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The Spanish Constitution and the European Constitution: The Script for a Virtual Collision and Other Observations on the Principle of Primacy

Published online by Cambridge University Press:  06 March 2019

Ricardo Alonso García

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The following reflections, that will focus exclusively on the European primacy clause in the light of the Statement by the Constitutional Court no. 1/2004 of 13 December, in particular with regard to its scope as regards the Spanish Constitution itself, may take as a starting point the conclusion contained at the last paragraph of FJ 4 of the Statement, which states as follows:

“In the scarcely-conceivable event that in the ultimate functioning of European Union Law this Law were to result irreconcilable with the Spanish Constitution, and without the hypothetical excesses of European Law with regard to the European Constitution itself being remedied by the ordinary channels provided for in the latter, ultimately the preservation of the sovereignty of the Spanish people and of the supremacy of the Constitution as it provides for itself could lead this Court to tackle the problems that would arise in such a case, and which from the current point of view are considered to be non-existent, by way of the relevant constitutional procedures”.

Type
Developments
Information
German Law Journal , Volume 6 , Issue 6 , 01 June 2005 , pp. 1001 - 1024
Copyright
Copyright © 2005 by German Law Journal GbR 

References

1 Which was at the heart of the question (and not primacy as regards infra-constitutional Law), as may be clearly seen from the Opinion issued by the Council of State (dated 21 October 2004, file no. 2544/2004), which is at the root of the governmental request posed to the Constitutional Court and which states as follows: “The fundamental point on which the Treaty establishing a Constitution for Europe may enter into conflict with the current Spanish Constitution is […] with regard to the supremacy of the Spanish Constitution […]. The primacy of European Union Law […] means that any rule of European Union Law, not only from primary legislation but also derived from it, shall prevail over the rules of the Law of the Member State, whatever its status, including constitutional law […]. And Article 9.1 of the Constitution proclaims its supremacy with regard to the entire legal system, and Article 95.1 does likewise with regard to International Law”. With regard to this Opinion, cf. V. Ferreres Comella and A. Saiz Arnaiz, ¿Realmente hay que reformar la Constitución Española para adecuarla a la cláusula de primacía de la Constitución Europea?, Actualidad Jurídica Aranzadi, 645 (2004).Google Scholar

2 Despite the fact that the reform has been at pains to stress the “constitutional” content of the European construction, it continues to be formally based on an instrument which has for the moment been negotiated and signed as a “Treaty”. Therefore the name “Constitutional Treaty of the European Union” seems to me to be more rigorous and accurate, and in fact this name was considered in the early debates on the reform. However, this does not constitute an impediment to also using the name of “European Constitution”, which has a strong symbolic value which manifests an undeniable political will to continue down the path of “ever-closer union between the peoples of Europe”, as was stated in the Preamble to the Treaty of the European Economic Community. “Convinced that, while remaining proud of their own national identities and history”, witters the Preamble to the European Constitution, “the peoples of Europe are determined to transcend their former divisions and, united ever more closely, to forge a common destiny”.Google Scholar

3 FJ 4: “Primacy and supremacy are categories which act at different levels. The former refers to the application of valid rules; the latter refers to the procedures of rule-making”. I shall return to this distinction later, which I consider to be unnecessary on account of being confusing.Google Scholar

4 Which change is considered as being radical in the respective individual votes of the Judges J. Delgado Barrio, R. García-Calvo, and R. Rodríguez Arribas, and with which opinions I disagree for the simple reason that, as I have just pointed out, Statement no. 1/2004 continues to maintain the ultimate supremacy of the Spanish Constitution and, as I shall argue, of the entire text of the Spanish Constitution.Google Scholar

5 Cf. G.C. Rodríguez Iglesias, Tribunales Constitucionales y Derecho Comunitario, in: Hacia un nuevo orden internacional y europeo. Homenaje al Prof. M. Díez de Velasco 1191 (1993). The Spanish Constitutional Court (Statement no. 1/1992), and the Danish Supreme Court (Judgements of 12 August 1996 and 6 April 1998) added to the well-known and significant case law of the Corte Costituzionale (Constitutional Court) and the Bundesverfassunsgericht (Federal Constitutional Court), when the Maastricht Treaty was ratified. “It should be borne in mind”, states the aforementioned Opinion from the Council of State, “that the unconditional scope of the principle of the primacy of European Law (“Union Law” to use the expression in the heading of Article I-6) affirmed by the European Court of Justice, does not exactly coincide with the recognition of this principle as made by the Constitutional Courts of the Member States, given that they have defined certain constitutional limits on the efficacy of the rules of European Law in national Law”.Google Scholar

6 I refer to my work, Community and National Legal Orders: Autonomy, Integration and Interaction in: Collected Courses of the Academy of European Law (Vol. VII, Book 1, 1999).Google Scholar

7 Current 288 of the European Community Treaty, where the second paragraph provides: “In the case of non contractual liability, the Community shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties”.Google Scholar

8 It should be remembered that already in the Preamble of the Single European Act, the Member States had declared that they were “determined to work together to promote democracy on the basis of the fundamental rights recognized in the constitutions and laws of the Member States, in the Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter, notably freedom, equality and social justice”.Google Scholar

9 I refer again to my work, Community and National Legal Orders: Autonomy, Integration and Interaction, supra note 6 at 183.Google Scholar

10 In the German case, set forth by the Federal Constitutional Court in its Solange II doctrine (decision of 22 October 1986), the undermining of which in the Maastricht decision (12 October 1993) was “neutralized” (and this was confirmed in the decision of 9 January 2001) by the decision (which I shall refer to again later) of 7 June 2000 (European banana import régime): cf. W. Zimmer, De nouvelles bases pour la coopération entre la Cour Constitutionnelle Fédérale et la Cour de Justice de Luxembourg? (à propos de BverfGE, 7 juin 2000, Solange III), Europe 5 (March 2001); I. Pernice, Les bananes et les droits fondamentaux: la Cour Constitutionnelle alemande fait le point, 3-4 Cahiers de Droit Europeen 427 (2001); A. López Castillo, Un nuevo paso en la andadura iuscomunitaria del Tribunal Constitucional Federal de Alemania. El Auto (Sala Segunda) de 7 de junio de 2000, 61 Revista Española de Derecho Constitucional 349 (2001); J. Callewaert, Les droits fondamentaux entre cours nacionales et européennes, 48 Revue Trimestrielle des Droits de l'Homme 1186 (2001).Google Scholar

In the French case, drawn from the Decision of the Constitutional Council of 29 October 2004 (bio-ethical decision), according to the services of the Constitutional Council (La jurisprudence constitutionnelle française relative au droit communautaire à la veille de l'examen par le Conseil constitutionnel du traité établissant une Constitution pour l'Europe, November 2004): “Only in the event there is an incompatibility with an express provision that is contrary to the French Constitution would the duty of transposition [of European Law] cease to be constitutional, even though it continues as a European duty”. “Express provision” is taken to mean not only an explicit positive provision (non- judicial), but also a “special” provision in the sense of “special to France, i.e. without any equivalent in the European catalogue of fundamental rights and general principles of law, principles which are common to the Member States” (bearing in mind that the guiding principle of the caselaw of the Constitutional Council in this regard could be summarized, according to its services, by the maxim “disposer en toutes circonstances d'un juge et d'un seul”).Google Scholar

11 Article 93 states: “Authorization may be granted by an organic act for concluding treaties by which powers derived from the Constitution shall be transferred to an international organization or institution. It is incumbent on the Cortes Generales [Parliament] or the Government, as the case may be, to ensure compliance with these treaties and with resolutions originating in the international and supranational organizations to which such powers have been so transferred”.Google Scholar

12 Article 13.2 currently states: “Only Spaniards shall have the rights recognized in Article 23, except in cases which may be established by treaty or by law concerning the right to vote and the right to be elected in municipal elections, and subject to the principle of reciprocity”. The constitutional reform adopted on 27 August 1992, just added the words “and the right to be elected” to the paragraph.Google Scholar

13 Cf. Martin, A. Mangas, La Constitución y la ley ante el Derecho comunitario, 2 Revista de Instituciones Europeas 599 (1991) (already criticising its description as exclusively organic-procedural in the Judgement of the Constitutional Court no. 28/1991); P. Pérez Tremps, Constitución Española y Comunidad Europea, 36-37 (1993); R. Alonso García, Derecho Comunitario: Sistema Constitucional y Administrativo de la Comunidad Europea, 281 (1994); A. López Castillo, Constitución e Integración, 104 (1996) (putting forward a more modulated critique).Google Scholar

14 The key question lies, in my opinion, in the erroneous line of argument that the Constitutional Court followed in 1992. At that time, it first of all reached the conclusion that there existed a contradiction between the Union Treaty and the Spanish Constitution, and then went on to argue that this could not be resolved by way of Article 93, which was an organic-procedural precept applicable to a certain type of treaties which, as with other types of treaties, was fully subject to Article 95.1 of the Constitution (pursuant to which, “the signing of an international treaty which contains provisions that are contrary to the Constitution shall require the prior amendment of the Constitution”). The starting point, now, is that Article 93 has “a substantive dimension” which, amongst other things, brings with it the opening of our legal system, including the constitutional text, to the European system, discarding on the basis of such an opening, in principle, a domestic constitutional control over the latter provided that it remains in line with the essential principles and values of our Constitution, which effectively occurs in the light of the subsequent examination of the Constitutional Court.Google Scholar

15 Introduced under the pro-tempore Irish presidency at the request of the United Kingdom and Portugal (cf. IGC 43/03, PRESID 7).Google Scholar

16 Cf. Memorandum submitted before the European Union Committee of the House of Lords by Dutheil de la Rochère and A. Iliopoulou, The Future Role of the European Court of Justice. Report with Evidence, 6th Report of Session (2003-2004).Google Scholar

17 Cf. the Memoranda also submitted before the House of Lords by Besselink, L. and Weatherill, S. According to the Opinion issued by the Spanish Council of State on the European Constitution, the inclusion of primacy in the Treaty “has to have a more profound effect than the choice of a principle by way of case law – thereby capable of being applied with flexibility by way of the “dialogue amongst Judges” – if one does not wish to undermine the very effectiveness of the Treaty”.Google Scholar

18 Bearing in mind the constitutional pluralism attaching to the nature of European integration: cf. I. Pernice, Multilevel Constitutionalism and the Treaty of Amsterdam: European Constitution-making Revisited, 4 Common Market Law Review 707 (1999); MacCormick, N., Juridical Pluralism and the Risk of Constitutional Conflict in: Questioning Sovereignity. Law, State and Nation in the European Commonwealth 104 (1999); F.C. Mayer, The European Constitution and the Courts. Adjudicating European Constitucional Law in a Multilevel System 20 (2003); K. Lenaerts, Interlocking Legal Orders in the European Union and Comparative Law, International and Comparative Law Quarterly, 873 (October 2003).Google Scholar

19 Or can there be any doubt as to the beneficial influence on fundamental rights exerted by the Constitutional Courts of Germany and Italy in the short – by way of praetorian protection at a European level – medium – by way of the solemn political proclamation of the Charter – and long – by way of its inclusion in the European Constitution – term?Google Scholar

More specifically, and for purposes of example (within the context of the European banana-import régime), comparison may be made with the tussle between the German courts (including the Bundesverfasungsgericht), and the Court of Justice, which led the latter, as highlighted by Iglesias, G.C. Rodríguez and Gálvez, A. Valle, “to the acknowledgement in Atlanta Case of the power of the jurisdictional bodies to impose positive interim measures with regard to a national act based on a European Regulation (the refusal of which would have entailed, according to the Verwaltungsgericht Frankfurt am Main, the violation of the principle of effective legal protection by way of the granting of interim measures in favour of the private individuals against the administrative acts of the national authorities, which right is recognized, according to the case law of the German Constitutional Court, by section 4 of Article 19 of the Fundamental Act), and in T. Port Case, to interpret Regulation 404/93 to mean that the Commission may regulate cases of excessive rigour (given that had the opposite been the case, the application of the European Regulation could have led to an infringement of the right to property guaranteed by Article 14 of the Fundamental Act)”, El Derecho Comunitario y las relaciones entre el Tribunal de Justicia de las Comunidades Europeas, el Tribunal Europeo de Derechos Humanos y los Tribunales Constitucionales nacionales, 2 Revista de Derecho Comunitario Europeo 337 (1997), note 9. As a corollary to this tense but fruitful dialogue, the BVerfGE, by way of Decision 7 June 2000, declared inadmissible the question of unconstitutionality posed precisely by the Verwaltungsgericht Frankfurt am Main against certain precepts of the aforementioned Regulation 404/93, arguing, inter alia, that there were insufficient grounds with regard to the unconstitutionality of the rule that was challenged, in so far as it would have ignored the said dialogue as a result of which the Court of Justice would have acknowledged, as we have just seen, the necessity for an (interim) regulation of rigour arising from the guarantee of property.Google Scholar

20 By way of example, cf. the national Reports submitted on the occasion of the 17th (Berlin, 1996) and 20th (London, 2002) Congress of the F.I.D.E. on this matter, respectively, National Constitutional Law vis-à-vis European Integration y European Union Law and National Constitutions.Google Scholar

21 The same opinion is expressed by Comella, V. Ferreres and Arnaiz, A. Saiz in their comment that has already been referred. The French Constitutional Council, for its part, held in its Decision of 19 November 2004 (no. 2004-505, Treaty establishing a Constitution for Europe) that “it is apparent from the overall provisions of this treaty, and in particular from the connection between its Articles I-5 and I-6, that it does not alter the nature of the European Union or the scope of the principle of primacy of Union Law as may be seen […] from Article 88-1 of the Constitution”.Google Scholar

22 Called by the European Court of Human Rights “constitutional instrument of European public law” (Loizidou case, of 23 March 1995).Google Scholar

23 Cf. The General Provisions of the Charter of Fundamental Rights of the European Union, 4 European Law Journal (2002).Google Scholar

24 I have recently been stressing the importance of channelling national judicial control over secondary European Law towards its natural field, which is none other than the European legal system itself, with the Treaties at the summit, in: El Juez español y el Derecho comunitario 120 (2003); and El juez nacional como juez europeo a la luz del tratado constitucional in: Constitución europea y Constituciones nacionales 600 (Cartabia, M., De Witte, B. and Tremps, P. Pérez, eds., 2005). It should furthermore be noted that this ruling out of internal constitutionality control over secondary Law is the general consensus gleaned from the national constitutional jurisdictions at the Conference, dedicated precisely to that question – Contrôle de constutionnalité et Droit communautaire dérivé – organized by the French Constitutional Council on 26 and 27 September 1997 (cf. the General Report and the Conclusions, in Cahiers du Conseil Constitutionnel, 1997, no. 4). And it should also be noted that the doubts that the question raised for the organizer of the Conference itself have to a great extent been dispelled during June and July 2004: cf. its Decisions of 10 June 2004 (no. 2004-496, confidence in the digital economy), 1 July 2004 (no. 2004-497, electronic communications and audio-visual communication services), and 29 July 2004 (no. 2004-498, bio-ethics, and no. 2004-499, protection of personal data).Google Scholar

25 It should be borne in mind that the Constitutional Treaty clearly attempts to inherit the legacy of the European Community, continuing along the path, as we have already seen and as was contained in the Preamble to the European Economic Community Treaty, of “ever-closer union between the peoples of Europe”. “Convinced that, while remaining proud of their own national identities and history,” the Preamble of the Constitutional Treaty now states, “the peoples of Europe are determined to transcend their former divisions and, united ever more closely, to forge a common destiny”. And the way in which to forge that common destiny is going to continue, is to be inspired by the traditional dynamism of a progressive deepening of integration, which will manifest by intensification, and as the case may be, expansion, of the Community or supra-national rules for the functioning of the Union in the management of the powers transferred by the Member States. Proof of this is the very first article of the new Treaty, pursuant to which “reflecting the will of the citizens and States of Europe to build a common future, this Constitution establishes the European Union, on which the Member States confer competences to attain objectives they have in common”. For which, it continues, “the Union shall coordinate the policies by which the Member States aim to achieve these objectives, and shall exercise on a Community basis the competences they confer on it”.Google Scholar

Thus the desire to inherit a certain modus operandi is explicit, giving continuity in substance to an expression, the “Community” method, which otherwise would have run the risk of having to accept a reduced relocation for the purposes of European integration history. And the said inheritance is accepted, as I was saying before, in terms of intensification and expansion of the integration, which are intended to become more coherent and systematic.Google Scholar

Therefore, in contrast to the classical way the Union is presented as a Greek temple resting on three well-differentiated pillars, to wit, the European supra-national pillar and the inter-governmental pillars dedicated to Common Foreign and Security Policy, and to Co-operation in the Areas of Justice and Home Affairs (the clear separation of which began to be distorted, especially with regard to this third pillar, by the Treaty of Amsterdam), the Constitutional Treaty puts forward a more homogeneous vision of the Union, concentrating on its supra-national aspects, adjusted in intensity both up or down within the common framework of Title V of Part I, dedicated to the “Exercise of Union Competence”. The starting point is therefore going to be the said Title V which, after setting forth the legal instruments the Union is acknowledged as having for the exercise of the powers granted under the heading of “Common Provisions”, inspired by Community methodology, goes on to define, by way of “Specific Provisions”, its role in the field of Common Foreign and Security Policy (including as an integral part the Common Security and Defence Policy) and in the so-called Area of Freedom, Security and Justice; which particulars “on the down” in supra-national terms, will be accompanied by particulars “on the up” contained in the Chapter dedicated to “Enhanced Cooperation”, the aim of which, as the name suggests and as is set forth in its provisions, consists in “further the objectives of the Union, protect its interests and reinforce its integration process”.Google Scholar

However, we do not lose sight of the fact that this effort aimed at greater clarification in the process of the conceptual cohesion of the Union is carried out within a wider context of clarification of the exercise of European public authority, as well as the limits on the said exercise vis à vis the citizen, which aspects emphasize the “constitutional” content of the new Treaty.Google Scholar

26 In my opinion, under no circumstances could such a change result in a control over operating directly over secondary European Law, but rather, and having previously given the Court of Justice the opportunity to state its opinion on the matter, over primary European Law.Google Scholar

27 In France, for example, the Constitutional Council, in its aforementioned Decision of November 2004, considered that “the right that is recognized to the French Parliament to oppose an amendment of the Treaty pursuant to the simplified procedure provided for at Article IV-444, means that it is necessary to review the Constitution with the aim of allowing the exercise of such a prerogative”.Google Scholar

28 This “hard core” is, to a great extent, reflected in the Preliminary Title, the Section 1 of Chapter II of Title I and the Title II of the Spanish Constitution, subject to an especially rigorous procedure – that of Article 168 – in order to be amended.Google Scholar

29 Opinion of 20 June 1991 (file no. 850/91), in which it considered that it was possible to evade Title X of the Constitution (“Concerning Constitutional Amendment”) by way of Article 93, with the limit of “those constitutional matters which may only be reformed by way of the procedure of rigidity aggravated by Article 168 of the Constitution” (in the same line, cf. Opinion of 9 April 1992, file no. 421/92). The thesis supported at that time by the Council of State has been recently revived by its current President, F. Rubio Llorente, for the purposes of defending a reform “so that it says [Article 93] what the Council of State wanted to read in it, and which in its current drafting, as the Constitutional Court stated, it clearly does not say” (La necesidad de una reforma constitucional, Conference given on 28 October 2004 at the Centro de Estudios Políticos y Constitucionales, contained on its website).Google Scholar

30 FJ 4: “Pursuant to Article 93, Parliament may, in summary, transfer the exercise of ‘powers derived from the Constitution', not to dispose of the Constitution itself, contravening or allowing the contravention of, its provisions, given that, neither is the power of constitutional review a ‘competence’ the exercise of which is capable of being transferred, nor does the Constitution allow itself to be reformed by any way that is not its own Title X”.Google Scholar

31 And this is essentially at the root of what I consider to be the main change of Statement no. 1/2004 as regards Statement no. 1/1992.Google Scholar

32 I do not believe that it is in the spirit of the Constitution to put the interpretative method within the framework of ex-ante and ex-post control on the same level, bearing in mind, as was acknowledged by Statement no. 1/1992 and is now repeated by Statement no. 1/2004, “the disruption that an eventual declaration that an agreed rule is unconstitutional would cause to the foreign policy and international relations of the State”.Google Scholar

In fact, I consider that, despite the firmness of Statement no. 1/1992, its pronouncement could have been (and in my opinion, ought to have been) otherwise (in the light, inter alia, of the solid arguments arising in the request) with regard to the scope of Article 13.2 of the Constitution, if it had arisen not within the framework of an ex- ante control, but rather ex- post.Google Scholar

At this point, the Report of the Court of Justice by Wathelet, M. and van Raepenbusch, S. (admittedly on a personal basis) on the occasion of the XII Congress of the European Constitutional Courts Conference, held in the Palais d'Egmont in Brussels from 14 to 16 May 2002 (Les relations entre les Cours Constitutionnelles et les autres juridictions nationales, y compris l'interférence en cette matière, de l'action des juridictions européennes. Rapport de la Cour de Justice des Communautes Europeennes) may be brought in. “Certainly”, they state, “it corresponds to the national jurisdictions of the Member States to determine the scope and the limits of the constitutional grounds that allows a State to transfer powers to the Community”. But, they go on to say, “it would be very desirable that this control should be exercised beforehand, prior to the ratification of the Treaty, or at least, if done a posteriori, within a reasonable period” (to which they add that, in any case, “it is incumbent on the ECJ to decide on the validity of community acts, and respect for the powers attributed to the Community and to each one of its Institutions is naturally understood to be a control angle”).Google Scholar

33 P. Cruz Villalón refers to “reciprocal metaconstitutionality”. La Constitución inédita. Estudios ante la constitucionalización de Europa 73 (2004). It should not be forgotten that the violation of the principles and values of the Union, not only thwarts accession –to the Union- and determines the relations –of the Union– with third-party States, but also may give rise to the suspension of the rights resulting from Union membership (Article I-59).Google Scholar

34 FJ 6.Google Scholar

35 Which, by the way and as it happens, sows the seeds for the expansion of the Charter beyond the scope of Union Law. Article 10.2 states: “Provisions relating to the fundamental rights and liberties recognized by the Constitution shall be interpreted in conformity with the Universal Declaration of Human Rights and international treaties and agreements thereon ratified by Spain”.Google Scholar

36 FJ 2, seventh paragraph in fine.Google Scholar

37 FJ 2, fifth paragraph.Google Scholar

38 Article I-60.2: “A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article III-325(3). It shall be concluded by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament”.Google Scholar

39 Which was done for example in Maastricht with the Union and Community Treaties, adopting the Protocol on Article 40.3.3 of the Irish Constitution in order to overcome the hypothetical conflicts between the free provision of medical services –contained in European Law– and the protection of the nasciturus –provided for in the Irish legal system (hypothetical conflicts that, by the way, had remained unresolved following a careful operation by the Court of Justice –Grogan Case- in terms of, as I have called elsewhere, “judicial pragmatism” –Derecho Comunitario 654 et seq.- also a manifestation of the practical modulations to primacy to which I referred ut supra).Google Scholar

40 Against the supposed “permanent limitation” of sovereignty referred to by the Court of Justice in Flaminio Costa, to which it has never — save for error — referred again and which was contested by the German Federal Constitutional Court in its Judgement on the constitutionality of the Maastricht Treaty: “Germany is one of the ‘lords of the treaties', which justified its accession to the Union Treaty, subscribed for an unlimited period of time (Article Q TUE) with the desire to remain as members for a long time, although, in the end, they may annul such membership pursuant to an act to the contrary”; a rejection, therefore, of the permanent limitation of sovereignty proclaimed by the Court of Justice, which reappears on the occasion of the irreversible nature of the progression of the Community into the third stage of the Economic and Monetary Union affirmed by the Protocol of the Union Treaty dedicated to the transition to the said stage, with the Constitutional Court stating that Monetary Union, configured “as a community that is committed to long-term stability and that in particular ensures the stability of the value of money”, would not oppose, “by way of ultimate ratio”, to “the separation of the Community in the event the Community is attained deficiently with the aim of stability”.Google Scholar

The Spanish Constitutional Court had maintained a similar line, where in its Statement no. 1/1992 it recalled the Flaminio Costa doctrine with its “limitation of ‘sovereign rights’ to use the expression of the Court of Justice”, thereby avoiding any reference to the “permanent” nature with which the Court of Justice had assessed, also expressly, said limitation.Google Scholar

Omission which was also made by the Belgian Cour de Cassation in its Le Ski judgement, of 27 May 1971, a leading-case, curiously, for the recognition of the primacy of European Law on the exclusive basis of International Law, in general, and of European Law, in particular. Cf. H. Bribosia, Report on Belgium, in The European Courts and National Courts 17 (Slaughter, A.M., Stone, A. and Weiler, J.H.H., eds., 1997).Google Scholar

41 Intensified, furthermore, by the fact that it is the Union that, as we have seen, has to negotiate with the State with regard to the manner of the withdrawal, with the final agreement being concluded by the Council by way of a qualified majority following the consent of the European Parliament. Cf. K. Lenaerts and D. Gerard, The Structure of the Union according to the Constitution for Europe: The Emperor is Getting Dressed, 3 European Law Review 306 (2004).Google Scholar

42 This thesis has been defended in our academy by Pagés, J.L. Requejo, Sistemas normativos, Constitución y Ordenamiento. La Constitución como norma sobre aplicación de normas 57 (1995).Google Scholar

43 Cf. for example, the Judgement of the Supreme Court of 26 January 2000 (Ar. 10108), in which it is emphasized that “the eventual compatibility of the governmental rule that has been challenged in a administrative judicial appeal with a parliamentary act is not an obstacle to the courts of this jurisdictional order being able to acknowledge that the governmental rule does not conform with Community law and, in application of the principle of the primacy of Community law over national law, annulling it”.Google Scholar

44 And which, in addition to the lack of jurisdiction of the Constitutional Court itself to intervene in this regard as it considers contradiction with Community Law not to be a problem of “constitutionality”, makes it impossible for them, arguably and already prior to Statement no. 1/2004, to be annulled with erga omnes effect.Google Scholar

45 It is obvious that I am assuming that the line of argument of the Constitutional Court does not cover the Constitution itself; otherwise we would be in the impossible situation of covering up a clear overruling of Statement no. 1/1992 (which is in turn at odds with the very reasoning of Statement no. 1/2004: cf. in this regard V. Ferreres Comella, La Constitución española ante la cláusula de primacía del Derecho de la Unión Europea (2005).Google Scholar

46 Control in such terms and with such effects over the regulatory rules that the new Administrative Jurisdiction Act 1998 would extend to the field of indirect challenges – i.e. in the event of challenging its application acts – activating, as the case may be, after having performed the selection of the applicable rule, the “question of illegality”.Google Scholar

47 With regard to Common Foreign and Security Policy, the starting point for the Constitutional Treaty (Article III-376) is the traditional exclusion of the competence of the Court of Justice ratione materiae.Google Scholar

48 Or it inadvertently forgot about it, as happened to the Council of State: “It should be borne in mind”, reads its Opinion on the European Constitution, “that the unconditional scope of the principle of the primacy of European Law (“Union Law” to use the expression in the heading of Article I-6) affirmed by the European Court of Justice, does not exactly coincide with the recognition of this principle as made by the Constitutional Courts of the Member States …”.Google Scholar

49 To this effect, for example, K. Lenaerts and P. Van Nuffel, Constitutional Law of the European Union 605 (1999).Google Scholar

50 To this effect, for example, A. Von Bogdandy and M. Nettesheim, Ex Pluribus Unum: Fusion of the European Communities into the European Union, 3 European Law Journal 283-284 (1996).Google Scholar

51 Cf. Lenaerts, and Gerard, D., The Structure of the Union according to the Constitution for Europe: The Emperor is Getting Dressed, cit., 301.Google Scholar

52 Cf. in this regard the aforementioned Report of the House of Lords, The Future Role of the European Court of Justice, 35-36.Google Scholar

53 Bearing in mind, nonetheless, that the aforementioned starting point of the Constitutional Treaty in terms of exclusion of the jurisdiction of the Court of Justice, becomes immediately pointed when said competence is admitted (second paragraph of Article III-376) with regard to “proceedings brought in accordance with the conditions laid down in Article III-365(4) [which regulates the capacity of natural or legal persons to challenge the activity of the Union directly before the courts of the Union], reviewing the legality of European decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter II of Title V [with regard to the CFSP]”.Google Scholar

It is, therefore, clear, that irrespective of the powers that the Court of Justice now has, and that the Constitutional Treaty takes on in Article III-376 itself, in order to ensure that the CFSP measures and procedures do not infringe the competences of the European Community (second paragraph ab initio), as well as in order to try economic sanctions adopted as part of the Community framework in the application of decisions adopted in the field of CFSP, the Court of Justice now has explicit powers over matters of CFSP itself that restrict the legal sphere of natural or legal persons.Google Scholar

The Constitutional Treaty, for its part, also includes the possibility —currently precluded— of subjecting international agreements entered into in the scope of CFSP to a prior constitutional control on the part of the Court of Justice (Article III-325.11) (cf. notwithstanding the doubts that this raises for G. Gaja in his Memorandum presented to the House of Lords, in The Future Role of the European Court of Justice).Google Scholar

54 Which absence, as is recalled –and applauded– by Tridimas, T. in his Memorandum presented before the House of Lords, is familiar to many Member States concerning respective foreign policies; cf. also in this regard the significant contributions by Papier, H.J. –President of the German Federal Constitutional Court– and R. Errera –honorary French Council of State member– emphasizing the wide margin of discretion attributed to the national executives in this matter.Google Scholar

With regard to Spain, it should be recalled that Article 2 b) of the Administrative Jurisdiction Act 1956 excluded from its jurisdiction the hearing of cases on “questions arising with regard to the political acts of the government, such as those that affect the defence of the national territory, international relations, the interior security of the State and military command and organization, without prejudice to the compensation that may be appropriate, the determination of which does correspond to administrative jurisdiction”. On the history of the political act and its abolition first with the 1978 Constitution and then with the new 1998 Act, cf. S. Muñoz Machado, Tratado de Derecho Administrativo y Derecho Público General. Tomo I 585 (2004).Google Scholar

55 So as the House of Lords itself concludes (point 103, note 30), it is debatable whether the Foto-Frost doctrine (which proclaims the monopoly of the Court of Justice over negative trials of the validity of European Law) would be applicable here.Google Scholar

56 I take this expression from Weiler, J.H.H., Dos visiones norteamericanas de la jurisdicción de la Unión Europea 67 (2000).Google Scholar