Supremacy of European Law revisited: New developments in the context of the Treaty Establishing a Constitution for Europe Submitted

by Darinka Piqani Introduction One can for sure say that 50 years of Europe are a good reason for Europeans to be proud: the Union, embedded in the European Community based mainly in the idea of economic cooperation, has successfully and rapidly been transformed into a giant entity which is looking for more intensive integration and closer cooperation. The establishment and enforcement of the four liberties, as the cornerstones of the community, the founding of the union in order to enhance collaboration in areas other than economic cooperation, the Euro and the Schengen agreements, and lately, the biggest enlargement of Europe together with the Treaty Establishing the European Constitution, - just to mention some of the main achievements - have conveyed to the world the strong ambition of Peoples of Europe for a common struggle toward prosperity and development. It goes without saying that, one of the premises of economic and political integration, is legal integration and cooperation, both in the vertical and horizontal sense, namely legal integration between the Union and Member States, and among Members States themselves. This would imply a process of fusion between different legal orders, without loosing their individual characteristics, by involving mechanisms of giving- andreceiving, cooperation, loyalty to the common legal order established through the will of sovereign states. However, one might ask how easy has it been for Member States to surrender their prerogatives and sovereign powers to the Union? Has it been trouble-free for them to absorb and give precedence to the provisions of a different legal order, i.e. the European legal order, which on the other hand, might sometimes result alien to their own legal orders and fundamental principles? All these issues, both in theory and practice, point at one of the most crucial principles of European Law that is the principle of supremacy of European law. At the end of the day, the principle itself reflects issues of relation between European Union law and national law, which seem not to be settled yet. The matter becomes even more intriguing in the new context of an enlarged Europe with 10 new Member States from the East block and in the process of ratification of the European Constitution. Since 1964 in the Costa v. Enel 1 case, where the European Court of Justice (hereinafter referred to as ECJ) established the principle of supremacy of Community law, a vivid debate between ECJ and national constitutional courts has taken place. At the end of the day, there is a very clear European perspective on the issue of supremacy of Community
LLM in Comparative Constitutional Law with Specialization in European Union Law, Central European University, Budapest (Hungary). PhD Candidate at European University Institute, Florence, Italy. Email: [email protected] 1 Case 6/64, Costa v.Enel [1964], Court of Justice of the European Communities.

law over conflicting national law: as Monica Claes puts it ...under the principle of supremacy, precedence must always be given to Community law over conflicting national law however framed and including national constitutional provisions 2 . On the other hand, it has been quite difficult for constitutional courts of Old Member States to perceive the principle of supremacy in the same ay as the ECJ: the Italian and German constitutional courts - at least at the very early stages of the supremacy debate have been the most troublesome courts when it comes to giving away their power of constitutional review of secondary community law under national constitutional standards. The last enlargement of the European Union has given a new dimension to the supremacy debate in Europe. Constitutional Courts of Central Eastern Europe countries are elaborating their own doctrine on issues of relation between European Law and national law, with special regard to national constitutional provisions. They tend not to hinder the integration process, but in the same time show strong concerns of not giving up their task as guardians of national constitutions. Furthermore, the ratification process of the European Constitution is contributing significantly to the supremacy debate in Europe. Recent jurisprudence of the Spanish and French Constitutional Court with regard to the primacy clause make the debate even more interesting and demonstrate clearly that supremacy is being discussed within a new framework: that of the Constitutional Treaty, and is acquiring new dimensions. The present paper will analyze the notion of supremacy/primacy of EU law in the context of latest developments in Europe after the last enlargement and especially in the ambit of the European Constitution. The aim of this article is to show that supremacy of EU law is still an evolving and debatable concept which is being shaped and given new dimension through its codification in article I-6 of the European Constitution and the constitutional jurisprudence of constitutional courts of Member States. The paper begins with a short summary of the evolution of supremacy since Costa v. Enel. One can distinguish four stages of this process: the first stage starts with ECJs decision in Costa and followed by different reactions by constitutional courts of member states. This is followed by a second series of challenges of the Treaty of the European Union (Maastricht cases). Furthermore, the last enlargement of 2004 brought new challenges to European acts which are worthy to be considered shortly here. At the end, there have been some challenges to the European Constitution with special regard to the primacy clause. Second chapter shall reconsider the scope of the principle itself by discussing whether supremacy concerns only Community law or also EU acts enacted in the framework of the second and third pillar. Moreover, it will give an overview of the principle in the

Monica Claes, The National Courts Mandate in the European Constitution, Hart Publishing 2006, pg. 559.

Treaty Establishing a Constitution for Europe and will focus on the debate on the codification of the principle. Third part of the paper shall focus on recent challenges to the Constitutional Treaty and will analyze the supremacy issues through the looking glass of the French and Spanish constitutional courts.

1. Evolution of the principle The principle of supremacy of European Community Law was introduced by the ECJ in the Costa v. Enel. Therefore, it is a jurisprudential creation of the ECJ. The reasoning the court took different steps: first, the Court clarified again that the EEC Treaty has created its own legal system which became integral part of the legal systems of the Member States and which their courts are bound to apply. Moreover, it ruled that [...] the law stemming from the Treaty, an independent source of law, could not because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question 3 . Reactions to this decision were different in several Member States. In general, it can be noted that generally, the principle of supremacy over ordinary national law has been accepted by Member States 4 . There have been more difficulties in accepting absolute supremacy over national constitutional provisions. As an example one can bring pieces from the jurisprudence of the Italian and German Constitutional Courts. The Italian Constitutional Court in Frontini held that the 1957 Act ratifying the EEC Treaty did not violate the Constitution. However, it was careful to reserve to itself the right to review the continuing compatibility of the Treaty with the Constitution in case [...] Article 189 of the Treaty were ever interpreted as to give the Institutions of EEC the power to violate the fundamental principles of the Constitution or the inalienable rights of man [...] 5 In the Granital case of 1984, the same court, gave precedence to Community law, but emphasized again [...] its competence over any aspect of the relationship between Community law and municipal law 6 . The same can be said for Fragd decision. However, in all these decisions, the reasoning of the court has been more skeptic to Community law than their final ruling: no implementing law has been found to be unconstitutional. As for the German jurisprudence, one cannot neglect mentioning here the Solange I and II cases, where the German Constitutional Court showed concerns for the protection of
Case 6/64, Costa v. Enel [1964], Court of Justice of the European Communities See Bruno De Witte, The Nature of the Legal Order, in Paul Craig and Grainne De Burca (eds), The Evolution of EU Law, 1999, pg. 193-205 5 Case no. 183/73, Frontini v. Ministero delle Finanze, in Andrew Oppenheimer, The Relationship between European Community Law and National Law: The Cases (eds), Cambridge University Press, 2005. 6 Case no. 170/84, Spa Granital v. Amministrazione delle Finanze dello Stato, in Andrew Oppenheimer, The Relationship between European Community Law and National Law: The Cases (eds), Cambridge University Press, 2005
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fundamental rights, the Kompetenz-Kompetenz doctrine introduced by the same court first in Kloppenburg and then in Maastricht decision. At the end of the day, even after the Banana litigation, the Bundesverfassungsgericht, stepped back by deciding to put in stand by its power to review secondary community legislation for the sake of protection of fundamental rights as the level of protection in the European Union was found to be satisfactory. All these old concerns about the relationship between European and national law, the reception of the principle of supremacy of European law by member states, and the resistance by national Constitutional Courts of giving away the power of judicial review of European Union law in the light of national constitutions, have reappeared since 2000 with a series of challenges to European law/secondary European legislation as implemented by national legislation. This time, challenges originate not only from Old Member states, such as Germany, France, Spain but also from the new members of the European club, namely some of the European countries of the East block. For someone interested on issues of relation between European and national law, it is impossible not to mention the newest challenges of EU law concerning the European Arrest Warrant (hereinafter referred to as EAW 7 ) as implemented by national law, challenges which target other important European measures (such as the surplus stock, sugar quotas, accession treaty etc), and lately challenges to the Draft Establishing the European Constitution.

2. Extending supremacy to European Union law? This chapter will focus on two theoretical problems which have caused recent discussions regarding, namely, the scope of the principle of supremacy and the codification by the European Constitution of the principle of primacy of European Union law. In other words the debate can be reduced in: can acts of the second and the third pillar take precedence over national ordinary or primary law, in case of a potential conflict? Could constitutional courts in case of an abstract review procedure/or preliminary reference regarding mostly national laws implementing third pillar acts, make reference and apply supremacy? And with regard to primacy/supremacy issue, shall the Constitutional Treaty make a difference with its codification of the principle? 2.1 Consistent interpretation and framework decisions: disguised form of supremacy of EU law? Legal scholars dealing with EU law issues tend to be very careful when discussing or making reference to the principle of supremacy of Community law, by clarifying from the very beginning the scope of the principle. There are no doubts with regard to the supremacy of Community law over conflicting national law: priority should be given to provisions of Community law over conflicting national law, here including national constitutional provisions. The principle was introduced by ECJ in Costa case at the early
7

2002/584/JHA: Council Framework Decision dated 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, OJ L 190, 18.07.2002

stages of the European Community and when the cooperation between Member States was only at the supranational level and under a distinct supreme legal order, i.e. Community legal order. As for European legislation enacted under the second and third pillar 8 , the matter is more delicate: there is no explicit provision in the Treaties regarding supremacy of EU law. The same applies to Community law as well, but the ECJ filled the gap in 1964 by Costa v. Enel case where it ruled that Community law takes precedence over conflicting national provisions, and as such should be considered supreme. On the other hand, unlike the case with Community law, in the context of third pillar acts, the ECJ has limited and conditional jurisdiction which is specified by article 35 of the EU Treaty 9 . Moreover, third pillar framework decisions lack direct effect, are not sufficiently detailed and to this regard are similar with first pillar directives. Do all these arguments constitute sufficient ground to conclude that the supremacy principle cannot be extended to third pillar acts, and more specifically to framework decisions? Apart from the specific nature of third pillar acts (which are very complex acts bearing inter-governmental components as well as supranational elements 10 ) the main obstacles for the extension of supremacy to third pillar acts seem to derive from the conditional jurisdiction of the ECJ and the lack of direct effect of those acts. A set of questions would be of relevance in this context: Could the ECJ through its judgments induce an absolute principle of supremacy of these acts, given the fact that not all Member States might have accepted its jurisdiction on Title VI acts? Moreover, could in principle be argued of giving supremacy to EU law as such when European Union legal instruments are declared not to have direct effect, thus not to be directly invoked? From a practical point of view, could national courts give precedence to third pillar acts with no direct effect in case they would conflict with national law? Does the absence in the European Union Treaty of a similar Article 10 TEC- duty of loyal cooperationrepresent another argument in favor of the non-application of the principle in third pillar

According to article 34(2) of the Treaty on European Union (EU Treaty), the Council is entitled to adopt common positions, framework decisions, decisions and may establish conventions which shall be recommended to Member States for adoption. Framework decisions, as it is the case of the EAW, are enacted for the purpose of approximation of the laws and regulations of the Member States. They are binding only as to the result to be achieved but the choice of means and form for their implementation is left to Member States. Moreover, according to Article 34(2) (b) of EU Treaty, framework decisions do not have direct effect. 9 According to Article 35 of the EU Treaty, Courts jurisdiction concerning framework decisions is limited to preliminary rulings on their validity and interpretation. Moreover, its jurisdiction is conditional upon a Member States acceptance. According to Article 35(2) of EU Treaty, Member States may specify in a declaration which national courts may refer a case in the form of a preliminary question to ECJ. 10 For more comments on this issue see Eleanor Spaventa, Opening Pandoras Box: Some reflections on the Constitutional Effects of the Decision in Pupino, in European Constitutional Law Review, 3, 5-24, 2007, pg.8

issues? Can the unified application of EU law be an argument in favor of extending supremacy to these acts? 11 As for the lack of direct effect of third pillar acts, the argument goes as following: there is no immediate nexus between direct effect and supremacy, in other words one category does not imply or exclude the other one. It is well-known that provisions of a regulation will often but not always have direct effect, depending on their formulation, and that provisions of a directive are supposed not to have direct effect, though there are many occasions on which they do have such effect.12 Notwithstanding the doctrine of ECJ that Community Law is the law of the land, [] however it appeared that, on the one hand, not all Community law that is part of the national legal system, is directly effective, since for having direct effect, certain additional conditions have to be satisfied. On the other hand, non- directly effective provisions cannot be ignored and treated as being non existent 13 . The same argument is given by Monica Claes when she states that [] The absence of direct effect does not imply the absence of supremacy. There is no reason why that should automatically follow: Indeed, for community law also, there is no conclusive link between direct effect and supremacy: also provisions lacking direct effect are supreme over conflicting national law. 14 Lenaerts and Corthauts position themselves firmly for the application of primacy in the second and the third pillar. They base their position on two main arguments: First, there is an argument based on the analogy between the Community and the Union legal order. They claim that there are certain similarities in regarding establishment, institutional framework and functioning of the EU. According to the authors
The EU is similarly established for an indefinite period, and provided with its own organs (actually the same organs as the EC), and, in a functional sense, legal personality. Furthermore, the Union has practical competences, transferred to it by the Member States, allowing the Union to do such diverse things as adopting a common definition of terrorism, imposing sanctions against third states, helping out victims of crime, and sending troops and policemen on peacekeeping mission across the Globe after concluding international treaties solely in the name of the Union. As a corollary, it can be thus argued that in those areas the sovereignty of the Member States has been limited. From there it does not take much imagination to submit that the Member States have thus created a legal order which is binding upon them 15 , even if no enforcement mechanism similar to Arts 226 and 228 TEC is available. 16
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For more on this argument see Krystyna Kowalik-Banczyk, Should we polish it up? The Polish Constitutional Tribunal and the Idea of Supremacy of EU Law, German Law Journal, Vol. 6, No.10, pg. 1357. 12 For more on this argument see Bruno De Witte, The Nature of the Legal Order, in Paul Craig and Grainne De Burca (eds), The Evolution of EU Law, 1999, pg. 185. 13 See Sacha Prechal, Does Direct Effect Still Matter?, Common Market Law Review, 37, 2000, pg. 1047. 14 See Monica Claes, The National Courts Mandate in the European Constitution, Hart Publishing 2006, pg. 589. 15 Emphasis added. 16 See Koen Lenaerts and Tim Corthaut in Of Birds and Hedges: the Role of Primacy in Invoking Norms of EU Law, European Law Review 31(3), 2006.

After describing the prima facie similarities between EC and EU legal orders, the authors deal with the argument of direct effect and primacy/ supremacy. They state that precedence of certain provisions of EU law over a national legal order does not necessarily demand direct effect (meaning provisions which confer rights on individuals, and which are sufficiently clear, precise and unconditional) of those provisions. Alternatively, the criteria which matters in primacy/supremacy issues is inconsistency with the European legal order, be it Community or Union legal order. They argue that [] to the extent that a national measure is inconsistent with EC law, it cannot be allowed to apply over EC law. But if we take consistency seriously, there is no need for identifying whether a provision confers rights on individuals. The only thing that matters is that EC law, and by extension EU law [emphasis added], puts forward an identifiable result which cannot be thwarted by incompatible national measures. 17 On my opinion, the above mentioned arguments tend to find quite plausible responses to the arguments which go against supremacy of European Union law. It should be agreed in principle that supremacy should apply to all acts of the European legal order, including here Union law. Direct effect is not a universal character of Community law, but still supremacy has been accepted in principle. And then after all, consistency and coherence of the Unions legal order would be jeopardized by fragmental application of supremacy principle. The uniformity and efficacy of EC law seem to be logically important also to third pillar acts: policies of the union are likely to lose their efficacy in case their application is stopped by individual member states and if national courts do not have the capacity to set aside or use other remedies on conflicting national provisions and give precedence to EU law. But the problem is how to enable a national court to set aside a directly applicable national provision because it conflicts with a third pillar act, which can not be directly invoked in a national court due to its vagueness and general regulation? The ECJ considered the case of conflict between a national law and framework decisions in Pupino case 18 where it ruled that The binding character of framework decisions, formulated in terms identical to those of third paragraph of Article 249 EC, places on national authorities, and particularly national courts, an obligation to interpret national law in conformity. 19 The Court, ruling on a preliminary reference by an Italian court, took the opportunity to extend the obligation of national courts to interpret national law in conformity with European law, even in the case of framework decisions adopted under third pillar. The Court went on with an efficacy argument by asserting that It would be difficult for the union to carry out its task effectively if the principle of loyal cooperation, requiring in particular that Member States take all appropriate measures, whether general or particular, to ensure fulfillment of their obligations under European Union law, were not also
17 18

Ibid, pg.3 Case C-105/03, Criminal Proceedings against Maria Pupino, judgment of 16 June 2005. 19 Paragraphs 33 and 34 of the Pupino judgment, emphasis added.

binding in the area of police and judicial cooperation in criminal matters, which is moreover entirely based on cooperation between the Member States and the institutions [...] The Court concluded that [..]When applying national law, the national court that is called upon to interpret it must do so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with Article 34(2)(b) EU. 20 It is clear that the remedy in the practical case of a conflict between a national provision and framework decision is not that of setting aside the national provision. However, this does not blow into nothing the above discussion about supremacy of EU law, and especially third pillar acts. The principle is the same: national authorities should acknowledge that Union law is the supreme law of the land, and consequently the result is the same: at the end of the day national court has to adapt and shape through interpretation national law according to the Union provisions, not withstanding their lack of direct effect. The remedy- consistent interpretation of national law according to Union law- is what makes the difference between an ordinary case of directly applicable provision of Community law and a non directly effective provision of European Union law. The abovementioned extract of the ruling puts national courts, at least from the point of view of ECJ, under the obligation to construe their national law in accordance with secondary European law. For sure this does not extend formally supremacy to third pillar acts, but it might be considered as a disguised form of primacy of secondary European legislation over conflicting national provisions in the sense that third pillar acts are the standard and national law should be adapted to it by being interpreted in conformity with the European obligation stemming from them. What differentiates it from primacy is the mechanism it offers to national courts: they have the obligation to interpret national law in conformity, but no mandate is given to them to set aside national law if it conflicts with EU norms. Therefore, for the moment there is no formula for the cases when there is a conflict between third pillar acts and national law and the latter cannot be interpreted in conformity with EU law. The above discussion demonstrates the present state of affairs regarding supremacy and how the principle of conform interpretation has been extended recently by ECJ to third pillar acts and more specifically to framework decisions. However, as the Czech Constitutional Court has pointed out in its ruling on EAW, the problem of supremacy of third pillar acts is not tackled by the ECJ, as [...] The ECJ left open the issue of what obligation national courts have in a situation where they cannot interpret their national law in conformity with the Framework Decision. In other words, the ECJ did not touch upon the problem of primacy, that is, whether, as is the case in Community law, framework decisions take precedence over national law and whether, in
20

Paragraphs 42 and 43 of the Pupino judgment, emphasis added.

consequence thereof, national courts are obliged to set aside national law that conflict with a framework decision. 21 From the perspective of someone who considers uniform application and efficiency of EU legal order as milestones of integration, the situation is quite complicated: on one hand, challenges to third pillar acts are likely to be numerous given the fact that third pillar acts are enacted within the framework of judicial cooperation in criminal matters and therefore it is quite possible to touch on constitutional guarantees and fundamental rights. On the other hand, national courts cannot be obliged to set aside conflicting national law, as we cannot speak about supremacy of EU law. As already demonstrated above, national courts are expected to do their best by interpreting national law in conformity with EU law. In case this is not possible, they cannot be asked to set aside conflicting national provision.

2.2

The principle of primacy under the Treaty establishing a Constitution for Europe Until now, it was shown that consistent interpretation has been extended by the ECJ to third pillar acts by causing a de facto extension of supremacy to these legal instruments. Nevertheless, there is no decision of the ECJ ruling explicitly for the extension of the principle to non-Community law, as there is no explicit prohibition of doing so. The present state of affairs might evolve again in two hypothetical cases: i. The ECJ might introduce through its case law the application of supremacy even to third pillar acts, and/or ii. The Constitutional Treaty shall be ratified by Member States according to respective procedural requirements and with its entrance into force it shall give legal binding effects to the primacy clause. The Treaty Establishing a Constitution for Europe, in its Article I-6 provides that The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy [emphasis added] over the law of the Member States. At a first look, one can distinguish several novelties brought by the inclusion of this article. First of all, the Treaty drops the term supremacy widely used in the doctrine but not in the case law of the ECJ 22 , and opts for the term primacy. True, the ECJ generally uses the formula Community law takes precedence/ prevails over national law instead of Community law has supremacy over national law. From a simple point of view, the formalization of this term might imply nothing more than a choice of a British term versus an American one, or merely an effort of isolating the treaty from any association with any federal features, such as supremacy of federal law over state law. The Spanish constitutional Court explicitly pointed out the difference
Judgment of Czech Constitutional Court on EAW, Pl US 60/04, dated 3 May 2006. One author reports for the use of the term supremacy in the jurisprudence of ECJ in the case 14/68, Walt Wilhelm, 1969 ECR 1, and in the Case 93/71, Leonesio, 1972 ECR 287. See Franz C. Meyer, Supremacy Lost?, Walter Hallstein Institut Paper2/06, January 2006.
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in its decision on the Constitutional Treaty in order to put an emphasis on two different categories: (a) supremacy is a characteristic of the Spanish Constitution as the supreme law of the land and, (b) primacy is a feature of European law, which implies its precedence over national law. The Court used this conceptual difference to finally claim that primacy of Union law has been accepted by the Constitution. On my opinion, the terminological debate should not be overestimated or exaggerated as long as one has a correct understanding of supremacy/primacy principle that is that of supremacy/primacy in application and not in validity. Supremacy, as the ECJ has ruled in several decisions, should be perceived as rule of conflict by indicating that in case of conflict between EU and national law, the former shall be applied. This does neither imply any hierarchy nor put in question the validity of national law. Second, article I-6 might provoke a debate on the scope of application of the principle of primacy. What category of EU law shall take precedence over what category of national law? Does the Constitutional Treaty introduce an unqualified and general principle of primacy? Does the term over the law of Member States include even constitutions of Member States? A literal interpretation of the article would definitely lead to this result, at least from a neutral point of view and far from passions of defenders of absolute supremacy of national constitutions. At this point, article I-6 restates what the ECJ ruled in Internationale Handelsgesellschaft 23 . Also the Declaration on Article I-6 reflects the maintenance of the status-quo by stating that The Conference notes that Article I-6 reflects existing case-law of the Court of Justice of the European Communities and of the Court of First Instance. Until now, the principle seems to be quite unqualified, by having absolute effect even on national constitutions. The picture starts to be more complicated when one considers article I-6 in relation with article I-5 of the Constitutional Treaty, which provides for several guarantees in the relation between the Union and Member States 24 . This article gives due emphasis to respect for national identities of member states, which are inherent in their fundamental structures, political and constitutional, inclusive of regional and local- self government. To be sure, national constitutions with provisions on fundamental principles are important part of the identity of a nation.
[]The law stemming from the Treaty, an independent source of law, could not because of its very nature be overridden by rules of national law, however framed, without being deprived of its character as Community law and without the legal basis of the Community law itself being called into question. Therefore, the validity of a Community measure, or its effect in a Member State, could not be affected by allegations, that it ran counter to fundamental rights enshrined in a national constitution.[emphasis added] 24 Article I-5 of the Constitutional Treaty on Relations between the Union and the Member States provides that 1. The union shall respect the equality of Member States before the constitution as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. 2. Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Constitution. The Member States shall take any appropriate measure, general or particular, to ensure fulfillment of the obligations arising out of the Constitution or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives.
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Therefore, this article imposes certain limitations on the absolute precedence of Unions law, by rendering it a qualified principle. Article I-5 contains another guarantee, that of sincere cooperation, according to which the Union and Member States should work together in order to carry out the tasks deriving from the Constitution. Moreover, this article puts limits to the Member States by emphasizing their legal obligations deriving from the Treaty. Thus, article I-5 is built upon reciprocal guarantees which try, in the same time, to ensure the preservation of national identities thus diversity- of Member States, as well the efficient functioning of the Union. How these balances are going to be handled is for sure a matter of further interpretation by the ECJ and national constitutional courts. The issue of scope of application of supremacy becomes more interesting when one investigates the wording of the primacy clause according to which all legal acts of the Union, starting from the Constitutional Treaty shall have primacy over the law of Member States. Does this imply that even non- Community law shall take precedence over national law? 25 It is true that in the context of the Constitutional Treaty, it does not make sense to discuss about second and/or third pillar acts, given the fact that the structure of pillars will merge. But the contradictions arise when one considers the content of the Declaration on article I-6 which claims that the article reflects nothing more than the existing case law of ECJ and the Court of First Instance. Here, there is room to get confused: it seems that the primacy clause enhances the scope of supremacy of EU law in general, by including non-Community instruments. How could it be seen then as merely a provision which restates the status- quo of the case law of the ECJ? Was the Declaration just a relief at political level for those skeptical governments of Europe (especially the UK, which proposed the Declaration), or article I-6 will have a narrower application than what it literally states? The extension of consistent interpretation to third pillar acts through the Pupino judgment-especially framework decisions- is somehow giving a positive signal for the supremacy of non- Community legal instruments. Another important issue to be investigated here is whether the codification of the principle in the Treaty will make a difference. In other words, does the primacy clause have declaratory or constitutive character? Does it make a difference? The answer to this question is quite relative and it depends on the perspective from which it is seen. From the perspective of ECJ, things have been very clear even before this codification. Thus, article I-6 has just a declaratory character. According to one author
Looking at it from the perspective of the Court of Justice, the inclusion of primacy in the TCE does not make much of a difference [...]. From the very beginning, the Court of Justice has stated that the principle of supremacy is inherent in the very nature of Community law: while the Treaty does not mention supremacy, it is implied, underlying several provisions expressly stated in the Treaty. Inclusion in the text of the Constitution Treaty only confirms what the Court has said in 1964; it is only declaratory 26 .
On the same issue see Monica Claes, The National Courts Mandate in the European Constitution, Hart Publishing 2006, pg.676. 26 Ibid, pg. 673.
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According to Kumm and Comella, the inclusion of the primacy clause in the Treaty makes the difference in so far as it gives more legitimacy to the principle. According to the same authors Substantive decisions explicitly made by the electorally accountable constitutional legislators have, all the other things being equal, greater legitimacy and authority then interpretative decisions made by courts 27 . It is true that a Constitutional document approved by respective representative bodies or popular referendums, with its ultimate constitutive force gives more legitimacy to the fundamental principles contained therein. However, from a point of view similar to that of the ECJ, one cannot reduce the legitimacy of primacy just because it is a product of the interpretative jurisprudence of the Court. Should one acknowledge that supremacy is inherent in the nature of community law and derives as an implication by the Founding Treaties, then it is quite logical to claim that it carries the legitimacy of the Treaties and given by the Treaties. Furthermore, the substance of written law can never be considered as exhaustive or all conclusive. There are always gaps to be filled through jurisprudential interpretation and new important principles might be formulated. This way of formulating them does not reduce their legitimating force. On my opinion, the codification of article I-6, in relation with article I-5, will contribute in qualifying better the scope of application of the principle (what category of EU law will have precedence over national law) and the relation between the European and national legal orders. Nevertheless, this kind of codification will not be exhaustive: the article leaves space for interpretation by the ECJ and national courts and therefore it does not settle the conflict of legal orders in an absolute way. 3. Recent challenges to the Constitutional Treaty and the supremacy issue. It seems obvious from the above cited articles that the Constitutional Treaty provides for a counter balanced principle of primacy. It probably extends its scope, but in the same time provides for guarantees of respect of national identity of Member States. Furthermore, article II-113 on the level of protection for human rights as provided by the Charter of Fundamental Rights of the Union, provides that Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, [...] and by the Member States constitutions. According to Monica Claes
These provisions may be interpreted as acknowledging the controlimiti jurisprudence of the national courts from the European perspective. This would imply that, while the Declaration notes that Article I-6 reflects the existing caselaw of the ECJ and CFI, a contextual reading of Article I-6 in the light of the

27

See Matthias Kumm and Victor Ferreres Comella, The primacy clause of the constitutional treaty and the future of constitutional conflict in the European Union, International Journal of Constitutional Law, no. 2, 2005.

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other provisions of the Treaty does not change the European version of primacy and retreats from the absolute version of primacy, rather than strengthening it. 28

As has been already analyzed in the previous chapter, the principle of primacy as envisaged by the Constitutional Treaty has been designed as a qualified one, with limits stemming from national identities of Member States, by implying here their constitutional traditions. This system of counterbalances between absolute European claims of supremacy and national concerns for the preservation of national constitutional identities shall contribute in preventing hostility in constitutional dialogues between ECJ and national constitutional courts. As Ricardo Alonso Garcia points out [...] the Constitutional Treaty seems to discard, by way of all these provisions, the possibility of a clash with the hard constitutional core of the Member States by accepting, on the one hand, that the Union is based on the same values as its Member States; and on the other hand, that the Union shall in all cases respect the fundamental political and constitutional structures of the said States [...] 29 . This seems to be true especially in two decisions of the French Constitutional Council and the Spanish Constitutional Court concerning primacy. It can be noted that despite certain tones claiming superiority of national constitutions, these two judgments have reduced the chances, at least in theory, of conflict between community and national constitutional law 30 . Both rulings were issued in the framework of an a priori review of constitutionality of the Constitutional Treaty with respective national constitutions and it was ruled that primacy clause does not entail any revision of respective constitutions.

See Monica Claes, The European Constitution and the Role of National Constitutional Courts, in Anneli Albi and Jacques Ziller, The European Constitution and National Constitutions: Ratification and Beyond, Kluwer Law International, 2007, pg. 242. 29 See Ricardo Alonso Garcia The Spanish Constitution and the European Constitution: the Script for a Virtual Collision and Other Observations on the Principle of Primacy, German Law Journal, Vol. 06, no.06, 2005, pg. 1010. 30 For a comment on the French case see Guy Carcassonne, Conseil Constitutionnel on the European Constitutional Treaty. Decision of 19 November 2004, 2004-505 DC, European Constitutional Law, no. 1, 2005; Loic Azoulai and Felix Ronkes Agerbeek Conseil Constitutionnel (French Constitutional Court), Decision no No. 2004505 DC of 19 November 2004, on the Treaty establishing a Constitution for Europe, Common Market Law Review 42, 2005; Jacques Ziller French Reactions to the Treaty Establishing a Constitution for Europe: from Cosntitutional Welcome to Popular Rejection in Anneli Albi and Jacques Ziller, The European Constitution and National Constitutions: Ratification and Beyond, Kluwer Law International, 2007, pg. 103. For comments on the Spanish case see Ricardo Alonso Garcia The Spanish Constitution and the European Constitution: the Script for a Virtual Collision and Other Observations on the Principle of Primacy, German Law Journal, Vol. 06, no.06, 2005; Fernando Castillo de la Torre, Tribunal Constitucional (Spanish Constitutional Court), Opinion 1/2004 of 13 December 2004, on the Treaty establishing a Constitution for Europe, Common Market Law Review no.42, 2005; Carmen Plaza The Constitution for Europe and the Spanish Constitutional Court, European Public Law, Vol. 12, Issue 3,2006; Camilo B.Schutte Tribunal Constitucional on the European Constitution. Declaration of 13 December 2004, European Constitutional Law Review 1, 2005; Pablo Perez Tremps and Alejandro Saiz Arnaiz Spains Ratification of the Treaty Establishing a Constitution for Europe: Prior Constitutional Review, Referendum and Parliamentary Approval in Anneli Albi and Jacques Ziller, The European Constitution and National Constitutions: Ratification and Beyond, Kluwer Law International, 2007

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For the French Constitutional Council, which had previously ruled in a decision 31 on the relation between French and community legal order, the Constitutional Treaty does not bring any change which should be followed by a constitutional amendment. According to the same constitutional body [...] the provisions of this Treaty, particularly the close proximity of Articles I-5 and I-6 thereof, show that it in no way modifies the nature of the European Union, nor the scope of the principle of primacy of Union law as duly acknowledged by Article 88-1 of the Constitution, and confirmed by the Constitutional Council in its decisions referred to hereinabove[...] 32 On the other hand, the outcome of the decision was similar for the Spanish constitutional Court which concluded that the primacy clause does not collide with the Spanish Constitution. The explicit message which was conveyed by the French Constitutional Council was related to the fact that the Constitutional Treaty did not bring anything new with regard to the nature of the European Union or the scope of the principle of primacy of the Union. Thus, the Council, first by considering the constitutional document as an international treaty and then by ignoring any kind of possible alteration to the nature of the Union or its principles, reaffirms the status quo from the point of view of national courts, in which primacy is generally based and stems from national constitutions and national constitutional bodies retain the last word in conflictual cases. To this regard, it is very important to point out that the Council made reference to its previous decision on the relation between the French and the Community legal order. In its decision on data protection in the electronic economy, the French Constitutional Council ruled in very abstract terms that the transposition of a community directive into national law [...] is mandated by a constitutional requirement which cannot be hindered on any grounds other than an express contrary provision of the Constitution[emphasis added]. This formulation leaves wide room for interpretation especially concerning the term disposition expresse contraire - contrary specific provision. The abstract wording puts certain limits or restrictions to the full and unconditional transposition and consequently implementation of community law into national legal order. Moreover, it accredits the Council with the final word in a situation of conflict by attributing to the latter the prerogative of assessing whether the transposition can be hindered by an express contrary constitutional provision. Two important arguments can be noticed in the ruling of the Spanish Constitutional Court. First, according to the Court primacy stems from the Spanish Constitution since the Spanish Constitution has accepted, by virtue of article 93 the primacy of Union legislation. This finding is quite vulnerable from a European point of view, as it seems to deny the autonomous and specific nature of the Community legal order. The European Court of Justice in the Van Gend en Loos and then in Costa case elaborated one of the most important characteristics of European law: sovereignty. One of the implications of

See Decision No. 2004- 496 of 10 June 2004, Law on data protection in the electronic economy, available in English at www.conseil-constitutionnel.fr 32 See Decision No. 2004505 DC of 19 November 2004, The Treaty establishing a Constitution for Europe, available at English in www.conseil-constitutionnel.fr

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sovereignty is primacy of EU law 33 . Therefore, according to this point of view, primacy of EU law does not depend from national constitutions but it is inherent in the nature of the Community. Second, the Court affirmed in a more explicit case than in the French decision, that in case of irreconcilable conflict between European law and the Spanish Constitution, it would be the Court which would approach the problem. The legitimate basis for this would be found in the conservation of the sovereignty of the Spanish people and the supremacy of the Spanish constitution. Is this a direct threat to the Foto- Frost doctrine? To be sure, this declaration comes as a final reservation on case of a constitutional conflict and brings again fears of a hypothetical clash in competences and jurisdiction between the ECJ and national constitutional courts. One of the most important observations to be made is that first the primacy clause with its guarantees and counterbalances, and then the case law of French and Spanish constitutional bodies, show a general tendency toward legal pluralism by abandoning discourses of unconditional supremacies of national or European legal orders. According to MacCormick [...] the most appropriate analysis of the relations of legal systems is pluralistic rather than monistic, and interactive rather than hierarchical. It is for the European Court of Justice to interpret in the last resort and in a finally authoritative way the norms of Community law. But, equally, it must be for the highest constitutional tribunal of each Member State to interpret its constitutional and other norms [...] 34 . To be sure, this approach contains the risk of pluralistic solutions to the same conflict due to different appreciations made by highest tribunals of two different legal orders. The same author proposes to reduce the risk by suggesting that [...] the European Court of Justice ought not to reach its interpretative judgments without regard to their potential impact on national constitutions. National courts ought not to interpret laws or constitutions without regard to the resolution of their compatriots to take full part in European Union and European Community. It is quite probable that the primacy clause of the Constitutional Treaty together with recent jurisprudence of some constitutional courts in Europe shall enhance the cooperation between ECJ and national constitutional courts in a context of legal pluralism.

33

For more on this see Damian Chalmers et al., European Union Law, Cambridge, Cambridge University Press, 2006, pg.185. 34 See N. MacCormick The Maastricht Urteil: Sovereignty Now, European Law Journal 1, 1995.

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