No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 27 October 2017
The pitfalls of the relationship between European and national judges constitute a well-travelled ground in literature, especially with regard to ‘sagas’ over the reconciliation of national sovereignty with EU law primacy. Hence, the contribution that this article is attempting to make is to explore the judicial understanding and potential of the concept of constitutional identity in the light of the newly-introduced Article 4(2) TEU by the Treaty of Lisbon, which makes it explicit that national identity encompasses constitutional specificity. A number of questions are raised and discussed. For instance: How has the Court of Justice of the European Union (CJEU) been adjudicating on issues pertaining to the constitutional identity of the Member States pre- and post-Lisbon? How far can Member States stretch the concept to avoid the tidal effect of EU law upon their legal systems? For the sake of clarity, two notions of constitutional identity are identified and presented in this article: One related to the CJEU’s case law, where ‘constitutional identity’ has been invoked by defending Member States as a qualified derogation from their EU law obligations (a ‘shield’) and another, inherent in the German Constitutional Court’s (BVerfG) use of ‘constitutional identity’ as a break to an unprecedented transfer of competences to the EU and a tool of judicial review of national implementation measures of secondary legislation (a sword). The arguments advanced hereafter suggest that the implications of identity retention as a ‘shield’ may not be far-reaching since the CJEU has, through a pragmatic use of the loyalty and proportionality principles, succeeded in reducing its effect to the bare minimum. On the other hand, as a judicial review mechanism, the German paradigm demonstrates that, as a ‘sword’, constitutional identity retention comprises, largely, a theoretical possibility. These assumptions aside, it is concluded that constitutional identity retention may provide both national judiciaries and legislatures with new opportunities to participate in trans-national constitutional development through monitoring and assessing the compatibility of the exercise of EU competence with the requirements of national constitutions.
1 Dashwood, A, ‘The Limits of European Community Powers’ (1996) 21 European Law Review 113, 113Google Scholar.
2 Weiler, J, ‘On the Power of the Word: Europe’s Constitutional Iconography’ (2005) 3 International Journal of Constitutional Law 173, 184.CrossRefGoogle Scholar
3 Consolidated versions of the Treaty on European Union [2010] OJ C83.
4 Treaty of Amsterdam 1997 OJ C340.
5 Ibid.
6 Treaty establishing a Constitution for Europe [2004] OJ C310.
7 Chalmers, D et al, European Union Law: Text and Materials (Cambridge, Cambridge University Press, 2010) 202 CrossRefGoogle Scholar.
8 See Besselink, L, ‘National and Constitutional Identity before and after Lisbon’ (2010) 6 Utrecht Law Review, 36, available at www.utrechtlawreview.org. CrossRefGoogle Scholar
9 Sieberson, S, Dividing Lines Between the European Union and its Member States: The Impact of the Treaty of Lisbon (Cambridge, Cambridge University Press, 2008) 93 CrossRefGoogle Scholar. See also Van Gerven, W, The European Union: A Polity of States and Peoples (Stanford, Stanford University Press, 2005) 38 Google Scholar.
10 Chalmers, D et al, European Union Law: Text and Materials (Cambridge, Cambridge University Press, 2010) 202 CrossRefGoogle Scholar.
11 Craig argues that the only way a Member State can accept the CJEU’s conception of absolute primacy is by inserting an ‘auto-limitation’ clause in its national constitution with the effect of making EU law review-proof. See Craig, P, ‘Direct Effect, Primacy and the Nature of the Legal Order’ in Craig, P and De Búrca, G (eds) The Evolution of EU Law 2nd edn (Oxford, Oxford University Press, 2011) 355 Google Scholar.
12 Decision 2600-540, 27 July 2006.
13 Ibid.
14 De la Rochère, J Dutheil and Pernice, I ‘European Union Law and National Constitutions’ in Andenas, M and Usher, J (eds) The Treaty of Nice and Beyond: Enlargement and Constitutional Reform (Oxford, Hart Publishing, 2003) 73–74 Google Scholar.
15 Ibid, 73.
16 Gormley, L, ‘Reflections on the Architecture of the European Union after the Treaty of Amsterdam’ in O’Keeffe, D and Twomey, P, Legal Issues of the Amsterdam Treaty (Oxford, Hart Publishing, 1999) 60 Google Scholar.
17 See also Peers’ argument regarding the lack of additional protection offered to ‘essential state functions’ by Article 4(2) TEU. Peers, S, EU Justice and Home Affairs Law (Oxford, Oxford University Press, 2011) 56 Google Scholar.
18 Case C-213/07, Michaniki AE v Ethniko Simvoulio Radiotileorasis [2008] ECR I-09999.
19 Council Dir 93/37/EEC concerning the coordination of procedures for the award of public works contracts, [1993] OJ L199, as amended by European Parliament and Council Dir 97/52/EC [1997] OJ L328.
20 Opinion of Advocate General Maduro in Case C-213/07, Michaniki AE v Ethniko Simvoulio Radiotileorasis [2008] ECR I-09999, paras 31–33.
21 See Kosta, V, ‘Case note on Michaniki ’ (2009) 5 European Constitutional Law Review 501, 507CrossRefGoogle Scholar.
22 Ibid, para 33 ‘the fact that the view of the fundamental right held by a Member State is not shared by other Member States does not prevent that Member State from relying on it so as to justify a restriction of the freedom to provide services’.
23 Case C-36/02, Omega Spielhallenund Automatenaufstellungs-GmbH [2004] ECR I-9609.
24 Opinion of Advocate General Maduro in Case C-213/07, Michaniki AE v Ethniko Simvoulio Radiotileorasis [2008] ECR I-09999, para 31.
25 Consolidated versions of the Treaty on the Functioning of the European Union [2010] OJ C83.
26 Case C-208/09, Sayn-Wittgenstein v Landeshauptmann Von Wien [2011] ETMR 12.
27 Ibid, para 74.
28 ie the Law on the abolition of the nobility enjoys constitutional status and implements the principle of equal treatment (paras 85–87 of the judgment in Sayn-Wittgenstein).
29 ie there was enough proof that the contested measure restricting fundamental EU law freedoms was necessary for the protection of the principle of equal treatment and that such an objective could not have been attained by less restrictive measures (para 90 of the judgment in Sayn-Wittgenstein).
30 Ibid, para 92.
31 Ibid, para 86.
32 Ibid.
33 C-438/05, Viking [2007] ECR I-10779; C-341/05, Laval [2007] ECR I-11767. The same can be argued about Case C-112/00, Schmidberger v Republic of Austria [2003] ECR I-5659 where the CJEU upheld the freedom of expression and assembly over Art 34 TFEU (invoked vertically against the State), but only having subjected the conduct of the Austrian Government to a detailed assessment of compliance with the principle of proportionality.
34 See Davies, A, ‘One Step Forward, Two Steps Back? The Viking and Laval Cases in the CJEU’ 37(2) Industrial Law Journal 126 CrossRefGoogle Scholar. See also European Trade Union Confederation (ETUC), ‘Viking and Laval Cases: Explanatory Memorandum’, 4 March 2008, available at www.etuc.org/a/4704.
35 Case C-55/94, Gebhard v Consiglio dell’ Ordine degli Avvocati e Procuratori di Milano [1995] ECR I-4165.
36 Case C–67/96, Albany International [1999] ECR I-5751.
37 Case C-271/08, Commission v Germany, Judgment of the Court, 15 July 2010. This case concerned the compatibility of the fundamental right to bargain collectively with Dirs 92/50 and 2004/18 implementing the freedom of establishment and the freedom to provide services in the field of public procurement. See Case Comment by Smith, S in (2010) 6 Public Procurement Law Review 225 Google Scholar.
38 ETUC, above n 34.
39 Kombos, C, ‘The Esoteric Dimension of Constitutional Pluralism: EU’s Internal Constitutional Sub-Units and Non-Symbolic Cumulative Constitution’ in Birkinshaw, P and Barney, M, The European Legal Order After Lisbon (The Hague, Kluwer, 2010) 313 Google Scholar.
40 Opinion of Advocate General Maduro in Case C-213/07, Michaniki AE v Ethniko Simvoulio Radiotileorasis [2008] ECR I-09999, para 33.
41 Héritier, A, ‘The Accommodation of Diversity in European Policy-Making and Its Outcomes: Regulatory Policy as a Patchwork’ (1996) 3 Journal of European Public Policy 149 CrossRefGoogle Scholar.
42 Case C-208/09, Sayn-Wittgenstein v Landeshauptmann Von Wien [2011] ETMR 12, para 87.
43 See Case C-446/03, Marks & Spencer plc v David Halsey (Her Majesty’s Inspector of Taxes) [2005] ECR I-10837; Case C-148/02, Garcia Avello [2003] ECR I-11613; Case C-192/05, Tas Hagen and Tas [2006] ECR I-10451; Case C-135/08 Janko Rottmann [2009] OJ C113, 1 May 2010.
44 Thym, D, ‘The Political Character of Supranational Differentiation’ (2006) 31 EL Rev 781, 795Google Scholar.
45 Dougan, M, ‘Expanding the Frontiers of EU Citizenship’ in Barnard, C, Odudu, O (eds) The Outer Limits of European Law (Oxford, Hart Publishing, 2009) 163 Google Scholar.
46 Decision of 30 June 2009 (2BvE 2/08, 5/08, 2BvR 1010/08, 1022/08, 1259/08, 182/09). The BVerfG’s judgment can be divided into three main areas: (i) the democratic legitimisation of the EU; (ii) the German Federation sovereignty and the EU’s identity; and (iii) the level of competences retained by the Bundestag. For the purpose of this paper we will focus on the issues of sovereignty and identity. For an analysis of all aspects of the judgment, see comments by Grimm, D, Reestman, J, Bieber, R and Lock, T on the German Constitutional Court’s Decision on the Lisbon Treaty in (2009) 5(3) European Constitutional Law Review 345–421 CrossRefGoogle Scholar; Doukas, D, ‘The Verdict of the German Federal Constitutional Court on the Lisbon Treaty: Not Guilty, but Don’t Do it Again!’ (2009) 34 EL Rev 866 Google Scholar; Thym, D, ‘In the Name of Sovereign Statehood: A Critical Introduction to the Lisbon Judgment of the German Constitutional Court’ (2009) 46(6) Common Market Law Review 1795 Google Scholar.
47 M Höpner, ‘Disappointment, Some Satisfaction, and a Little Bit of Hope: On the Social Content of the Lisbon Ruling’ in A Fischer-Lescano, C Joerges and A Wonka (eds), ‘The German Constitutional Court’s Lisbon Ruling: Legal and Political Science Perspectives’, ZERP Discussion Paper 1/2010, 25.
48 BVerfG, Lisbon judgment, paras 211, 217.
49 Horvath, E and Rubio-Marin, R, ‘“Alles Oder Nichts”? The Outer Boundaries of the German Citizenship Debate’ (2010) 8 International Journal of Constitutional Law 72, 90CrossRefGoogle Scholar.
50 BVerfG, Lisbon judgment, para 228.
51 V Skouris, ‘The Relationship of the European Court of Justice with the National Constitutional Courts’, Twenty Years of the Hungarian Constitutional Court Symposium, 2010, available at www.mkab.hu/index.php?id=vassilios_skouris__president_of_the_ european_court_of_justice.
52 BVerfG, Lisbon judgment, para 241.
53 Dir 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Dir 2002/58/EC [2006] OJ L105/54.
54 Decision of 2 March 2010, 1 BvR 256/08, 1 BvR 263/08, 1 BvR 586/08.
55 The specified classes of data which can be retained are listed in Art 5 of the Data Retention Dir. Art 6 of the Dir sets the limits of the period of retention, which may be between six months and two years from the date of the communication.
56 Dir 2002/58 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Dir on privacy and electronic communications) [2002] OJ L201/37.
57 On 1 July 2008, the Irish Government sought to annul the Directive on the ground that it was not adopted on an appropriate legal basis. Ireland, which along with Slovakia was outvoted when the Council adopted the Dir, argued that the Community was not competent to adopt such a measure, at least not on the legal basis that was chosen, since its centre of gravity did not concern the functioning of the internal market but public safety and crime prevention. See Konstadinides, T, ‘Wavering between Centres of Gravity: Comment on Ireland v Parliament and Council ’ (2010) 35 EL Rev 88 Google Scholar.
58 S 212 of the German Data Retention Judgment.
59 Federal Constitutional Court, Press release No 11/2010 of 2 March 2010, Judgment of 2 March 2009, 1 BvR 256/08, 1 BvR 263/08, 1 BvR 586/08. See also para 218 of the judgment.
60 See for an analysis of the BVErfG’s decision: De Simone, C, ‘Pitting Karlsruhe Against Luxembourg? German Data Protection and the Contested Implementation of the EU Data Retention Directive’ (2010) 11(3) German Law Journal 291 Google Scholar.
61 Re Honeywell, Federal Constitutional Court (Second Chamber) [2011] 1 CMLR 33.
62 Case C-144/04, Mangold [2005] ECR I-9981.
63 Dir 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16.
64 Ibid, para 74.
65 See in detail Schmidt, M, ‘The Principle of Non-discrimination in Respect of Age: Dimensions of the ECJ’s Mangold Judgment’ (2006) 7(5) German Law Journal 505, 519Google Scholar.
66 See Advocate General Mazák’s Opinion in Case C-411/05, Palacios de la Villa [2007] ECR I-08531.
67 Constitutional identity is mentioned four times in the judgment (paras H4; 40; 44(1); 50).
68 See Muir, E, ‘Of Ages in—and Edges of—EU Law’ (2011) 48 CML Rev 39 Google Scholar.
69 Re Honeywell, above n 61, para 63, ‘With the disputed general principle of the prohibition of discrimination based on age derived from the constitutional traditions common to the Member States, however, neither a new field of competences was created for the Union to the detriment of the Member States, nor was an existing competence expanded with the weight of a new establishment.’
70 Such a concern has been expressed by Pilakos. See Pilakos, A, ‘Who is the Ultimate Arbiter? The Battle over Judicial Supremacy in EU Law’ (2011) 36(1) EL Rev 109, 123Google Scholar.
71 ie ‘the question of whether Community law did not demand §14.3 sentence 4 of the Law on Part-Time Working and Fixed-Term Contracts to be set aside’. Re Honeywell, above n 61, para 100.
72 Re Honeywell, ibid, para 100.
73 Case C-555/07, Seda Kücükdeveci v Swedex GmbH & Co KG [2010] OJ C 63/4.
74 Re Honeywell, above n 61, para H8.
75 Ibid, paras 38–40.
76 Ibid, para 49.
77 Maduro, M, ‘Interpreting European Law: Judicial Adjudication in a Context of Constitutional Pluralism’ (2007) 1(2) European Journal of Legal Studies 1, 3Google Scholar.
78 G Davies, ‘Constitutional Disagreement in Europe and the Search for Pluralism’ Eric Stein Working Paper No 1/2010, available at papers.ssrn.com/sol3/papers.cfm?abstract_ id=1559323.
79 Decision 2010-605 DC [2010] 3 CMLR 4. It has been argued, however, that France’s recent constitutional review did not seem to ensure the supremacy of the French Constitution. See Hunter-Henin, M, ‘Constitutional Developments and Human Rights in France’ (2011) 60 International and Comparative Law Quarterly 167 CrossRefGoogle Scholar.
80 On the ‘EU workable constitutional identity’ thesis see M Rosenfeld, ‘The European Treaty—Constitution and Constitutional Identity: A Comment on Professor von Bogdandy’ Jean Monnet Working Paper 5/04.