Constitutional jurisprudence in the member states on the participation in the process of European integration [1]   

22.09.17

Jurisprudence on European integration (2)

Updated 2009; partly updated and enlarged 2015. With contributions from Thomas Schmitz, Giulia Rossolillo, Giorgos Christonakis, Julia Laffranque, Piotr Czarny, Harald Christian Scheu and Ola Zetterquist.

[ Contents ] Bibilography ] Diagram 1 ] [ Diagram 2 ] [ Download ] [ Riga Symposiums ] [ Course ]

Preliminary remark

This overview presents the jurisprudence of constitutional courts and other courts with constitutional jurisdiction. The selection concentrates on the better known decisions (in particular of the Italian Corte costituzionale, the German Bundesverfassungsgericht and the French Conseil constitutionnel) and on the highly topical Lisbon judgements (of the Conseil constitutionnel, the Czech Ústavní soud, the Latvian Satversmes tiesa, the Bundesverfassungsgericht, the Hungarian Alkotmánybíróság and the Polish Trybunał Konstytucyjny). However, presentations of less known judgements, in particular from the new member states, are also incorporated.

Note that the constitutional courts of the member states do not have any jurisdiction on questions of European Union law. According to art. 19(1) EU Treaty (formerly: 220 EC Treaty), this jurisdiction is reserved to the European Court of Justice. The jurisdiction of the constitutional courts is limited to questions of constitutional law concerning the participation of their state in the process of European integration[2]. For example, regarding the question of Union law, a finding of a national constitutional court that in a given case the European Union has acted ultra vires, would be nothing else than a simple expression of opinion.

 

Corte costituzionale (Italy) [3] 

Germany, France, Greece, Austria, Denmark, Estonia, Poland, Lithuania, Czech Republic, Latvia, Hungary, appendix

name

year

substance

reference

Costa/Enel
(Sent. 14/64)

1964

● Possibility to sign treaties which involve limitation of sovereignty and to make them executory by an ordinary statute

● A later internal law takes precedence over the Treaty and over any rules issued under the Treaty prior to the national law

CMLRev 1964, 224

Frontini Franco
(Sent. 183/73)

1973

● EEC as a new inter-state organization, of a supranational type, permanent, caracterized by its own autonomous and independent legal order

● Community law and internal law are autonomous and distinct legal systems, albeit coordinated: the Corte costituzionale has no power to review the compatibility of individual Community regulations with the Italian Constitution

● If Community acts violated fundamental principles of the constitutional order or inalienable rights of the human being, the law authorizing the Treaty of Rome would be declared inconstitutional

-  however, a conflict of this kind is unlikely

EuR 1974, 255

Oppenheimer I, 629[4]

ICIC
(Sent. 232/75)

1975

● Primacy [supremacy] of EC law over inconsistent internal legislation, but ordinary judges don’t have the power to declare internal provisions inapplicable and are bound to refer the matter to the Corte costituzionale, which is responsible for declaring the offending provisions unconstitutional for violation of art. 11 of the Constitution

 

Granital
(Sent. 170/84)

1984

● Community law must prevail over both prior and subsequent conflicting national laws, without the need for resort to the constitutional review: the effect of a Community regulation is therefore to prevent an incompatible provision of domestic law from being taken into consideration for the solution of the dispute

● The Corte costituzionale reserves to itself the power:

1. to pass on the conformity of Community rules with the fundamental principles of the constitutional order and the inalienable rights of the human being (see Frontini)

2. to pass on the constitutionality of laws intended to impede or prejudice the observance of the Treaty when the system itself or its basic principles are involved

CMLRev 1984, 760

Oppenheimer I, 643

Beca
(Sent. 113/85)

1985

● Primacy of rulings contained in judgements of interpretation given by the Court of Justice

 

Fragd
(Sent. 232/89)

1989

● The Corte costituzionale has the power to test the consistency of individual provisions of Community law with fundamental human rights

● The power of the Court of Justice to limit, under article 177 EEC Treaty (later 234 EC Treaty, now 267 FEU Treaty), the effects of a declaration of invalidity of a regulation, thereby rendering that declaration without effect in the proceedings before the national court making the reference, could violate art. 24 of the Italian Constitution

Oppenheimer I, 653

Provincia di Bolzano
(Sent. 389/89)

1989

● Primacy of rulings contained in judgements relating to infringment proceedings

 

Regione Umbria
(Sent. 384/94)

1994

● The Corte costituzionale can prevent ab initio any risk of non-compliance with Community obligations by the State, declaring inconstitutional a draft regional law

Oppenheimer II, 366

Assemblea regionale siciliana(Sent. 94/95)

1995

● The Corte costituzionale can rule on questions of consistency between national and EC law raised via a principaliter proceeding

 

Referendum cases
(Sent. 31/2000, 41/2000, 353/2000)

2000

● Inadmissibility of a referendum which would abrogate a domestic law provision implementing a Community rule or being already compliant with a directive for which the time for the implementation has not yet expired (violation of the standstill obligation)

 

Bundesverfassungsgericht  (Germany)    (updated 2015)

Italy, France, Greece, Austria, Denmark, Estonia, Poland, Lithuania, Czech Republic, Latvia, Hungary, appendix

name

year

substance

reference

EEC regulations

1967

● no constitutional complaints against EEC regulations

- because they are no acts of German "public power"

- EEC regulations as acts of a "supranational" public power

the Community as a community sui generis in a process of progressing integration

● EC Treaty represents "in a sense the constitution of this Community"

BVerfGE 22, 293 [4a]
HV
[5], 44

Milk powder

1971

● Community law as an independent (distinct) legal order[6]

● obligation of German courts to apply Community law deriving from art. 24(1) [today: 23(1)] Basic Law [= BL]

- reasoning: teleological interpretation of art. 24(1): the originally exclusive holder of the sovereign rights must recognize the legal acts of the "zwischenstaatliche Einrichtung" (supranational institution); argument of effet utile: otherwise the subjective rights of the market citizens cannot be realized

● primacy of Community law - courts of the case have to decide about the inapplicability of colliding national legal norms

BVerfGE 31, 145
HV, 42

Solange I

 

1974

As long as Community law does not include a binding catalogue of fundamental rights decided on by a parliament, which is adequate in comparison with the catalogue contained in the German Basic Law, the Bundesverfassungsgericht will protect the fundamental rights in the Basic law by deciding on the applicability of secondary Community law in the procedure of constitutional review (upon submission by courts)

- in the case of a conflict, the Treaty binds the Community to seek a solution which is compatible with the entrenched imperative precepts ["zwingenden Geboten"] of the Basic Law

● art. 24(1) BL (now: 23(1) BL) does not empower to a real transfer of sovereign rights but to take back the exclusive claim to power of the state and to open the legal order for the direct validity and applicability of the supranational law

● art. 24(1) BL (now: 23(1) BL) does not allow encroachments on the identity of the constitution[7]

BVerfGE 37, 271
(277 ff.)
HV, 45

Eurocontrol

1981

● art. 19(4) BL (right to legal protection against acts of public authority) does not apply to acts of supranational institutions ["zwischenstaatliche Einrichtungen"][8]

-  measures taken by supranational institutions no acts of German "public power"

- teleological reasoning based on the objective of art. 24(1) BL: different legal protection in the member states would jeopardize the ability of the supranational institution to fulfil its tasks

● legal reservation in art. 24(1) BL to be interpreted strictly: no transfer of sovereign rights by statutory instruments (legal ordinances)

● transfers of sovereign rights as material (substantial) amendments of the constitution

-  reasoning: every transfer of sovereign rights changes the constitutional system of distribution of powers

BVerfGE 58, 1
HV, 49

Solange II 

 

1986

As long as the Communities, in particular the jurisprudence of the ECJ, generally ensure an effective protection of fundamental rights which is to be regarded as substantially equivalent to the level of protection required by the Basic Law as an inalienable minimum, the Bundesverfassungsgericht will no longer exercise its jurisdiction to decide on the applicability of secondary Community law, and submissions by the courts are not admissible[9]

● ECJ as lawful judge (in the sense of art. 101(1) phrase 2 BL)

● the direct validity of Community law within the state and the primacy of application of Community law follow from the order to apply supranational law [Rechtsanwendungsbefehl], which was given with the law that ratified the EEC Treaty

-  Art. 24(1) BL (now: 23(1) BL) enables to grant primacy of validity (!) or of application through the order to apply supranational law [Rechtsanwendungsbefehl]

BVerfGE 73, 339
(366 ff.)
HV, 52

Kloppenburg

1987

● the jurisprudence of the ECJ on the direct applicability of directives is an admissible judicial development (not a judicial making) of law

BVerfGE 75, 223
HV, 18

Tobacco Labelling Directive
(chamber decision)

1989

● no constitutional complaints against the cooperation of the Federal Government in the making of secondary Community law

-  because this is not an exercise of public power with respect to the citizen

- However, the legislator is bound when transposing directives, within the remaining latitudes. Constitutional complaints can be directed against the transposing statutes

EuR 1989, 270
NJW 1990, 974
HV, 61

Night work

1992

confirmation of the primacy (of applicability) of Community law

BVerfGE 85, 191
HV, 62

Maastricht judgement

1993

● the European Union is a "Staatenverbund" ["compound of states" / "association of states"], not a federal state

-  the member states as "masters of the treaties"; the Union does not have the competence of competences [Kompetenz-Kompetenz]

●  the principle of democracy is not an obstacle to the membership in a supranational community but requires its democratic legitimation

- democratic legitimation is provided primarily by the peoples of the member states through the national parliaments, and only in addition - but more and more - by the European Parliament

- the democratic bases have to be strengthened inline with the progress of integration

- no objections against the concentration of competences at the Council as an institution which is controlled by the executive, but there must remain tasks and powers of substantial weight for the German Bundestag:

●  art. 38 BL limits the transfer of competences to the Union and grants the citizen a subjective right to political participation and influence

- no general or indeterminate empowerment, no transfer of the competence of competences[10]

- the citizen can claim his right to political participation and influence by the way of constitutional complaint

● The Bundesverfassungsgericht will control if the legal acts of the Union comply with the limits of its competences.[11]

- the founding treaties differentiate between treaty interpretation and treaty extension

- following this statement some legal scientists tried to develop a legal concept of "breaking out" ultra virus acts ["ausbrechende Rechtsakte"]

● fundamental rights to be protected in a "relationship of cooperation" ["Kooperationsverhältnis"] between the Bundesverfassungsgericht and the ECJ[12]

- the protection of fundamental rights in Germany by the Bundesverfassungsgericht is not limited to violations by German institutions[13]

-  the ECJ provides for protection in the individual case, the Bundesverfassungsgericht confines itself to generally guarantee the imperative (absolute, indispensable) standards

- this passage caused a flood of literature on the possible organisation of the "relationship of cooperation"

BVerfGE 89, 155
NJW 1993, 3047
HV, 64
Weatherill
[14], 662

Television Directive

(® short review)

1995

● The exercise of Germany's rights as a member state by the Federal Government can be reviewed by the Bundesverfassungsgericht in Federation-Land-Disputes ["Bund-Länder-Streit"]

● In the Community institutions, the Federal Government must defend member states' competences, which within the Federal Republic of Germany are allocated to the Lander, against encroachments of the Community[15]

- this obligation derives from the principle of federal loaylty [Bundestreue]

- if the Lander and the Federal Government share the opinion that there is no Community competence for a certain act, the Federal Government must oppose this act categorically within the Council

BVerfGE 92, 203
HV, 94

Allocation of seats
in the European Parliament

(chamber decision)

(® shsort review)

1995

● the principle of equal elections does not exclude the current unequal allocation of seats in the European Parliament to the member states (based on ponderation) because it corresponds to the character of the EU as a "Staatenverbund"

NJW 1995, 2216
HV, 83

Monetary union

(® short review)

1998

●  Euro introduction does not violate the right of property

- the legislative act ratifying the Treaty of Maastricht represents a determination of the content and limits of the right of property in the sense of art. 14(1) phrase 2 BL

- economic evaluations and assessments as necessary for the application of the convergence criteria in art. 109 EC Treaty (now: art. 140 FEU Treaty) cannot be judged according to the individualising standards of fundamental rights

BVerfGE 97, 350
HV, 83

Banana market
organisation

(® short review)

2000

● protection of fundamental rights by the Bundesverfassungsgericht only according to the "Solange II" formula

-  disguised correction of the statements in the Maastricht judgment while pretending continuity; the notion of "relationship of cooperation" ["Kooperationsverhältnis"] is not applied any more!

● severe requirements for constitutional complaints and submissions by courts against the application of Community law

- The Bundesverfassungsgericht requires a thorough comparison of the national and European protection of human rights following the example of its Solange II decision. The appellant or submitting court has to demonstrate that the imperative standards are generally not guaranteed any more in the EU.

BVerfGE 102, 147
NJW 2000, 3124
HV, 93
Weatherill, 665

Europen arrest warrant[16]

2005

● The German legislator has to implement the Framework Decision on the European arrest warrant in such a way that the restriction of the freedom from extradition (art. 16(2) BL) is proportionate. The latitude left by the Framework Decision must be used in a manner that is considerate with the fundamental rights

- a specific balance of interests is necessary, if the (criminal) act has been committed in Germany but the result has occurred abroad

● The cooperation practiced in the "Third Pillar" in the shape of limited mutual recognition is a way of preserving national identity and statehood in a single European judicial area, which is considerate in terms of subsidiarity (Article 23(1) BL)

BVerfGE 113, 273

Lisbon judgement

(® review)

2009

a right of the citizen under art. 38(1) BL [right to vote], enfcorceable by constitutional complaint, that the Bundestag will retain substantial competences in the process of integration, that the Union will be sufficiently democratically legitimised, and that the German statehood and the fundamental constitutional principles will be preserved in the process of integration

● principle of the openness towards European law ["Grundsatz der Europarechtsfreundlichkeit"]

- substantiated in a more or less "open" way...

● pivotal importance of the principle of conferral (= principle of specific attribution of powers, art. 5(1, 2) EU Treaty) in the process of supranational integration

-  the consent of the Federal Government to autonomous amendments to the Treaties in the simplified treaty revision procedure or the bridging procedure (in particular under art. 48(6, 7) EU Treaty, 81(3) FEU Treaty) generally requires an approving legislative act pursuant to art. 23(1) phrase 2 BL

- the consent of the Federal Government to the use of the flexibility clause, as extended by the Treaty of Lisbon (art. 352 FEU Treaty), also requires an approving legislative act pursuant to art. 23(1) phrase 2 BL

Ultra vires review of the Union's legal acts by the Bundesverfassungsgericht

- in addition to the review aiming to preserve constitutional identity in the process of integration ("identity review")

- the Bundesverfassungsgericht will intervene in case of apparant transgressions of the boundaries ["ersichtliche Grenzüberschreitungen"] [16a] (objection: disregard of the exclusive jurisdiction of the ECJ, which includes the privilege of authoritative misconception [Privileg des autoritativen Irrtums] - no intervention below the threshold of arbitrariness!)[16b]

- only the Federal Constitutional Court is entitled to intervene (objection: encroachment on the domestic jurisdiction of the ordinary courts - a constitutional court is not the supreme guardian of the rule of law!)

● Limits to the transfer of competences deriving from the principle of democracy

- = limits to supranational integration (that can be overcome by the foundation of a European federal state only)

- member states must retain sufficient room for the political formation of the economic, cultural and social circumstances of life

- problematic areas: criminal law, deployment of the armed forces; fundamental decisions on public revenue, public expenditure and external financing, essential decisions on social policy, decisions of major cultural significance (as regards language, school and education system, family law, the dealing with religious communities etc.)[16c]

● democracy of the European Union not to be shaped in analogy to that of a state / Treaty of Lisbon does not create a European people (in the sense of a people of a state)

● the degressively proportional representation in the European Parliament is incompatible with the idea of democratic equality[17]

- the principle of electoral equality belongs to the legal principles common to all democratic European states; connection to human dignity

- due to the deficit, the European Parliament cannot reflect a European majority will that might, for instance, support a European government

- with relation to the prohibition of discrimination on grounds of nationality, which forms a central idea of European Union law, this represents a discrepancy in valuation

- it is, however, acceptable, since the Union is just a compound of states / association of states ["Staatenverbund"] and the European Parliament still represents the peoples of the member states; the "representative democracy" pursuant to art. 10(1) EU Treaty relates to the peoples of the member states (critical remark: the Court does not consider the existence of a European people that is not a people of a state but a people of the Union)

BVerfGE 123, 267
NJW 2009, 2267

Honeywell

2010

correction and concretisation of a passage in the Lisbon judgement: Ultra vires review by the Bundesverfassungsgericht can only be considered if a breach of competences on the part of the European bodies is "sufficiently qualified". This is contingent on the act of the authority of the European Union being "manifestly" in breach of competences and the impugned act leading to a "structurally significant shift to the detriment of the Member States"[17a] in the structure of competences

- the Bundesverfassungsgericht must exercise its control powers in a manner that is reserved and open towards European law

- note the shift from "apparantly" ["ersichtlich"] to "manifestly" ["offensichtlich"] in breach. However, the criterium "manifestly" is not substantiated; instead, the Court refers to heterogeneous formulations in doctrine (critisicm: This disguised correction is insufficient, since it does not ensure that the Bundesverfassungsgericht, respecting the exclusive jurisdiction and the privilege of misconception [Privileg des autoritativen Irrtums] of the ECJ, will not intervene, as long as the threshold of an arbitrary excess of powers is not passed!)

● Before assuming an ultra vires act, the Bundesverfassungsgericht must obtain a preliminary ruling of the ECJ on those questions, which have arisen and which the ECJ has not yet clarified

● limits of judicial further development of law

- no political latitudes

- a major limit: the principle of conferral (= principle of specific attribution of powers); however, there is no sufficiently qualified breach unless a judicial development of law, which is not justifiable in terms of legal method, has the effect of establishing competences in practice

- in the Mangold case (C-144/04) the judicial development of law was legitimate[17b]

● protection of legitimate expectations in constellations of retroactive inapplicability of national statutory provisions as a result of ECJ rulings

- Bundesverfassungsgericht suggests secondary protection of legitimate expectations by compensating for the damage caused by breach of trust

BVerfGE 126, 286
NJW 2010, 3422

euro rescue package

2011

● preservation of the budget autonomy of the Bundestag in the process of integration

the decision on revenue and expenditure of the public sector must remain permanently in the hand of the Bundestag as a fundamental part of the ability of a constitutional state to democratically shape itself

-  When establishing mechanisms of considerable financial importance which can lead to incalculable burdens, the Bundestag must ensure that later on, mandatory approval by the Bundestag is always obtained again. It is prohibited from establishing permanent mechanisms under the law of international treaties which result in an assumption of liability for other states' decisions.

-  Every larger scale aid to other member states provided by the Federation in a spirit of solidarity and involving public expenditure must be specifically approved by the Bundestag. Sufficient parliamentary influence must also be ensured with regard to the manner in which the funds that are made available are dealt with.

-  assumptions of guarantees must not entail that in the case of guarantee events budget autonomy is virtually rendered completely ineffective; margin of appreciation of the legislator with regard to the probability of having to make payments, the sustainability of the federal budget and the economic performance of Germany

● a right of the citizen under art. 38(1) BL (read together wit art. 20(1, 2), 79(3) BL), enfcorceable by constitutional complaint, that the budget autonomy of the Bundestag will be preserved

- continuation and defending of the often criticised doctrine established in the Maastricht and Lisbon judgements

BVerfGE 129, 124

Five percent barrier clause for European elections

2011

● The five per cent barrier clause[17c] in the law governing the elections of the German members of the European Parliament violates the principles of equal suffrage and of equal opportunities of the political parties

- The legislature’s assessment that otherwise the European Parliament’s ability to function would be impaired cannot rely on a sufficient factual basis and does not adequately take account of the European Parliament’s specific working conditions and its functions.

BVerfGE 129, 300

ESM/Euro Plus Pact

2011

● The duty according to art. 23(2) BL to keep the Bundestag informed , comprehensively and at the earliest possible time, in matters concerning the European Union, requires the Bundestag to be informed early and comprehensively enough to be able to concern itself thoroughly with the dossier and to develop an opinion before the Federal Government makes any binding statements

- This duty finds its limits in the principle of separation of powers, which safeguards a core area of the Executive's responsibility including a range of initiative, deliberation and activity

BVerfGE 131, 152

ESM and Fiscal Pact

(2014)

(2012)

 

2014

2012

[17d]

● preservation of the budget autonomy of the Bundestag even when participating in the ESM

- confirmation of BVerfGE 129, 124 (euro rescue package)

- Bundestag may not consent to an automatic guarantee or performance which is not subject to strict requirements and whose effects are not limited

- Bundestag must have access to the information which it needs to assess the relevant background and consequences of its decisions in the context of the ESM

- the legitimising relationship between ESM and Parliament must not be interrupted under any circumstances (legislature is obliged to make arrengements to ensure that Germany meet any capital calls so that it cannot happen that it will be unable to exercise its voting rights)

- no definition of any ultimate limit of payment obligations and liability commitments

BVerfGE 135, 317

BVerfGE 132, 195

OMT reference

2014

● Reference for a preliminary ruling of the ECJ on the compliance of the OMT Decision of the Governing Council of the ECB with Primary Union law (here: no lack of competence)

- first reference for a preliminary ruling of the ECJ by the Bundesverfassungsgericht

- thorough reasoning on the interpretation of Union law [17e]

● Citizen has the option to initiate an ultra vires review by the Bundesverfassungsgericht in the way of a constitutional complaint based on art. 38(1) BL

- see the criticism by Justice GERHARD: constitutional complaint degenerates to an actio popularis

Ultra vires review by the Bundesverfassungsgericht applying the criterias developed in the Honeywell decision

- OMT Decision [possibly] "manifestly" in breach of competences and leading to a "structurally significant shift" to the detriment of the member States

- if the case may be, the Bundestag and the Federal Government must - if it is not feasible or wanted to retroactively legitimise the assumption of powers by changing primary law - pursue the reversal of the decision and take adequate precautions to ensure that the domestic effects remain as limited as possible

BVerfGE 134, 366

Conseil constitutionnel (France) 

Italy, Germany, Greece, Austria, Denmark, Estonia, Poland, Lithuania, Czech Republic, Latvia, Hungary, appendix

name

year

substance

reference

Maastricht I
(92-308 DC)

 

1992

the principle of national sovereignty (preamble of the Constitution read together with art. 3 of the Declaration of the Rights of Man and the Citizen of 1789) does not preclude membership in supranational organisations; however, obligations jeopardising the "conditions essentielles d'exercice de la souveraineté nationale" require prior revision of the Constitution[18]

-  that was the case with the monetary union and the new Community visa policy with majority vote; see now art. 88-2 of the Constitution

right to vote and to stand as a candidate at local elections incompatible with art. 3(4) of the Constitution [19]

- because the local representatives form the electorate for the Senate, which participates at the exercise of national sovereignty (see art. 3(1)) but is not elected directly by the people; see now art. 88-3 of the Constitution (which precludes foreign Union citizens from the participation in the elections for the Senate)

● right to vote and to stand as a candidate at elections to the European Parliament not unconstitutional

-  art. 3(4) of the Constitution not relevant because the European Parliament is not part of the institutional system of the French Republic

● sufficient protection of fundamental rights guaranteed in the Union by art. F(2) EU Treaty (later: art. 6(2), now: 6(3) EU Treaty)

Recueil, p. 55

Maastricht II
(92-312 DC)

 

1992

Treaty of Maastricht compatible with the (amended) Constitution

no substantial limits to revisions of the Constitution apart from those set in art. 89 (republican form of government)

● no review of revisions of the Constitution in the procedure according to art. 54 of the Constitution

Recueil, p. 76

Maastricht III
(92-313 DC)

 

1992

● no constitutional review of statutes adopted by referendum

Recueil, p. 94

Treaty of
Amsterdam

(97-394 DC)

1997

● the transfer of competences for measures relating to visas, asylum and the free movement of persons jeopardises "conditions essentielles d'exercice de la souveraineté nationale"

- therefore, the ratification of the Treaty of Amsterdam required a prior revision of the Constitution

Recueil, p. 344

Economie numérique
(2004-496 DC)

2004

according to art. 88-1 of the Constitution, the transposition of EC directives is a constitutional demand; exceptions must be decreed explicitly in the Constitution ["disposition expresse contraire"]

● in the absence of such an explicit provision, any control with regard to the limits of competences and the protection of fundamental rights is reserved to the ECJ

Recueil, p. 101

Treaty establishing a Constitution for Europe
(2004-505 DC)

 

2004

● only some provisions transferring competences or modifying the means of exercising them (in particular abandoning unanimity voting) affect the "conditions essentielles d'exercise de la souverainté nationale"; besides, the exercise of the new rights of the national parliaments requires an amendment of the constitution

●  Constitutional Treaty retains the nature of an international treaty

●  Charter of Fundamental Rights not contrary to the French Constitution

Recueil, p. 173

Copyright in the information society
(2006-540 DC)

 

2006

the transposition of EC Directives is a constitutional requirement

-  confirmation in principle of the new line introduced by the decision "économie numérique" (2004-496 DC)

it cannot, however, run counter to a rule or principle inherent to the constitutional identity of France, except when the constituting power consents thereto

-  first relativization of the position in the decision "économie numérique"

in the procedure under art. 61 of the Constitution [preventive constitutional review], the Conseil constitutionnel must ensure the compliance with the requirement under art. 88-1; however, since it must give a ruling before the promulgation of the statute, in the time allotted by art. 61, it cannot request a preliminary ruling from the ECJ and therefore can only find a statutory provision unconstitutional if it is obviously incompatible with the Directive which it is intended to transpose[19a]

- second relativization of the position in the decision "économie numérique"

Recueil, p. 88

Treaty of Lisbon
(2007-560 DC)

 

2007

● no constitutional review of Treaty provisions which merely reiterate undertakings already entered into by France

● in art. 88-1 et seq. of the Constitution, the constituent power recognised the existence of a Community legal order integrated into domestic law and distinct from international law, while confirming the place of the Constitution at the summit of the domestic legal order

● some Treaty clauses (that transfer to the European Union powers concerning the fundamental conditions of the exercising of national sovereignty) and the provisions on the new powers vested in the national parliaments in the framework of the Union require a (preliminary) revision of the Constitution

Recueil, p. 459

Συμβούλιο της Επικρατείας (Council of State, Greece) [20] 

Italy, Germany, France, Austria, Denmark, Estonia, Poland, Lithuania, Czech Republic, Latvia, Hungary, appendix

name

year

substance

reference

prohibition for debtors to public institutions to leave the country (3502/1994, 4th Senate)

1994

● the prohibition for debtors to public institutions to leave the country is incompatible with Community law (freedom of movement for workers, freedom of establishment)

- onetime general recognition of the primacy of Community law

- has been revoked later by the same Senate

Dioikitiki Diki 1995, 448, Δiki 1995, 937

recognition of private institutions of higher education
(3457/1998, en banc)

1998

● the recognition of academic study programs, which are partly provided in branches of foreign institutions of higher education in Greece, is incompatible with the prohibition to establish private institutions of higher education under art. 16 of the Constitution

- according to a dissenting vote, the freedom of movement for workers and the freedom of establishment collide with the Greek Constitution

Νomiko Wima 1999, 1019, Τo Syntagma 1998, 961

main shareholder
(3242/2004, 4th Senate)

2004

● art. 14(9) of the Constitution (main shareholder of information media enterprise cannot undertake to carry out works or supplies or to provide services under public procurement) has primacy over the relevant provisions in Directive 93/37/EEC

- a primacy of Community law over the Constitution would amount to deny the power of the constituent to amend the Constitution; art. 28 of the Constitution does not have a higher legal force than other provisions of the Constitution (2 dissenting votes)[21]

 

legal protection against statutes
(391/2008, 5th Senate)

2008

● Reference to the ECJ for a preliminary ruling on the question whether the restriction of legal protection against statutes caused by the missing option of a non-case related constitutional review of statutes is compatible with Community law

● higher standards of the right to reffective legal protection in cases where Community law is relevant

 

Verfassungsgerichtshof (Austria)  

Italy, Germany, France, Greece, Denmark, Estonia, Poland, Lithuania, Czech Republic, Latvia, Hungary, appendix

name

year

substance

reference

Bundesvergabeamt
(B2300/95)

1995

● ECJ as lawful judge in the sense of art. 83(2) Federal Constitutional Law

Slg. 14390
HV, 273

Higher education entrance qualification
(B877/96)

1991

primacy of applicability of Community law[22]

- to be respected also by the Verfassungsgerichtshof

Slg. 14886

Hojesteret (Supreme Court, Denmark) 

Italy, Germany, France, Greece, Austria, Estonia, Poland, Lithuania, Czech Republic, Latvia, Hungary, appendix

name

year

substance

reference

Maastricht judgement
(I 361/1997)

1998

● ratification of the Treaty of Maastricht not unconstitutional

● acts of secondary law, which exceed the competences of the Union, will not be applied in Denmark

-  all Danish courts entitled to review and reject

EuGRZ 1999, 49

Riigikohus (State Court, Estonia) [23] 

Italy, Germany, France, Greece, Austria, Denmark, Poland, Lithuania, Czech Republic, Latvia, Hungary, appendix

name

year

substance

reference

Elections
coalitions II

(Riigikohus en banc)
(3-4-1-1-05)

 

 

 

 

 

 

 

 

 

 

 

 

dissenting opinion
Laffranque a.o.

2005

● Primacy [supremacy] of application of European Union Law

● no competence of the Chancellor of Justice to request that the Riigikohus declare an act unconstitutional for violation of EU law

- "49. ... Neither the Chancellor of Justice Act nor the Constitutional Review Court Procedure Act give the Chancellor of Justice the competence to request that the Supreme Court declare an Act unconstitutional on the ground that it is in conflict with the European Union law. There are different possibilities for bringing national law in conformity with the European Union law, and neither the Constitution nor the European Union law provide for the existence of constitutional review proceedings for this purpose. The European Union law has indeed supremacy over Estonian law, but taking into account the case-law of the European Court of Justice, this means the supremacy upon application. The supremacy of application means that the national act which is in conflict with the European Union law should be set aside in a concrete dispute ... Pursuant to Article 226 of the Treaty establishing the European Community, the Commission, if it considers that a Member State has failed to fulfil an obligation under this Treaty, including not bringing national law into conformity with the European Union law, may bring the matter before the Court of Justice. This does not mean that such abstract review procedure over national law should exist on the national level. ..."

- "50. The legislator is competent to decide whether it wants to regulate the procedure for declaring invalid Estonian legislation which is in conflict with the European Union law, just as the legislator is free to choose whether it will or will not give the Chancellor of Justice the right to review the conformity of national legislation with the European Union law."

● see also dissenting opinion of the JUDGE LAFFRANQUE: The Chancellor of Justice essentially contested the conformity of the Political Parties Act to the Constitution (the substance of which had been renewed by the Amendment Act), and the Riigikohus en banc should have answered this question in the framework of constitutional review, using the help of EU law for interpretation purposes and even asking the ECJ for a preliminary ruling, if necessary.

Riigi Teataja III 2005, 13, 128

Opinion on monetary union
(Constitutional Review Chamber)
(3-4-1-3-06)

  

 

 

 

 

 

 

 

 dissenting opinions
Kergandberg and Kőve

2006

● Primacy [supremacy] of European Union Law over the Estonian Constitution

- "14. ... Thus, the Constitution ... must be read together with the Constitution of the Republic of Estonia Amendment Act, applying only the part of the Constitution that is not amended by the CAA. ... 16. ... only that part of the Constitution is applicable, which is in conformity with the European Union law or which regulates the relationships that are not regulated by the European Union law. The effect of those provisions of the Constitution that are not compatible with the European Union law and thus inapplicable, is suspended. This means that within the spheres, which are within the exclusive competence of the European Union or where there is a shared competence with the European Union, the European Union law shall apply in the case of a conflict between Estonian legislation, including the Constitution, with the European Union law."

● (Union-friendly) interpretation of the Constitution Amendment Act

● Estonian Constitution allows to participate at the monetary union; competences of the Bank of Estonia will change

● see also the dissenting opinions of the JUSTICES KERGANDBERG and KŐVE who criticise that the Riigikohus did not specify the limits of the primacy of EU law over the Estonian Constitution and did not interpret the fundamental principles of the Constitution which are stated in the protective clause (§ 1) of the Constitution Amendment Act. JUSTICE KŐVE is of the opinion that the principle of primacy of EU law has been "overestimated".

Riigi Teataja III 2006, 19, 176

Trybunał Konstytucyjny (Poland) [24] 

Italy, Germany, France, Greece, Austria, Denmark, Estonia, Lithuania, Czech Republic, Latvia, Hungary, appendix

name

year

substance

reference

European arrest warrant [25]
(P 1/05)

 

2005

● extradition of Polish citizens on the basis of the European arrest warrant unconstitutional

- prohibition on extradition in art. 55(1) of the Constitution is absolute in nature

● for the implementation of the Framework Decision on the European arrest warrant the Constitution has to be amended

● the Trybunał Konstytucyjny also has to review the constitutionality of normative acts which implement European Union law

OTK ZU 2005, A, Nr. 4, Pos. 42

EU Accession Treaty
(K18/04)

 

2005

● Primacy of the Constitution over Community law in Poland[26]

● principle of interpreting the Constitution in a manner "sympathetic to European law"

● In case of a irreconcilable inconsistency between the Constitution and Community law, the autonomous decision (revision of the Constitution or secession) belongs to the Polish constitutional legislator

● EU not a supranational organisation but a special international organisation[27]

● legal acts exceeding the competences of the Union do not enjoy primacy over national law; final decision lies with the institutions of the member states

● right to vote and to stand as a candidate at local elections not unconstitutional

OTK ZU 2005, A, Nr. 7, Pos. 81

Lisbon judgement
(K32/09)

2010

● Primacy of the Constitution over Union law in Poland (confirmation)

● EU membership not a limitation but manifestation of the state's sovereignty; transfers of competences do not lead to permanent limitations of sovereign rights of the states

- member states maintain the competence of competences

- preservation of constitutional identity excludes the transfer of the competence to take certain fundamental desicions

● When transferring competences to the EU, the procedure under art. 90 of the Constitution is essential for the safeguard of sovereignty

- principle of protection of the state's sovereignty in the process of integration

- treaties ratified in accordance to art. 90 enjoy a presumption of constitutionality which may be ruled out only if there is no possible interpretation of the treaty or the Constitution allowing to state the conformity

● art. 48 EU Treaty and 352 FEU Treaty are consistent with the primacy of the Constitution (art. 8(1)) and the integration clause (art. 90(1) of the Constitution)

● extensive discussion of the relevant jurisprudence of the French, German, Czech, Latvian and Hungarian constitutional courts

OTK

Konstitucinis Teismas (Lithuania) [28] 

Italy, Germany, France, Greece, Austria, Denmark, Estonia, Poland, Czech Republic, Latvia, Hungary, appendix

name

year

substance

reference

ownership rights in areas of particular value and in forest land  (17/02, 24/02, 06/03, 22/04)

2006

● primacy of application of European Union law over national law, save the Constitution[29]

 

radio and television
funding and radio frequencies
(30/03)

2006

● The jurisprudence of the European Court of Justice, as a source of legal interpretation, is important for the interpretation and application of Lithuanian law.

● no primacy of European Union law over the Constitution

 

Sabatauskas
  (47/04)

2007

● reference to the ECJ for a preliminary ruling (case C-239/07, concerning Directive 2003/54)

 

Ústavní soud (Czech Republic) [30] 

Italy, Germany, France, Greece, Austria, Denmark, Estonia, Poland, Lithuania, Latvia, Hungary, appendix

name

year

substance

reference

sugar quotas
(Pl. ÚS 50/04)

 

2006

● As a result of the Czech Republic's accession to the European Union, a transfer of powers of national organs to the organs of the European Community was effected. This delegation is conditional and may persist only so long as these powers are exercised in a manner that is compatible with the preservation of the foundations of state sovereignty of the Czech Republic, and in a manner which does not threaten the very essence of a state governed in a broad, substantive sense by the rule of law ["materieller Rechtsstaat"].

● Direct applicability in national law and applicational precedence of Community law follows from Community law doctrine itself, as it has emerged from the case-law of the ECJ.

● Art. 10a of the Constitution operates in both directions: It forms the normative basis for the transfer of powers to the Community and simultaneously opens up the national legal order to the operation of Community law, including rules relating to its effects within the legal order.

 

European arrest warrant [31] 
(Pl. ÚS 66/04)

2006

● Domestic legal enactments, including the constitution, should be interpreted in conformity with the principles of European integration and the cooperation between Community and member state organs(Euro-conforming interpretation / interpretation in the light of European law).

● If the national methodology for the interpretation of constitutional law does not enable a relevant norm to be interpreted in harmony with European Law, it is solely within the Constituent Assembly's prerogative to amend the Constitution.

 

Regulation on the
reimbursement of
medications
 
(Pl. ÚS 36/05)

2007

● When interpreting art. 36 of the Czech Charter of Fundamental Rights and Basic Freedoms (Listina základních práv a svobod), which guarantees the right to assert one's rights before an independent and impartial court, the Cconstitutional Court (Ústavní soud) has to take into account the jurisprudence of the European Court of Justice, which has already adjudicated on the interpretation of the procedural standards determined in a EC directive.

 

Lisbon
judgement I

(Pl. ÚS 19/08)

2008

● The transfer of powers of bodies of the Czech Republic to an international organisation under art. 10a of the Constitution cannot go so far as to violate the very essence of the republic as a sovereign and democratic state governed by the rule of law. Apart from that, it is solely a question of politics.

● If, on the basis of a transfer of powers, the "competence of competences" were transfered to an international organisation, i.e. if it could change its powers at will, and independently of its member states, this would violate the essence of the republic as a sovereign and democratic state in the sense of art. 1 of the Constitution.[32] 

● The modern concept of sovereignty assumes that state sovereignty is not an aim in and of itself, but is a means for fulfilling the fundamental values of the constitution.

● For the preventive review of whether an international treaty is consistent with the constitutional order, the appropriate point of reference is the constitutional order as a whole, not only its material core.

 

Lisbon
judgement II

(Pl. ÚS 29/09)

2009

● The purpose of the constitutional review of an international treaty is to preventively eliminate inconsistencies between treaty obligations and the constitutional order before the treaty becomes binding. These inconsistencies must be alleged without undue delay. It is contrary to the international public law principle of good faith to disproportionately draw out the definitive decision to accept or not accept the treaty obligation.

● Under the Czech Constitution, the President of the Republic is obliged to ratify without undue delay an international treaty that was negotiated by the government and the ratification of which has been approved by the democratically elected Parliament. Only a proceeding before the Constitutional Court postpones the moment of ratification until the time of the decision of the Constitutional Court.

● It is not possible for the Constitutional Court to determine in advance authoritatively a catalogue of non-transferrable powers of the organs of the Czech Republic. These limits should be left primarily to the constitutional legislator to specify.[33]

● The European Parliament is not the exclusive source of democratic legitimacy for decisions adopted on the level of the European Union. That legitimacy is derived from a combination of structures existing both on the domestic and on the European level. One cannot insist on a requirement of absolute equality among voters in the individual member states[34]

 

Satversmes tiesa (Latvia) [35] 

Italy, Germany, France, Greece, Austria, Denmark, Estonia, Poland, Lithuania, Czech Republic, Hungary, appendix

name

year

substance

reference

Administrative Violation Code
(2004-01-06)

2004

● After joining the European Union the Republic of Latvia has to honour all the liabilities following from the membership.

● As concerns relations with other member states, EU (Community) norms shall be applied. If international legal liabilities do not conform with the legal norms of the European Communities, the member state shall undertake the necessary measures to eliminate the unconformity. This can also happen by the way of applying the law. [36]

 

Riga Free Port territory planning
(2007-11-03)

2008

● (In this decision, the Satversmes tiesa has underlined that, with the ratification of the Accession Treaty, EU law has become integral part of Latvian law) [37]

 

Lisbon judgement
(2008-35-01)

 

2009

● The Accession Treaty and subsequent amendments of the Founding Treaties have to be ratified according to the procedure established in art. 68(2) of the Constitution (Satversmes). [38]

● If there has been no request to examine the necessity of a referendum in the course of an abstract control, the citizen is entitled to claim by the way of constitutional complaint that a referendum has to be performed. [39]

● Important changes in the conditions of the membership of Latvia in the Union may affect the constitutional foundations of the Republic of Latvia (art. 1, 2, 3, 4, 6 or 77 of the Satversme). In these cases, the procedure under art. 77 and not the procedure under art. 68 of the Satversmes must be applied. [40]

● Concerning the procedure for the withdrawal from the Union, the Treaty of Lisbon provides for broader guarantees as compared to general international public law. The period of two years for the coming into effect of the withdrawal, as set in art. 50(3) EU Treaty, is proportionate and justified by objective reasons. [41]

● The European Union cannot be considered as a federal state. The Treaty of Lisbon guarantees the souvereignty of the member states. The European Union represents a new form of legal and political order. [42]

● The constitutional limits to the transfer of competences arise from the fundamental values of the Latvian State. [43]

● The right to enter into international engagements is an attribute of State sovereignty. The exercise of the powers is subject to the values of the state set in sovereignty. [44]

● The transfer of competences to the European Union does not dilute but strengthen the sovereignty of the Latvian people, as long as it is compatible with the values of the Latvian state. Possible decrease of Latvian direct influence in the Union's institutions should be assessed in the context of increased direct influence. [45]

● A possible accession of the European Union to the ECHR would not be incompatible with the Satversme.[46]

● Although the dissemination of information on the European integration should be seen as good administration, deficits in the information process do not violate art. 2 of the Statsversme [which reserves the sovereign power to the people of Latvia].[47]

● The right to initiate the procedure under art. 68(4) Satversmes [the referendum], is an exclusive right of (one-half of) the members of the Saeima.[48]

● The Saeima, when deciding on the ratification of an international treaty which modifies the conditions of membership in the European Union, must vet the treaty (and therefore have access to preliminary assessments on the possible implications, made available to its members). The Saeima must also assess which procedure shall be applied for the adoption of the law.[49]

 

Alkotmánybíróság (Hungary) 

Italy, Germany, France, Greece, Austria, Denmark, Estonia, Poland, Lithuania, Czech Republic, Latvia, appendix

name

year

substance

reference

Lisbon jugdement
(143/2010. (VII.14.) AB)

2010

● The entering into force of the Treaty of Lisbon does not hinder posterior constitutional review

● The European integration clause (art. 2/A of the Constitution) cannot be interpreted in a way that would deprive the clauses on sovereignty and rule of law of their substance

● The Treaty of Lisbon does not challenge the independence, sovereignty and rule of law character of the Hungarian state

 

Appendix: Opinions on constitutional issues in Sweden 

Italy, Germany, France, Greece, Austria, Denmark, Estonia, Poland, Lithuania, Czech Republic, Latvia, Hungary

Swedish courts have a distinct low profile in EU matters. The constitutional law of the EU membership is predominantly elaborated by the Riksdag (the parliament). The debate in Sweden is primarily concerned with the position of the Riksdag and not with fundamental rights protection.

Konstitutionsutskottet (Riksdag Committee on the Constitution)

(Accession to the European Union)
(1993/94:KU 21)

1994

● The transfer of competencies to the EU may not violate "the principles of the form of government".

- with these is meant primarily the role of the Swedish Riksdag as the foremost representative of the Swedish people

● The protection of fundamental rights in the EU must be equivalent to the level afforded by the ECHR and the Swedish Instrument of Government.

● In case of conflict between the Swedish constitution and EU law there is no issue of supremacy but rather of whether the EU has a properly transferred competence to adopt the norm in question. Should that not be the case, the norm is not valid in Sweden.

(1993/94:KU 21)

Lagrĺdet (Council on Legislation)

(Treaty Establishing a Constitution for Europe)
(restated concerning the Treaty of Lisbon)

2005



2008

● The "principles of the form of government" also include the fundamental principles of the two constitutional laws the Freedom of the Press Act (Tryckfrihetsförordningen) and the Fundamental Law on Freedom of Expression (Yttrandefrihetsgrundlagen), which are instrumental to securing the free formation of opinion in Sweden. The basic principles of these two laws are the public nature of official documents, the freedom to communicate information for the purpose of publication, the ban on censorship, the protection of sources and the special system of liability.

● The Constitutional Treaty weakened the role of the Swedish Riksdag but not enough to violate the constitution.

● The protection of fundamental rights was adequate and even streng-thened by the Constitutional Treaty.

(opinion 28.06.2005,
restated 13.06.2008)

 

[ Seitenanfang ] Zurück ] Home ]   © Thomas.Schmitz@jur.uni-goettingen.de

horizontal rule

[1]  See also the materials from the Riga Symposiums " Verfassungsrechtsprechung zwischen Souveränität und Integration" / "Konstitucionālo tiesu prakse. Ceļā no suverenitātes uz integrāciju", University of Latvia, 2007 - 2009.

[2]  This has already been recognized in the "Solange I" decision of the German Federal Constitutional Court (Bundesverfassungsgericht) from 1974 (BVerfGE 37, 271, p. 278 and 282).

[3]  Compiled by Giulia Rossolillo, University of Pavia.

[4]  Oppenheimer (ed..), The Relationship between European Community law and National Law: The Cases, vol. 1, 1994, vol. 2, 2003.

[4a]  BVerfGE 22, 293 = Entscheidungen des Bundesverfassungsgerichts (decisions of the Federal Constitutional Court, official reports), quoted by indicating the volume and the page number, here: 22nd volume, beginning of the quoted decision at page 293.

[5]   Casebook Hummer/Vedder, Europarecht in Fällen, 4th edition 2005.

[6]  Confirmed in BVerfGE 58, 1 (Eurocontrol) and BVerfGE 37, 271, 277 (Solange I).

[7]  Confirmed in BVerfGE 73, 339 (Solange II).

[8]  See also the different statement in BVerfGE 89, 155, 175 (Maastricht judgement).

[9]  See also, as a preparing step for this decision, BVerfGE 52, 187 ("maybe.,..") from 1979.

[10]  See on this aspect also the Czech Ústavní soud in its first Lisbon judgement.

[11]  See also, as a preparing step for this decision, BVerfGE 68, 1, 98 f. (Pershing missiles) from 1984: Substantial modifications of the integration program and its execution, as laid down in the founding treaty, are not any more covered by the ratifying legislative act. See also the Lisbon judgement.

[12]  This idea has been given up de facto in the decision BVerfGE 102, 147 (banana market organisation).

[13]  Explicit divergence from the previous statement in BVerfGE 58, 1, 27 (Eurocontrol).

[14]  An English translation of excerpts of the judgement has been published by Weatherill, Cases and Materials on EU Law, 8th edition 2007, p. 662 ff. There are some inaccuracies in the translation. However, with regard to the terminology used by the Bundesverfassungsgericht, this was unavoidable.

[15]  See now the regulation in art. 23(4-6) BL (and implementing law).

[16]  See also the judgements of the Polish Trybunał Konstytucyjny and the Czech Ústavní soud.

[16a]  Note: The English translation of the judgement uses the term "obvious transgressions of the boundaries" that is not precisely correct. "Obvious" means "offensichtlich", but the German term "ersichtlich" serves to indicate a degree of certainty, which is considerably lower.

[16b]  See, however, the correction and conretisation in BVerfG, 06.07.2010, 2 BvR 2661/06 (Honeywell).

[16c]  See for another attitude the second Lisbon judgement of the Czech Ústavní soud.

[17]  See on this aspect also the Czech Ústavní soud in its second Lisbon judgement.

[17a]  See also the criticism of the Justice Landau in his dissenting opinion, no. 94 (102 ff.).

[17b]  Denied by Justice Landau  in his dissenting opinion, no. 94 (105 ff.).

[17c]  Note that the same applies to the three per cent barrier clause, which had been introduced after this decision, see BVerfGE 135, 259 (with dissenting opinion of the Juctice Müller, BVerfGE 135, 299).

[17d]  Presentation following the decision of 2014 on the merits. The essential considerations have been developed already in the thorough "summary review" in the decision of 2012 on the applications for the issue of a temporary injunction.

[17e]  Note that the ECJ has not followed this reasoning in its OMT Judgement of 16.06.2015 (ECJ, case 2/14, Gauweiler and others). After its preliminary ruling, the Federal Constitutional Court has not yet taken its final decision in the case.

[19]  See also the much stricter view of the German Bundesverfassungsgericht (BVerfGE 83, 37), concerning art. 20(2) phrase 1 and art. 28(1) phrase 2 BL: "People" means only the people of the state; therefore any right of foreigners to vote and to stand as a candidate at local elections is unconstitutional, even if it does not have any impact on national institutions or policies. See now, however, the new regulation in art. 28(1) phrase 3 BL.

[19a]  Confirmed in Conseil constitutionnel, 12.05.2010, 2010-605 DC (conerning online betting and gambling).

[20]  Compiled by Giorgos Christonakis, Athens.

[21]  Concerning the incompatibility of this position with European Union law, see footnote 26. In contrast, the lower ordinary and administrative courts have pronounced themselves frequently and in various case configurations in favour of the primacy of Community law over constitutional law.

[22]  See also Österreichischer Verfassungsgerichtshof, cases G2/97 (Slg. 15215), G24/01 a.o. (Slg. 16293) and G121/03 a.o., concerning the constitutional review of unapplicable statutes and ordinances.

[23]  Compiled by Julia Laffranque, University of Tartu.

[24]  Compiled by Piotr Czarny. University of Cracow.

[25]  See on this aspect also the judgements of the German Bundesverfassungsgericht and the Czech Ústavní soud.

[26]  In some member states (Greece, Spain, Poland, Lithuania), the Courts have denied the primacy of European Union law over the national constitution. Thereby, they are challenging a core element of the European legal order. The European Court of Justice has elaborated the primacy of Union law over national constitutional law already in 1970 in the decision Internationale Handelsgesellschaft (case 11/70). The member states have accepted it (in principle) on the occasion of all later reforms and enlargements of the Union. It is a central component of the acquis communautaire, which all member states that acceeded later have explicitly accepted.

[27]  Note that these remarks of the Trybunał Konstytucyjny rest upon a misunderstanding of the term "supranational organisation"; see for the terminology Schmitz, Integration in der Supranationalen Union, 2001, p. 70 ff., 164 ff. (chapters 1 and 2).

[28]  Note that Lithuania has regulated important aspects of the relation between national law and EU law in the Constitutional Act on Membership of the Republic of Lithuania in the European Union of July 13, 2004. According to section 2, EU law shall be a constituent part of the legal system of the Republic of Lithuania. It shall be applied directly and, in the event of collision of legal norms, have primacy over Lithuanian law. The wording of section 2 does not address the problem of primacy over the Lithuanian Constitution.

[29]  Concerning the incompatibility of this position with European Union law, see footnote 26.

[30]  Compiled by Harald Christian Scheu, Charles University in Prague.

[31]  See on this aspect also the judgements of the German Bundesverfassungsgericht and the Polish Trybunał Konstytucyjny.

[32]  Se also the Maastricht judgement of the Bundesverfassungsgericht.

[33]  See for another attitude the Lisbon judgement of the Bundesverfassungsgericht.

[34]  See on this aspect also the Lisbon judgement of the Bundesverfassungsgericht.

[35]  Compiled by Jānis Pleps, School of Business Administration Turība, doctorand at the University of Latvia. Translated from Latvian to German by Līga Ziediņa. See also the original Latvian compilation with detailed literal quotations from the judgements (p. 13 ff.) and a summary of the presentation at the the Riga Symposium 2009.

[36]  Cf. no. 7 of the judgement.

[37]  Cf. no. 24.2 ("...Eiropas Savienības tiesības ir kļuvušas par neatņemamu Latvijas tiesību sastāvdaļu"). This understanding reflects the strictly monistic perspective of Latvian constitutional law. Note that in most member states, following a dualistic approach, EU law is understood and applied as a separate law, coming from outside the national legal order.

[38]  See no. 10.4 of the judgement.

[39]  See no. 11.2 and 11.3. of the judgement.

[40]  See no. 15 of the judgement.

[41]  See no. 16.2 of the judgement.

[42]  See no. 16.3 of the judgement.

[43]  See no. 17 of the judgement.

[44]  See no. 17. of the judgement.

[45]  See no. 18.3 f. of the judgement.

[46]  See no. 18.8 of the judgement.

[47]  See no. 18.10 of the judgement.

[48]  See no. 19 of the judgement.

[49]  See no. 20 of the judgement.

[50]  Compiled by Ola Zetterquist, University of Gothenburg.

 

[ Seitenanfang ] Zurück ] Home ]   © Thomas.Schmitz@jur.uni-goettingen.de