EU Law Does Not Come Over us Like The Ten Commends - conversation with Peter M. Huber

In the development of the law of the European Union as well as in defining its relation to national laws and constitutions, the Court of Justice of the European Union (CJEU) has been playing a leading role for decades. From the principle of primacy or supremacy to the state liability for failing to transpose EU legislation are all judge-made doctrines. On the other hand, constitutional courts or equivalent judicial forums of Member States have become increasingly involved in reviewing legislative, executive or – as the recent decision of the “Bundesverfassungsgericht” concerning the Public Sector Purchase Program (PSPP) showed – even judicial decisions of the European Union based on the provision of the national constitutions. What major roles, in your view, do national constitutional courts play concerning the law of the EU?

First of all, in Karlsruhe we do neither use the term supremacy nor primacy if we describe the relationship between EU law and national law. Instead, we have used the term “precedence (of application)” for decades which is correctly translated into German as “Anwendungsvorrang”. Hegel has pointed out that if you want to understand an issue you have to use the right term and he was right. Precedence of application – Anwendungsvorrang – contrary to primacy or supremacy does not entail the idea of a hierarchical relationship between European law and national law which is more precise.

If there was a hierarchy, it would be the other way around.

Almost all Member States claim that the EU law is applicable in the respective countries only because national constitutions allow its application and national legislators have adopted treaties that at least implicitly acknowledge that there must be some sort of precedence of EU law within the integration program (Integrationsprogramm). Against this background the idea of a limitless primacy of EU law or the stipulation of an autonomy that it renders independent from the treaties and the Member States as it is promoted by EU institutions and the CJEU since it often cited decision Costa v ENEL from 1964 which frames European law as a “Deus Ex Machina” or the “Baron von Münchhausen” who drew himself out of the swamp by his own hair is not a legally or dogmatically convincing interpretation of the Treaties in which you find plenty of prescriptions that support our perspective but none which backs the point of view of EU institutions (this even applies to protocol 17). Furthermore, this is definitely not the way Constitutional and Supreme Courts throughout Europe see it. We all want the European integration to progress and foster but we have to maintain a balance of powers as far as the EU and Member States’ institutions are concerned.

How can the European integration preserve such a balance of powers?

Given the fact that EU institutions are very poor shepherds of both the principle of conferral and the distribution of powers between the EU and the Member States, there must be some kind of counterbalance. According to my experience this counterbalance role can only be fulfilled by national constitutional and supreme courts. This is also a legitimate way to check the EU decision-making because its democratic legitimacy cannot really be traced back to the European Commission or on any other EU institution. The source of democratic legitimation and legitimacy is that the 27 Member States have approved a concept according which the nation states work together and pool some of their sovereign competences. This system has worked for more or less 60 years and his worked the more convincing the clearer objectives of European integration were – the Single Market, the space of freedom, security and justice etc. However this system has become precarious with the widening of EU competences which did not go along with a change in the self-understanding of the CJEU as a motor of integration and its reluctance to adjust its jurisprudence to a changed situation.

On the contrary, the

CJEU has continuously strengthened the instruments that ultimately foster centralization

and has more or less ignored those principles that provide for pluralism and diversity: the principles of subsidiarity and proportionality or the principle of conferral. I´ve checked the entire jurisprudence of the CJEU since 1951 and I found only three and a half cases in which the Court has held that the European Communities resp. the European Union as such did not have competence. This clearly shows that

so far the CJEU cannot be considered as a fair and reliable arbiter between the EU and the Member states.

If you look at the Federal Constitutional Court however, you will find out that in the same period of 70 years there are hundreds of cases in which it as denied a competence of the Federation in favor of the Laender. Against this background accepting the idea of primacy as it is stipulated by EU institutions would be a complete subjection under the jurisprudence of the CJEU without constitutional reservations would not only neglect the role of national constitutions as supreme law of the respective lands but also encourage this development towards an increasing centralization. In Germany Article 23 GG expressively states that Germany will only participate in European integration if our constitutional identity is respected. It is neither for the European Commission nor for the CJEU to define what our national constitutional identity is. To sum up, the Federal Constitutional Court does not want to become a little CJEU, but it will remain the custodian of last resort in cases in which the jurisprudence of the CJEU is obviously not acceptable under the principles that make up our constitutional identity including the principle of conferral as part of popular sovereignty (art. 20 par. 2 sentence 1 GG).

You mentioned constitutional identity. I am wondering how it relates to the so-called “ultra vires” review that serves as a guarantee against that the European Union exceeds its competences.

According to the case law of the Federal Constitutional Court the “ultra vires” review is one instrument derived from constitutional identity with respect to the principles of democracy and popular sovereignty (art. 79 par. 3 read in conjunction with art. 20 par. 1 and 2 GG). Its idea is that German citizens should not be subjected to measures they have not legitimated and which they can not influence by their vote. If a measure of the EU has not been authorized by the treaties and thereby by Parliament (Bundestag) – the same applies for other member states – it lacks democratic legitimation. An “ultra vires” act must be evidently beyond the empowerment and have some relevance for popular sovereignty.

Besides there is a discrepancy between national identity as it is guaranteed under Article 4 paragraph 2 TEU, which says that European Union is obliged to respect national identity and constitutional identity as basis of the constitutional control of EU institutions whose basis is art. 23 par. 1 sentence 3 and art. 79 par. 3 GG. National identity is a boarder scheme than constitutional identity which does not only include institutional and legal guarantees. If you look at Ilonka Sayn-Wittgenstein v. Landeshauptmann von Wien case, which relates to the recognition of the title of nobility you may say that – if the case had played in Germany - the abolition of the nobility is definitely part of the republican national identity since 1919 and laid down in the Weimar Constitution, but it is probably not part of the constitutional identity under the Grundgesetz as long as there are no privileges of the nobility at stake. “Princess” is just a name. Another example: At the moment we have a case pending called Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung e.V., which is about how a Protestant Church can select its employees, and to what extent the prohibition of discrimination reaches in that respect. The CJEU has not touched the special relationship between the Church and the State though there are good reasons to assume that they form an integral part of our national identity in the sense of art. 4 par. 2 TEU. However with regard to the identity or ultra vires control the question will be whether the prescriptions on state – church – relations which have been drafted by the Weimar Constitution are also guaranteed by art. 79 par. 3 GG or whether they are exempt from European integration. Therefore, national identity, if it is understood in a broader sense can be interpreted by the CJEU, while constitutional identity is a taboo for EU institutions.

What is the so-called “Verfassungsgerichtsverbund” and what its major purpose in shaping the European judicial area?

The term “Verbund” was a creation of our Maastricht-judgment and was applied to the structure of the European Union as such when it was created. The idea was that the European Union did not become a federal state, a “Bundestaat”, but nevertheless a very close alliance of states, much closer than typical alliances like EFTA, NATO, ASEAN etc. which in German are described as “Statenbund”. The Staatenverbund is a cohesion between sovereign states that are tied together in a very intense way as their institutions cooperate. It means that their branches of power cooperate in order to fulfill their tasks. For example, States’ governments operate through the European Council where they issue legislative acts that have to be implemented by national parliaments which are included in the European legislative process on an earlier stage (art. 12 TEU). Administrations – the Commission and agencies have to cooperate in many cases with national administrations. Administrative acts are often to a result of their cooperation in areas like state aids, competition protection or environmental issues. Thirdly, we have an intense cooperation between courts too. According to Article 19 TEU every national court is also considered an EU court in a functional sense because it has to apply EU law. The same is true if you look at the structure of the EU law.

EU legislation doesn´t come over us like “the ten commends” of Moses.

A lot of institutions and concepts in EU are derived from the constitutional and legal orders of the Member States. If you look at the Charter of Fundamental Rights and the former jurisprudence of the CJEU, they were developed from the common understanding of the Member States. If you look at the early judicial decisions of the 1950s, the requirements that have to be reflected in EU law were not invented or made from scratch. Instead, they were adopted from the heritage of the respective national legal orders. Against this background courts too have to cooperate in securing the legal order of the European Union, which consists of the EU law corpus and the national law. I always describe it as a table with twenty-seven feet. The table plate alone would not stand without the legs as they are bound together in order that they work. As the legal orders are fixed in this way it proofs legitimate that courts in the European judicial area have to cooperate and that Constitutional and Supreme Courts have a special say in that cooperation as they have the last say in the respective Member States.

The recently launched Conference on the Future of Europe aspires to provide a forum for discussion about the potential reforms of the EU as well as about the future of the European continent. How do you the Conference unfolds?

I am a bit sceptical as far as this Conference is concerned. Especially if you look at its composition and at the overall experience we have made with the European Convention on the Future of Europe my guess is that it will lead to a solidification of those forces who are interested in increasing the federal concept and no one else will have any decisive say. I had a Ph.D candidate who wrote his doctoral thesis on the European Convention and who has shown in a very clear analysis that from the perspective of the European Parliament, the Commission and the CJEU, this forum was helpful as they could outmaneuver the resilience of the Member States, national governments and the MPs from the member states that were more or less isolated. If Europeans want a federal state so be it. But beforehand, it is necessary that those twenty-seven Member States or whoever wants to be part of it,

let their people decide whether they want it or not.

It is not up to self-referential Conventions or Conferences that are based on nothing but the interests of European institutions to decide whether the European Union should be changed or evolved into a federal state and it is definitely not up to CJEU. The Grundgesetz, entails a provision that if the Constitution, our Supreme Law and foundation of the legal order is to be abolished in favor of a European Constitution, it is up to the German people to decide. And it is for Hungarians to decide it for Hungary and the French people for France and so on.

Nevertheless, the Conference could offer a unique opportunity to discuss questions concerning the reform of the competences or the composition of the CJEU as well as the interplays of national constitutional courts and the CJEU. What reform steps would you think worth considering in order to achieve a harmonious cooperation as well as an equilibrium that aims to better respect the constitutional structures and identities of the Member States? What reform steps should be necessary to encourage a cooperation among the CJEU and national constitutional courts that is sincere and are among equals?

I think the first step would be that our and other national constitutional courts’ reservations to the precedence of EU law are formally accepted. A second would be a change in the spirit cooperation is practiced. The CJEU must listen more intensely to what constitutional courts ask from it and must learn to weigh preliminary requests. It makes a difference whether a court of first instance asks a question or the court which is ultimately responsible for the integrity and coherence of the national legal order. If you look at the PSPP decision, we had some serious questions, some of which had already been put forward in our preliminary request in the Gauweiler case in 2014. For example, the dilemma of how we to deal with the European Central Bank as a very powerful but democratically scarcely legitimized institution that makes all ministers of economy superfluous and which is not effectively controlled neither by politics nor by courts. The CJEU however twice did not even address the question though independent authorities pose a problem to democratic legitimation of institutions. You can find that already in the Meroni v High Authority case from the 1950s.We indicated that Article 47 of the Charter of Fundamental Rights of the European Union requires full assessment of facts. The CJEU ignored this claim too. It just stuck to what the respective EU institution had declared. However, when it comes to Member States, they are treated completely differently. The CJUE makes assessments of facts to the last details, even into footnotes of legislation. With regard to the EU institutions, it does not exercise such control. The CJEU thinks because it stipulates the primacy of EU law and its mandate national courts just have to follow.

What it expects is obedience not dialogue.

This is not the way the CJEU can deal with national constitutional and supreme courts. We do not want a special treatment but if there are arguments that are perhaps not very comfortable for them, and which might cause tensions within the CJEU it has to deal with them in a fair, honest and open way.

National judges are generally required to be up to date and continuously learn EU law. I am wondering weather we can expect EU judges to learn about the national constitutions as well as about the jurisprudence of constitutional courts.

I absolutely share your view. I think this should be a necessity as far as the core structures of constitutional law are concerned.

Europe will not work with a top-down governance system.

Thus, EU institutions have to be aware of the differences and peculiarities if they want to be successful. In the same vein, the European Commission would be better advised if it knew a little bit more about what is happening in the Member States and their legal orders. At present it seems to be very self-referential. Legal and constitutional comparison is an indispensable tool to apply EU law. Therefore, EU lawyers and people who deal with the law of the European Union should speak more than “bad English”. Every European Union employee should speak at least three languages and they should understand more how the different Member States work. Otherwise fragmentation, reluctance and hostilities in the Member States will grow and ultimately put the European Union as such in danger. Europe shall be successful but not as a foreign power that rules upon us.

How could public law reforms such as the concept of the “reverse” preliminary ruling might enhance or solidify the European cooperation in the future?

The idea is that Article 4 paragraph 2 of the Treaty on the European Union already entails the duty of EU institutions to respect national identity. As I´ve mentioned earlier, in a legal sense constitutional identity at least in our country is the core of a broader national identity in a legal sense. Against this background the CJEU should not decide on its own poor knowledge of national constitutional law, on how it is to be interpreted or how it has to be dealt with.

It should instead ask the competent courts of the Member States in the same way as they do if they have to apply and interpret EU law.

I already mentioned the Egenberger case. The German Federal Labor Court had a very peculiar understanding of the special role the churches have to play as employers. They put forward this peculiar understanding in their preliminary request to the CJEU. The Constitution however entails provisions concerning church-state relationship and it is generally known, that the Federal Constitutional Court has decided at least thirty cases in his respect. The Federal government put this argument forward in the case, unfortunately without success. It would have been quite reasonable had they asked us, especially as they did not know what was right. A potential conflict could have been avoided this way and this can be the case in a lot of other procedures too. Nonetheless I do not think it is likely that the Conference will pick this idea composed as it is. In addition, the CJEU doesn´t have a major interest in a sincere cooperation. However, if they want to do something good, they should really think over this possibility.

The 15th facultative protocol to the European Convention of Human Rights entered into force throughout the summer. That protocol emphasized the role of subsidiarity and the margin of appreciation. Would it be a good reform step if the European Court of Human Rights would become a kind of “last resort” court after the CJEU as the Treaties require?

The principle of subsidiarity is also mentioned in the Treaty on European Union. I think that the approach of subsidiarity of the European Court of Human Rights would be a good example for the Luxemburg court to follow. As you said, we do not even have to modify the Founding Treaty to achieve this, everything is there already. Nevertheless, we should not believe in fairytales.

This is about power and the CJEU is not interested in limiting its power.

That is human, and every institution tends to enlarge their scope of influence. This is why people in 18th century detected the separation of powers as a good instrument to contain too much eagerness.