus exclusively on abuses of constitutional pluralism, we are never told how is the product of constitutional pluralism abnormally dangerous in the first place. Rather, the analysis leaves the impression that precisely the setup of constitutional pluralism is to blame for the rule of law backsliding being possible.¹⁴⁰ Thus, as recently pointed out, they are attacking ‘an empirical conclusion on normative grounds’.¹⁴¹ In his earlier work, Kelemen himself points to entirely different causes in the EU's institutional setup that allow for what he calls the ‘authoritarian equilibrium’:¹⁴² EU's system of party politics, the EU's funding and investment structure, and free movement of persons causing a depletion of opposition in authoritarian regimes.¹⁴³

In addressing these issues, Kelemen and Pech argue that only a full-blown supremacy of EU law¹⁴⁴ can ensure the equality of Member States, recalling Fabbrini's argument on the relationship between equality of Member States and the national identity clause.¹⁴⁵ In other words, constitutional identity is the sword threatening the existence of the European Union. Yet, constitutional identity is acting precisely as a shield from authoritarian, anti-democratic tendencies: constitutional identity is a concept necessarily including the rule of law. Pech convincingly and thoroughly shows that the rule of law is indeed a common constitutional tradition of both the EU and its Member States.¹⁴⁶ Surely even Fabbrini's reading of Article 4(2) TEU¹⁴⁷ would include the values of Article 2 TEU to be necessarily embedded in national identity of Member States. Moreover, values contained in Article 2 TEU are entrenched in the accession process to the European Union, and any state aspiring to become a member would, in principle, not be able to follow the footsteps of Hungary and Poland.¹⁴⁸

Furthermore, a proper understanding of the nexus between constitutional pluralism and the rule of law best demonstrates the capacity of constitutional pluralism to reject abusive practices of illiberal governments. Kelemen and Pech refer to abusive governments and their actions as ‘legal miscreants’¹⁴⁹—and they are very correct. These cases, rather than showing a disagreement on the interpretation of basic values of Article 2 TEU, show a complete disregard for their existence, and violate the normative ideal of the European integration project itself. For example, in Poland, it is possible for the Minister of Justice to personally delegate a judge to a case, alongside other flagrant breaches of judicial independence in judicial appointment.¹⁵⁰ In addition, national judges were warned by the Deputy of the Disciplinary Commissioner of Judges of Common Courts not to publicly question the effectiveness of appointing judges adjudicating in the Chamber of Extraordinary Control and Public Affairs of the Supreme Court.¹⁵¹ Finally, a Dutch court submitted a preliminary reference to the Court of Justice, asking whether it is still possible to cooperate with Polish institutions within the European Arrest Warrant system, given that they may no longer be considered independent courts within the meaning of mutual trust in the Area of Freedom, Security and Justice.¹⁵² It is clear that these cases do not fall within the scope of a reasonable disagreement in interpreting values contained in Article 2 TEU, but are questioning their very existence.

Poland is abusing the concept of constitutional identity through a contra legem reading of principles contained in Article 2 TEU. The reaction of the Polish Government to the decision of the Bundesverfassungsgericht concerning the ECB mandate is a case in point. The Polish Government stated that Polish courts can disapply EU law obligations on the basis of constitutional identity, in the same way as the German Court did.¹⁵³ Yet, in the actual decision, the German Court found that constitutional identity was not breached,¹⁵⁴ but rather, the Court of Justice insufficiently controlled an EU institution in keeping within its mandate (an ultra vires finding).¹⁵⁵ It is possible to disagree with the merits of the German decision, but it is not possible to claim the findings went beyond a reasonable interpretation of any of the values contained in Article 2 TEU.

VI. CONCLUSION

The constitutional sphere of the EU is a strange and rare creature, for decades resisting being sorted according to the easy, well-known categories of states and international organisations. Accordingly, the analysis of this strange creature demands us to abandon some pre-conceived assumptions concerning constitutionalism more generally. It demands regarding law as a dynamic, incrementally developing creature, where constitutional conflict is not a bug, but an important feature of the system's functioning. So long as the ‘constitutional’, expressed through the values in Article 2 TEU, is coherently interpreted within the limits of the ‘pluralist’, we can speak of constructive conflict, conducive to the dynamic development of the EU's constitutional sphere. However, this does not mean that the system is immune to bugs: it is possible to observe instances of destructive conflict, questioning the system's entire existence: the ‘constitutional’. In this respect, the auto-correct function of constitutional pluralism can only stretch as far as constructive conflict, whereas instances of destructive conflict cannot be resolved through mutual accommodation and self-restrain, the determinants of the auto-correct function.

Mutual respect and judicial self-restraint do not deny the primacy of EU law in its particular context, but a pluralist account does reject the outright subordination of national legal orders in their entirety to the EU legal order. The case law of the Court of Justice on this matter reinforces the normative ideals of constitutional pluralism shared by all Member States, as it safeguards the rule of law once a national constitutional court is no longer able to do so. The object of constructive constitutional conflict is the balancing between these values, and the degree to which they are protected, rather than their very existence. The scope of Article 2 TEU still allows variety in interpretation and does not result in a uniform monist solution in every single case. Rather, a heterarchical constellation means that through sincere cooperation and mutual respect, different interpretations will prevail at different points in time. Yet, there is no reason why this would undermine the coherence of EU law.¹⁵⁶ The deficiencies in addressing this rule of law crisis then tell us something about the institutional (in)capacity of political elites of the European Union to resolve it.¹⁵⁷

It may well be that the latest preliminary references from Romania and Hungary will result in a detailed elaboration, and possible an expansion of the principle of primacy into something closer to a federal understanding of supremacy. In response, there may or may not be challenges from national constitutional courts. If it results in strengthening the rule of law across member states, it will be a welcome step forward. However, we are not there yet, and until then, the auto correct function of constitutional pluralism with a strong normative core will continue to guide the developments in the EU constitutional space.