Tải bản đầy đủ - 0 (trang)
13 Primacy Is Potentially in Conflict with the Protection of Fundamental Rights by the Member States

13 Primacy Is Potentially in Conflict with the Protection of Fundamental Rights by the Member States

Tải bản đầy đủ - 0trang

168



4  The Mandate of the EU Under Article 16 TFEU and the Perspectives of Legitimacy…



4.13.1  D

 ifferent Positions Taken on the Primacy of EU Law

by National Courts

The notion of primacy of EU law does not necessarily mean that Member States’

jurisdictions accept that EU arrangements always take precedence over national

law.239 High courts in several national jurisdictions contest primacy and the Polish

and Lithuanian constitutional courts even reject primacy.240 A number of constitutional courts have taken a more moderate approach, the German constitutional court

being the most obvious example.

In its Honeywell ruling, the German constitutional court241 confirmed earlier case

law in which it stated that the primacy of EU law cannot be comprehensive and

that – as authors report242 – the Member States remain the ‘Masters of the Treaties’,

keeping the last word. It claimed243 that the review of the Treaties cannot be transferred to the EU bodies alone, even where this may lead to an amendment of the

Treaties or to an expansion of the scope of EU competences. In exceptional situations where a breach of competences by the European Union is sufficiently qualified, review by the Bundesverfassungsgericht can be considered. In short, the

German constitutional court confirmed in this ruling that, at the end of the day,

when the limits of EU competences are at stake,244 it does have the power to invalidate EU law.245

The German constitutional court realises that this tension may be unavoidable

and offered a cooperative approach for such situations.246 The cooperative approach

even allowed the German constitutional court to ask the Court of Justice of the

European Union – for the first time – for a preliminary ruling in Gauweiler and others, however without relinquishing its own ultimate responsibility. In this view the

ruling of the Court of Justice could thus only be advisory. The opinion of Advocate



239



 This relates to views on legal or constitutional pluralism.

 Armin von Bogdandy, Stephan Schill ‘Overcoming absolute primacy: Respect for national identity under the Lisbon Treaty’, CMLR, 48, Issue 5, pp. 1417–1453, 2011, at 1433 (footnote 34 of

Chap. 2).

241

 Case 2 BvR 2661/06, 6 July 2010, Honeywell, at 57.

242

 Daniel Halberstam & Christoph Möllers, The German Constitutional Court says “Ja zu

Deutschland!”, 10 German Law Journal, 1241–1258, 2009, at 241. This view does not reflect communis opinio amongst commentators, as follows from: Paul Craig, Integration, Democracy and

Legitimacy, in: The evolution of EU Law (Second Edition) Paul Craig and Grainne de Burca,

Oxford University Press, 2011, at 37.

243

 At 57 of the ruling.

244

 Or, in other words, where the EU might act ultra vires.

245

 This answers, for the Bundesverfassungsgericht, what Weiler calls “The Decisive Question” on

the autonomy of the EU legal order, The Constitution of Europe, “Do the new clothes have an

emperor?” and other essays on European integration, Joseph Weiler, Cambridge University Press,

1999, Chapter 9.

246

 The CJEU should be involved beforehand, in the context of a preliminary procedure under

Article 267 TFEU; at 60 of the ruling.

240



4.13  Primacy Is Potentially in Conflict with the Protection of Fundamental Rights…



169



General Cruz Villalón explains this ambivalence.247 The Advocate General also proposes that, in the same spirit of cooperation, the Court should give a ruling without

referring to this constitutional debate relating to primacy of EU law, which the

Court did.

The case law of national courts in a number of other Member States refers to

limitations to primacy, consisting in demands that the European Union exercises its

powers without infringing certain fundamental principles relating to the essence of

the state.248 Just to mention three examples: in France, the highest courts ranked EU

law below the French Constitution.249 Italian courts do not accept that EU law has

primacy over the Italian Constitution.250 In Spain, too, the constitutional court

expressed reservations against the primacy of EU law over the Constitution.251

Popelier makes an interesting distinction between two strategies of Member

States relating to the incorporation of EU law into their national constitutional systems.252 The first strategy is what she calls an ‘enabling strategy’ allowing an unconditional transfer of powers to the European Union and an unconditional precedence

of EU law over national law. The second is a ‘legitimacy strategy’, concerned with

providing legitimacy to EU law in the national jurisdiction and thus contesting

unconditional primacy. The positions of the constitutional courts mentioned above

reflect the second strategy.

Some scholars argue that Article 4(2) TEU, insofar as it lays down that the

European Union shall respect national identity, nuances the notion of primacy of

EU law.253 Other scholars argue that Article 4(2) does not limit primacy, but must be

regarded as a restriction, under EU law itself, to the exercise of EU competences.254

In this latter view, Article 4(2) TEU does not limit primacy, but the powers conferred on the Union. Advocate General Poiares Maduro expresses an interesting

view in Arcelor,255 a case predating the Lisbon Treaty.256 He states that the Treaty on

 Case C-62/14, Gauweiler and others, EU:C:2015:400, Opinion of AG Cruz Villalón,

EU:C:2015:7, at 34–69.

248

 Armin von Bogdandy, Stephan Schill ‘Overcoming absolute primacy: Respect for national identity under the Lisbon Treaty’, CMLR, 48, Issue 5, pp. 1417–1453, 2011, at 1434.

249

 Further read: EU Law, Text, Cases and Material (Fifth Edition) Paul Craig and Grainne de

Burca, pp 269–272, 2011.

250

 Further read: EU Law, Text, Cases and Material (Fifth Edition) Paul Craig and Grainne de

Burca, pp 283–285, 2011.

251

 Armin von Bogdandy, Stephan Schill ‘Overcoming absolute primacy: Respect for national identity under the Lisbon Treaty’, CMLR, 48: pp. 1417–1453, at 1435.

252



P. Popelier, Europe Clauses’ and Constitutional Strategies in the Face of Multi-Level

Governance, Maastricht Journal of European and Comparative Law, 2014, at 300.

253

 Armin von Bogdandy, Stephan Schill ‘Overcoming absolute primacy: Respect for national identity under the Lisbon Treaty’, CMLR, 48, Issue 5, pp. 1417–1453, 2011, at 1418.

254

 Christiaan Timmermans, The Magic World of Constitutional Pluralism, European Constitutional

Law Review 10, pp. 349–358, 2014, at 356.

255

 Opinion of AG Poiares Maduro in Case C-127/07, Arcelor, at 16.

256

 And, thus, based on Article 6 TEU as it was formulated before Lisbon, also including a reference

to national values.

247



170



4  The Mandate of the EU Under Article 16 TFEU and the Perspectives of Legitimacy…



European Union itself reassures the Member States that EU law will not threaten

national constitutional values, but that the task to protect these values is transferred

to the European Court of Justice.

In short, there are different views on the role of the European Union and its relation to the Member States. These differences in views can be found amongst the

highest courts, as was just illustrated, and also amongst learned scholars. At the

centre of this debate stands the qualification of the relationship between the Union

and the Member States as heterarchical or as hierarchical, based on supremacy in

the areas where EU law applies.257

The concept of primacy and the supposedly hierarchical nature of the EU system

are at the heart of the criticism expressed by judge Masing of the German constitutional court in relation to the proposed General Data Protection Regulation. Primacy

of EU law means for instance that – particularly after the adoption of the General

Data Protection Regulation – EU law does not only impact the possibilities to protect, within the national jurisdiction, the fundamental right to data protection, but

also the rights coinciding with it, such as the freedom of expression, where there is

an interface with data protection. The scholarly debate therefore has direct impact

on the meaning of Article 16 TFEU.



4.13.2  S

 chrems as Example of a Potential Conflict

Between Primacy and Respect of Privacy and Data

Protection

The ruling of the European Court of Justice in Schrems258 revealed a potential conflict between primacy of EU law and ensuring privacy and data protection by

authorities of the Member States. This conflict concerns more particularly the duty

of these authorities to apply a decision by the European Commission (i.e. the Safe

Harbour Decision of 2000),259 on the one hand, and the power to protect the fundamental rights of individuals who lodged complaints, on the other hand. If the

national data protection authorities (DPAs) were to investigate the adequacy of privacy and data protection of in casu the United States, as challenged by the complainant, they would disregard a decision under EU law – the Safe Harbour Decision,



257





See Christiaan Timmermans, The Magic World of Constitutional Pluralism, European

Constitutional Law Review, 10, 2014, pp. 349–358, and as a further read the books reviewed by

Timmermans. See also: Avbelj Matej and Komarek Jan (eds.), Constitutional Pluralism in the

European Union and Beyond, Hart Publishing, 2012.

258

 Case C-362/14, Schrems, EU:C:2015:650, at 51–53 and 61–65. In this particular context, it is

irrelevant that the Court’s ruling declared the Safe Harbour Decision invalid.

259

 Commission Decision 2000/520/EC of 26 July 2000 pursuant to Directive 95/46/EC of the

European Parliament and of the Council on the adequacy of the protection provided by the safe

harbour privacy principles and related frequently asked questions issued by the US Department of

Commerce, OJ L 215/7.



4.14  Legitimacy Based on Output: Required to Regain Control Over Privacy and Data…



171



which declared that the level of protection was sufficient. This is the essence of the

conflict, although the facts in the case were more complicated, since the power of

the national data protection authorities (DPAs) to investigate on the basis of a complaint also resulted from EU law.

This conflict of legal obligations – stemming from the notion of primacy –

prompted the Court of Justice to a creative solution, requiring the DPA to examine

the complaint with due diligence.260 Due diligence means that in case the DPA considered the complaint well-founded, it could not decide the case itself, but would

have to bring the case before a national court which, in turn, could pose preliminary

questions to the Court of Justice.



4.14  L

 egitimacy Based on Output: Required to Regain

Control Over Privacy and Data Protection, But Not

Sufficient

The European Union also acquires legitimacy where it is capable to act in an efficient and effective manner (output legitimacy). Citizens may expect that governments – including the European Union – are able to achieve their tasks effectively.261

The Snowden affair, one of the triggers for this book, showed that the Union and the

Member States were not capable of fulfilling their task in a satisfactory way. In

addition, the phenomenon of big data as such implies a lack of control.262

Output legitimacy is essential for all government intervention. This is even more

significant in the case of international organisations, because an inherent element of

those organisations is that their institutions and bodies are not fully accountable for

their acts in elections,263 or because interinstitutional checks and balances are

flawed.264 Obviously, the situation of the European Union in terms of democratic

legitimacy is fundamentally different from other international organisations, if only

because it has a directly elected European Parliament, even though, as we have seen

above, the situation is not yet optimal despite Treaty changes. More specifically,

output legitimacy is one of the main reasons justifying intervention by the Union,

which is even illustrated by the wording of the principle of subsidiarity in Article

5(3) TEU according to which the EU may act where objectives, by reason of the

scale or effects of the proposed action, can be better achieved at Union level.

 Case C-362/14, Schrems, EU:C:2015:650, at 63.

 Menon, Anand and Weatherill, Stephen, Democratic politics in a globalising world: supranationalism and legitimacy in the European Union (2007), LSE law, society and economy working

papers, 13-2007, at 6.

262

 See Chap. 3.

263

 This statement is strongly defended in: Robert A. Dahl, Can international organizations be democratic? A skeptic’s view, in: Democracy’s Edges, Edited by Ian Shapiro and Casiano HackerCordón, Cambridge University Press, 1999, pp. 19–36.

264

 This is the criterion for democratic legitimacy in the theory of Moravcsik.

260

261



172



4  The Mandate of the EU Under Article 16 TFEU and the Perspectives of Legitimacy…



Menon & Weatherill developed a theory emphasising the dominance of output

legitimacy for EU policies and legislation; legitimacy can exist even where input

legitimacy is lacking. They basically deny that, on the EU level, a genuine debate on

a policy issue can take place giving social legitimacy to the Union as a majoritarian

system,265 with office holders accountable in elections. They explain that precisely

because of the independence of institutions like the European Commission – and

the absence of input legitimacy – certain interests can be promoted and optimal

regulatory decisions can be taken. The autors mention Pareto optimality:266 the making of markets, for instance, is a technocratic activity aiming at the creation of a

stable, long term and predictable future for economic actors and should not be constrained by effects of democratic politics.267

Their theory did not receive general support in the legal literature, but contains

elements relevant for this book. Menon & Weatherill build their theory on two arguments. First, one should not use state paradigms as starting point for measuring the

legitimacy of the European Union, because the Union has tasks that are not state-­

like, such as eliminating barriers to cross-border trade. Second, states themselves

fail to live up to their claims on legitimacy, since also many state policies are not

exposed to full democracy.268 Furthermore, EU policies serve as a corrective to

imperfect national political processes, for instance since national processes cannot

control processes taking place outside their territory.269 Menon & Weatherill conclude that international organisations do not only contribute to efficiency gains, but

also compensate for outmoded or unrepresentative political processes.

The dominance of output legitimacy is in particular justified in policy sectors

which are efficiency oriented, attempting to increase the aggregate welfare of

society,270 for instance by regulating markets, where policy choices can be extracted

from majoritarian rule. This is why Menon & Weatherill connect their theory to



265



 Menon, Anand and Weatherill, Stephen, Democratic politics in a globalising world: supranationalism and legitimacy in the European Union (2007), LSE law, society and economy working

papers, 13-2007, at 6 and 22. They base themselves on scholars like F. Scharpf and G. Majone.

Fundamental criticism is given by Paul Craig in Integration, Democracy and Legitimacy, in: The

evolution of EU Law, Second Edition, Paul Craig and Grainne de Burca, Oxford University Press

2011.

266

 Menon, Anand and Weatherill, Stephen, Democratic politics in a globalising world: supranationalism and legitimacy in the European Union (2007), LSE law, society and economy working

papers, 13-2007, at 7

267

 They call this “state taming”; Menon, Anand and Weatherill, Stephen, Democratic politics in a

globalising world: supranationalism and legitimacy in the European Union (2007), LSE law, society and economy working papers, 13-2007, at 8.

268

 They give some examples of areas where more or less technocratic instruments prevail at the

national level as well, such as competition law or banking policies.

269

 Menon, Anand and Weatherill, Stephen, Democratic politics in a globalising world: supranationalism and legitimacy in the European Union (2007), LSE law, society and economy working

papers, 13-2007, at 9.

270

 Giandomenico Majone, Europe’s ‘Democratic Deficit’: The Question of Standards, European

Law Journal, Vol. 4, No.1, March 1998, at 28.



Tài liệu bạn tìm kiếm đã sẵn sàng tải về

13 Primacy Is Potentially in Conflict with the Protection of Fundamental Rights by the Member States

Tải bản đầy đủ ngay(0 tr)

×