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Securing the European Project: From Self-Referentiality to Heterarchy

Published online by Cambridge University Press:  14 January 2020

Massimo FICHERA
Massimo FICHERA*
Affiliation:
University of Helsinki
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Abstract

Security is the meta-constitutional rationale of the European liberal project and is expressed by two tendentially self-justificatory discourses of power, which are two sides of the same coin: security and rights. The political, inherently conflictual nature of EU constitutional claims has been variously disguised through such discourses. Yet, as the process of constitutionalisation reaches a more advanced stage, in which the probability of high-intensity legal-political conflict as regards key issues of EU integration is growing, the moment has come to address conflict directly, rather than conceal it behind a veil of neutrality. Being ready for actual confrontation means dismissing the straitjacket imposed by the European liberal project. A move from self-referential to heterarchical security is thus advocated. As a result, the constellation of nation states should not be sidelined too easily and the needs and claims of the local level should be considered more carefully. In other words, the principles of primacy, autonomy, uniformity, and effectiveness of EU law ought to be conceived in relative, rather than in absolute terms. One possible way of addressing conflict is to simultaneously permit the CJEU (as well as other EU institutions) to engage more proactively with national courts and identify a common epistemic core, which ought to be upheld whenever the liberal-democratic premises of the European project are threatened.

Keywords

liberalismconstitutional pluralismdemocracyEU judiciaryrule of law
Type
Articles
Information
Cambridge Yearbook of European Legal Studies , Volume 21 , December 2019 , pp. 273 - 296
Copyright
Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge

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Footnotes

*

I would like to thank the anonymous reviewer for comments on an earlier draft. The usual disclaimer applies.

References

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3 It should be borne in mind that the existence of an unamendable core of fundamental principles, which could not be altered by Member States, is a matter of debate: Da Cruz Vilaca, J L and Picarra, N, ‘Y-a-t-il des limites matérielles à la révision des traités instituant les communautés européennes?’ (1993) 29 Cahiers de droit européen 3Google Scholar; de Witte, B, ‘Treaty Revision in the European Union: Constitutional Change Through International Law’ (2004) 35 Netherlands Yearbook of International Law 51, pp 56–57Google Scholar (arguing against the existence of substantive limits to the amendment powers of Member States). Importantly, see Kadi and Al Barakaat, C-402/05 and C-415/05, EU:C:2008:461, para 304: ‘Art. 307 EC may in no circumstances permit any challenge to the principles that form part of the very foundations of the Community legal order, one of which is the protection of fundamental rights …’.

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11 Reference to ‘the people’ or ‘the peoples’ of Europe can be found, eg in the Preamble of the Treaty of Lisbon.

12 This is true even of alternative projects, eg the failed Fouchet Plan (1961) (which pursued a more intergovernmental agenda). The plan aimed to build up a ‘Europe of Peoples’ and in its Article 2 emphasised the need to protect human rights, fundamental rights and democracy: at www.cvce.eu.

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21 Stauder v City of Ulm, C-29/69, EU:C:1969:57; Internationale Handellsgesellschaft, note 10 above; Nold v Commission, C-4/73, EU:C:1974:51. More recently Melloni, C-C-399/11, EU:C:2013:107.

22 Kadi and Al-Barakaat, note 3 above.

23 Internationale Handellsgesellschaft, note 10 above, para 3; Kadi and Al-Barakaat, note 3 above.

24 Melloni, note 21 above, paras 58–60.

25 Åkerberg Fransson, C-617/10, EU:C:2013:105, paras 17–21.

26 Opinion 2/13, EU:C:2014:2454, para 200.

27 Speech by Joschka Fischer at the Humboldt University in Berlin, 12 May 2000, ‘From Confederacy to Federation: Thoughts on the Finality of European Integration’, pp 3–5.

28 Speech by Mario Draghi, President of the European Central Bank, at the Global Investment Conference in London, 26 July 2012: ‘The only way out of this present crisis is to have more Europe, not less Europe’. Similarly, German Chancellor Angela Merkel portrayed both the financial and refugee crises as existential crises. As monetary union is a ‘community of fate’ (Schicksalgemeinschaft) ‘if the euro fails, then Europe fails’: see ‘Merkel Says Europe Must Be Bound Closer Together’ (Der Spiegel Online, 7 September 2011). In addition, ‘if Europe fails on the question of refugees, then it won't be the Europe we wished for’: ‘Migrant crisis: Merkel warns of EU failure’ (BBC News, 31 August 2015).

29 Speech by Mario Draghi, President of the European Central Bank, at the ‘Teatro Sociale’ in Trento, 13 September 2016, p 1 (‘De Gasperi’ award ceremony).

30 State of the Union Address by Jean-Claude Juncker, President of the European Commission, Strasbourg, 14 September 2016, ‘Towards a Better Europe: A Europe that Protects, Empowers and Defends’. See also Speech by Mario Draghi, President of the European Central Bank, at the joint ECB and Banka Slovenije Conference on the Occasion of the 10th Anniversary of the Adoption of the Euro, Ljubljana, 2 February 2017, ‘Security through Unity: Making Integration Work for Europe’.

31 Internationale Handelgesellschaft, note 10 above, para 4, where the CJEU ruled that the protection of fundamental rights, ‘whilst inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structures and objectives of the Community’.

32 For example, in Wachauf, C-5/88, EU:C:1989:321, para 18, the CJEU points out that ‘… fundamental rights … are not absolute … but must be considered in relation to their social function’, so that ‘restrictions may be imposed on the exercise of those rights, in particular in the context of the organisation of a common market, provided that those restrictions correspond in fact to objectives of general interest pursued by the Community and do not constitute, with regard to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of those rights’.

33 Peter Gauweiler ao v Deutscher Bundestag, C-62/14, EU:C:2015:400.

34 Griesmar, C-366/99, EU:C:2001:648; Mouflin, C-206/00, EU:C:2001:695.

35 Decker, C-120/95, EU:C:1998:167; Elsen, C-135/99, EU:C:2000:647.

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39 Ibid.

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49 See eg Walker, N, ‘The Idea of Constitutional Pluralism’ (2002) 65 Modern Law Review 317CrossRefGoogle Scholar; Krisch, N, Beyond Constitutionalism – The Pluralist Structure of Postnational Law (Oxford University Press, 2010)CrossRefGoogle Scholar.

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51 See eg Komárek, J, ‘Why National Constitutional Courts Should Not Embrace EU Fundamental Rights’ in Weatherill, S et al. (eds) The EU Charter of Fundamental Rights as a Binding Instrument (Hart Publishing, 2015), pp 75–92Google Scholar; Dani, M, ‘National Constitutional Courts in Supranational Litigation: A Contextual Analysis’ (2017) 23 European Law Journal 189CrossRefGoogle Scholar (where the author, while conceding that ‘each judicial actor is given the opportunity to represent its particular legal culture and engage with the normative claims formulated by its interlocutors’, and, in particular, ordinary courts have become ‘trusted partners in constitutional adjudication’, maintains that, although constitutional courts should be more prominent, they should not be ‘expected to embark on rights-based constitutional resistance against supranational technocratic and intergovernmental encroachment’ in the name of constitutional democracy); Davies, G, ‘Does the Court of Justice Own the Treaties? Interpretative Pluralism as a Solution to Over-constitutionalisation’ (2018) 24 European Law Journal 1CrossRefGoogle Scholar.

52 As Davies readily recognises, ‘Certainly, all this can lead to impasse and conflict and courts pitted against each other. Yet that is in the nature of legal systems—there are often long-standing and frustrating divergences between courts at different levels, or in different regions, or branches of the judiciary’. Davies, ‘Does the Court of Justice own the Treaties’, note 51 above.

53 M Fichera and O Pollicino, ‘The Dialectics Between Constitutional Identity and Common Constitutional Traditions. Which Language for Cooperative Constitutionalism in Europe?’ (2019) German Law Journal forthcoming.

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55 As admitted in Cappelletti, note 54 above, p 1050.

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59 Menéndez, A J, ‘The Existential Crisis of the European Union’ (2013) 14 German Law Journal 453CrossRefGoogle Scholar; J-C Juncker, ‘State of the Union Address 2016: Towards a Better Europe, a Europe that Protects, Empowers and Defends’, Strasbourg, 14 September 2016 (‘Our European Union is, at least in part, in an existential crisis’.); Fichera, ‘Security Issues as Existential Threat to the Community’, note 4 above, pp 85–111.

60 I use this term without any Marxist undertones or sociocultural implications.

61 The EMU itself was considered to be ‘the royal road to political union’ and in the 1970s it replaced customs union as the main goal of European integration. Majone, G, Rethinking the Union of Europe Post-Crisis: Has Integration Gone Too Far? (Cambridge University Press, 2014), p 23CrossRefGoogle Scholar.

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64 See eg Habermas, J, Between Facts and Norms (The MIT Press, 1996)CrossRefGoogle Scholar.

65 Ibid.

66 See eg ‘Salvini Hails Six Months in Power, Wants to Personally Negotiate with EU’ (Euractiv, 10 December 2018), https://www.euractiv.com/section/eu-elections-2019/news/salvini-hails-six-months-in-power-wants-to-personally-negotiate-with-eu.

67 C Cost Ordinanza No 207/2013, www.cortecostituzionale.it; Taricco, C-105/14, EU:C:2015:555; more recently, Criminal proceedings against M A S, C-42/17, EU:C:2017:936.

68 Dansk Industri v Rasmussen, C-441/14, EU:C:2016:278; Danish Supreme Court, Case No 15/2014 Dansk Industri, acting on behalf of Ajos A/S, Judgment of 6 December 2016.

69 Hungarian Constitutional Court, Case No 22/2016, Judgment of 30 November 2016, http://hunconcourt.hu/sajto/news/communication-on-the-interpretation-of-the-fundamental-laws-provision-allowing-the-joint-exercise-of-powers-with-the-other-member-states-through-the-institutions-of-the-european-union; Slovak, Hungary, Poland v Council (asylum-seeker quota), C-643 to 647/15, EU:C:2017:631.

70 Acórdão do Tribunal Constitucional No 187/2013, Judgment of 22 April 2013, Diário da República No 78/2013, Série I de 2013-04-22.

71 Greek Council of State, Case 668/2012.

72 Melloni note 21 above; Tribunal Constitucional, Sentencia No 26/2014, Melloni, 13 February 2014, BOE No 60 Sec. TC. P. 85 (which recalls the famous judgment 1/2004).

73 Pl ÚS 5/12, Slovak Pensions case (the first time a CJEU ruling was found ultra vires).

74 R (on the application of HS2 Action Alliance Limited) v Secretary of State for Transport [2014] UKSC 3.

75 In addition to the famous rulings of the German and Italian Constitutional Court, see for example in Denmark, Carlsen v Rasmussen (Danish Maastricht Case) (1999) 3 CMLR 854; in the UK, Thoburn v Sunderland City Council [2002] EWHC 195 (Admin); in Estonia, the ruling of the Supreme Court on the EMU, 3-4-1-6-12, 12 July 2012 (and all other European courts’ rulings issued during the economic and financial crisis).

76 In particular, Article 158 of Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, OJ L 347, 11.12.2006, as well as other TFEU provisions.

77 Taricco, note 67 above, para 49: this could occur ‘without having to request or await the prior repeal of those articles by way of legislation or any other constitutional procedure’. See (as in Ajos) Kücükdeveci v Swedex, C-555/07, EU:C:2010:21, para 51.

78 Kücükdeveci v Swedex, note 77 above, para 55. In any case, ‘if the national court decides to disapply the national provisions at issue, it must also ensure that the fundamental rights of the persons concerned are respected’ (para 53).

79 C Cost Ordinanza No 207/2013, note 67 above.

80 C Cost Sentenza No 183/73; Sentenza No 170/84, www.cortecostituzionale.it. See also Cartabia, M, ‘The Italian Constitutional Court and the Relationship Between the Italian Legal System and the European Community’ (1990) 12 Michigan Journal of International Law 173Google Scholar.

81 Gauweiler, note 33 above.

82 C Cost Ordinanza No 207/2013, note 67 above, para 6.

83 Ibid, para 8. See Bernardi, A (ed), I Controlimiti- Primato delle Norme Europee e Difesa dei Principi Costituzionali (Jovene, 2017)Google Scholar.

84 Criminal proceedings against M A S, note 67 above.

85 Ibid, para 44.

86 Ibid, para 45.

87 Ibid, paras 41–42.

88 C Cost Sentenza No 115/2018, especially paras 5 and 11, https://www.cortecostituzionale.it/documenti/comunicatistampa/CC_CS_20180601103714.pdf.

89 Fichera, M et al. , Comment, ‘Forum di discussione- La saga Taricco a una svolta: in attesa della decisione della Corte Costituzionale’(2018) 1 Diritti Comparati, p 27Google Scholar.

90 Other examples could be made, such as the case of the Roma repatriation in France. See Konstadinides, T, The Rule of Law in the European Union – The Internal Dimension (Hart Publishing, 2017), p 146Google Scholar.

91 COM (2017) 835 final, European Commission Reasoned Proposal in Accordance with Article 7(1) of the Treaty on the European Union Regarding the Rule of Law in Poland – Proposal for a Council Decision on the Determination of a Clear Risk of a Serious Breach by the Republic of Poland of the Rule of Law.

92 In addition to this, COM (2019) 163 final, Communication from the Commission on Further Strengthening the Rule of Law within the Union, p 13 and COM (2019) 343 final, Communication from the Commission on Strengthening the Rule of Law within the Union – A Blueprint for Action, p 4 both emphasise the importance of national courts for the application of EU law.

93 European Parliament Resolution of 12 September 2018 on a proposal calling on the Council to determine, pursuant to Article 7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded, Report on the Situation in Hungary, 2017/2131(INL).

94 von Bogdandy, A et al. , ‘A European Response to Domestic Constitutional Crisis: Advancing the Reverse-Solange Doctrine’ in von Bogdandy, A and Sonnevend, P (eds), Constitutional Crisis in the European Constitutional Arena: Theory, Law and Politics in Hungary and Romania (Hart Publishing, 2015), p 235Google Scholar provides a response which can be framed within such discourses.

95 See eg Kelemen, R D and Pech, L, ‘Why Autocrats Love Constitutional Pluralism: Lessons from Hungary and Poland’ (2019) 21 Cambridge Yearbook of European Legal Studies 59Google Scholar. The authors quote the Polish government's White Paper on the Reform of the Polish Judiciary, which explicitly relies on MacCormick's thesis to support its own claims, as evidence of the inadequacy of the heterarchical paradigm.

96 For the idea of demoicracy, see references later in this work.

97 Kelemen and Pech, note 95 above, p 7.

98 Fichera, M, ‘Brexit and the Security of the European project: Citizenship and Free Movement as a Case Study’ (2018) 69 Northern Ireland Legal Quarterly 249, p 259Google Scholar.

99 Wightman, note 20 above. Importantly, in support of the argument that the intention to withdraw can be unilaterally revoked any time prior to the conclusion of the withdrawal agreement, AG Campos Sánchez-Bordona emphasises that such conclusion is “consonant with the survival … of any association in which very strong links have been forged” as well as with the protection of the rights of EU citizens. Opinion of Advocate-General Campos Sánchez-Bordona, Wightman, note 20 above, paras 134–37.

100 An appropriate analysis of the distinction between populism and authoritarianism lies beyond the scope of this work.

101 Von Bogdandy and Sonnevend (eds), Constitutional Crisis in the European Constitutional Arena, note 94 above.

102 Champeau, S, ‘Populist Movements and the European Union’ in Champeau, S et al. (eds), The Future of Europe- Democracy, Legitimacy and Justice After the Euro Crisis (Rowman and Littlefield, 2015), p 195Google Scholar.

103 Muller, J W, What is Populism (University of Pennsylvania Press, 2016)CrossRefGoogle Scholar

104 ‘The political operation par excellence is always going to be the construction of “a people”’. E Laclau, On Populist Reason (Verso, 2005), p 153.

105 ‘For politics, the fact that the people are internally divided is not, actually, a scandal to be deplored. It is the primary condition of the exercise of politics’. Rancière, J, Disagreement: Philosophy and Politics, Rose, J (trans) (University of Minnesota Press, 1999), pp 87–88Google Scholar.

106 Bellamy, R, ‘An Ever Closer Union Among the Peoples of Europe: Republican Intergovernmentalism and Demoicratic Representation within the EU’ (2013) 35 Journal of European Integration 499CrossRefGoogle Scholar; Nicolaïdis, K, ‘European Demoicracy and Its Crisis’ (2013) 51 Journal of Common Market Studies 351CrossRefGoogle Scholar.

107 M Fichera, The Foundations of the EU As A Polity, note 6 above.

108 Associação Sindical dos Juízes Portugueses, C-64/16, EU:C:2018:117, para 31. On this case, see Bonelli, M and Claes, M, ‘Judicial Serendipity: How Portuguese Judges Came to the Rescue of the Polish Judiciary’ (2018) 14 European Constitutional Law Review 622CrossRefGoogle Scholar.

109 Associação Sindical dos Juízes Portugueses, note 108 above, paras 35–36.

110 Ibid, para 37.

111 Ibid, para 41.

112 Commission v Poland (Polish Forest), Order of the Court, C-441/17, EU:C:2018:255, para 102. See eg Wennerås, P, ‘Saving the Forest and the Rule of Law’ (2019) 56 Common Market Law Review 541Google Scholar.

113 Commission v Poland, Order of the Court, C-619/18, EU:C:2019:615.

114 Ibid, para 52. For other cases, which may be considered part of the ‘rule of law crisis’, see eg Torubarov, C-556/17, EU:C:2019:626; F, C-473/16, EU:C:2018:36 (on asylum and refugees respectively).

115 Opinion of AG Tanchev, C-585/18, 624/18, 625/18, EU:C:2019:551; Opinion of AG Tanchev, C-192/178, EU:C:2019:529. In the latter, Tanchev is particularly careful to point out that Article 19(1) TEU operates only in exceptional cases related to ‘systemic or generalised deficiencies’, ‘which compromise the essence of the irremovability and independence of judges’: otherwise, ‘respect for the boundary between the competences of the EU, and those of the Member States, is as important in an EU legal order based on the rule of law as the protection of fundamental rights (points 114–16).

116 Eurobolt, C-644/17, EU:C:2019:555.

117 See eg STC 37-2019, in which the Spanish Constitutional Tribunal ruled that Spanish domestic courts are under a special duty to make a preliminary reference only if they ascertain that a piece of legislation breaches EU law, and not otherwise. This has been interpreted as a move to discourage courts of last instance from setting aside statutes violating EU law. See D Sarmiento, ‘Should Constitutional Courts Be Guardians of the Duty to Make a Preliminary Reference?’ (Despite Our Differences, 26 June 2019), https://despiteourdifferencesblog.wordpress.com.

118 The German Federal Constitutional Court claimed to have the ‘first word’ before any issue is brought to the CJEU. The Court in fact claimed it may review whether a national law is compatible with the Basic Law, including in cases where compatibility with the secondary law of the EU is also in doubt. See BVerfG, Order of 21 March 2018, 1 BvF 1/13, English Press Release No 32/2018 of 4 May 2018, https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2018/03/fs20180321_1bvf000113.html. The Italian Constitutional Court followed a similar path in issues of ‘dual preliminarity’: in Sentenze No 269/2017 of 7 November 2017, it advocated priority of reference whenever national legislation conflicts at the same time with the Italian Constitution and the CFR: see https://www.cortecostituzionale.it/actionSchedaPronuncia.do?anno=2017&numero=269.

119 Global Starnet, C-322/16, EU:C:2017:985, para 21.

120 Ibid, para 23.

121 Corte Costituzionale, Sentenza No 269/2017 of 7 November 2017. Articles 11 and 117(1) Italian Constitution are employed as legal basis by the Italian Court.

122 See eg Corte Costituzionale, Sentenza No 20/2019, para 2.1, https://www.cortecostituzionale.it/actionSchedaPronuncia.do?anno=2019&numero=20. The case concerned Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data, OJ L 119, 4.5.2016.

123 Corte Costituzionale, Sentenza No 20/2019, note 122 above, para 2.3.

124 See also Corte Costituzionale, Sentenza No 63/2019, https://www.cortecostituzionale.it/actionSchedaPronuncia.do?anno=2019&numero=63.