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Published online by Cambridge University Press: 27 October 2017
A little more than four decades ago, the European Court of Justice declared that the law of the European Communities constitutes the supreme law of the Member States. The national institutions, most importantly the national courts, were to apply rules of Community law and, in so doing, were required to set aside conflicting provisions of national law, however framed. Since then, this judicially formulated constitutional principle has been developed and restated in later judgments by the ECJ. However, during the same period the absolute character of the principle has been continually challenged by the Member States.
1 Case 6/64 Flamino Costa v ENEL [1964] ECR 585.
2 Draft Treaty establishing a Constitution for Europe, Brussels (6 Aug 2004) CIG 87/04 [2004] OJ C310/1 (hereinafter referred to as the Draft Constitutional Treaty) Art I–6.
3 Art 5(1) EC.
4 Compare Rosas, A, ‘The Decline of Sovereignty: Legal Perspectives’ in Iivonen, J (ed), The Future of the Nation State in Europe (Aldershot, Edward Elgar Publishing, 1993) 130–58Google Scholar.
5 Art 48 EU.
6 Concerning the role of national parliaments within the process of European integration see further in Smith, E (ed), National Parliaments as Cornerstones of European Integration (London, Kluwer Law International, 1996)Google Scholar.
7 Dashwood, A, ‘The Relationship between the Member States and the European Union/European Community’ (2004) 41 CMLRev 355, 356Google Scholar.
8 Draft Constitutional Treaty, Art I–11.
9 Draft Constitutional Treaty, Art IV–443.
10 Draft Constitutional Treaty, Art I–60. Through this provision the doctrine of the ECJ on the irreversible character of the integration process is explicitly refuted. Compare Case 6/64 Costa v ENEL [1964] ECR 585 594. Nevertheless, it is clear that a possibility for negotiated withdrawal, with reference to principles of public international law, has been at hand since the Genesis of the Communities. Compare Art 54, Vienna Convention on the Law of Treaties, 1155 UNTS 331.
11 Draft Constitutional Treaty, Art I–46(2).
12 Draft Constitutional Treaty, Protocol No 1 on the Role of National Parliaments in the European Union.
13 For analytical accounts of this process see Weiler, JHH, ‘The Transformation of Europe’ in Weiler, JHH, The Constitution of Europe: ‘Do the New Clothes have an Emperor?’ and Other Essays on European Integration (Cambridge, Cambridge University Press, 1999) 3 Google Scholar. Sweet, A Stone Governing with Judges Constitutional Politics in Europe (Oxford, Oxford University Press, 2000) 152–78CrossRefGoogle Scholar.
14 Case 6/64 Costa v ENEL [1964] ECR 585, 593–594 (emphasis added).
15 Case 11/70 [1970] ECR 1125, para 3.
16 Mancini, GF, ‘The Making of a Constitution for Europe’ (1989) 26 CMLRev 595, 596Google Scholar (also published in Keohane, RO and Hoffman, S (eds), The New European Community (Boulder, Colo, Westview Press, 1991) 177–94, 178Google Scholar).
17 Opinion 1/91 Draft Agreement relating to the creation of the European Economic Area [1991] ECR I–6076 para 21 (emphasis added).
18 MacCormick, N, Questioning Sovereignty: Law, State and Practical Reason (Oxford, Oxford University Press 1999) 101–2CrossRefGoogle Scholar.
19 EU law is incorporated through the European Communities Act 1972. The dualist approach is clearly reflected in the often cited reasoning by the Court of Appeal in Macarthys Ltd v Smith [1979] 3 All ER 325, 329.
20 In Sweden Union law is incorporated into the body of national law through Anslutningslagen SFS 1994:1500.
21 d’Etat, Conseil, Raoul Georges Nicolo, reported in English in [1990] 1 CMLR 173 Google Scholar.
22 Case 2 BvL 52/71 Internationale Handelsgesellschaft mbH v Einfuhr-und Vorratsstelle für Getreide und Futtermittel ‘Solange I’, 37 BverfGE 271, reported in English in [1972] CMLR 540.
23 8th Report on the Activities of the European Communities (Brussels, 1975) 269–70.
24 Case 2 BvR 197/83 Wünsche Handelsgesellschaft ‘Solange II’, 73 BVerfGE 339, reported in English in [1987] 3 CMLR 225.
25 Grundgesetz für die Bundesrepublik Deutschland, Art 23.
26 Cases 2BvR 2134/92 and 2153/92 Manfred Brunner and others v the European Union Treaty, 89 BVerfGE 155, reported in English in [1994] 1 CMLR 57.
27 Corte Costituzionale case Frontini v Ministero delle Finanze, reported in English in [1974] 2 CMLR 372.
28 Corte Costituzionale case Spa Fragd v Amministrazione delle Finanze dello Stato [1989] RDI 103. See also the ruling by the Corte Costituzionale in case 170/84 SpA Granital v Aministrazione delle Finanze dello Stato . An unofficial translation into English is found in (1984) 21 CMLRev 756.
29 Arts 292 and 230 EC and Art 146 Euratom.
30 Case 314/85 [1987] ECR 4199, paras 15–20.
31 Compare Weiler, above n 13, 320: ‘[n]onetheless, [the ECJ] did not build up a repository of credibility as a body which effectively patrols the jurisdictional boundaries between the Community and Member States. This era passed with the shift to majority voting after the entry into force of the SEA and the seeds—indeed, the buds—of crisis became visible. It became a matter of time before one of the national courts would defy the ECJ on this issue. Member States would become aware that, in a process that gives them neither de jure or de facto veto power, the question of jurisdictional lines has become crucial.’
32 For a general overview of the case law on this issue, see Oppenheimer, A (ed), The Relationship between European Community Law and National Law: The Cases i–ii (Cambridge, Cambridge University Press, 1994–2003)Google Scholar. For general overviews, see Slaughter, AM, Stone, A, Sweet, and Weiler, JHH (eds), The European Courts and National Courts—Doctrine and Jurisprudence (Oxford, Hart Publishing, 1998)Google Scholar. See further Kumm, M, ‘Who is the Final Arbiter of Constitutionality in Europe?’ (1999) 36 CMLRev 356 Google Scholar.
33 Cases 2BvR 2134/92 and 2153/92 Manfred Brunner and others v the European Union Treaty, 89 BverGE 155, reported in English in [1994] 1 CMLR 57, 91.
34 Højsteret judgment of 6 Apr 1998 in case I–361/1997 Carlsen and others v Rasmussen, reported in English in [1999] 3 CMLR 854, para 33.
35 8th Report on the Activities of the European Communities, n 23 above, 269–270.
36 Case C–224/01 Gerhard Köbler v Republik Österreich [2003] ECR I–10239, para 59.
37 Motiverat yttrande riktat till konungariket Sverige enligt artikel 226 i Fördraget om upprättande av Europeiska gemenskapen till följd av överträdelse av artikel 234 tredje stycket EG, Doc C (2004) 3899, Brussels (13 Oct 2004). Text not yet available in English.
38 Compare Weiler, JHH, Haltern, UR, and Mayer, FC, ‘European Democracy and its Critique’ (1995) 18 West European Politics 4 CrossRefGoogle Scholar.
39 Compare Weatherill, S, Law and Integration in the European Union (Oxford, Oxford University Press, 1995) 210–20Google Scholar. See also Sweet, A Stone, Governing with Judges Constitutional Politics in Europe (Oxford, Oxford University Press, 2000) 178 CrossRefGoogle Scholar.
40 It should be noted that during the early period of European integration the ECJ took a restrictive position with regard to safeguards for individual rights. A good illustration of this is found in the judgment in Case 1/58 Friedrich Stork v High Authority [1959] ECR 17, para 4. The integration of safeguards for human rights into the body of Community law commenced during the late 1960s by the judgment in Case 29/69 Erich Stauder v City of Ulm Sozialamt [1969] ECR 419. This doctrine was thereafter successively restated and refined in a number of judgments such as those that in Case 4/73 J Nold KG v Commission [1974] ECR 491 and Case 44/79 Liselotte Hauer v Land Rheinland-Pfalz [1979] ECR 3727. Fundamental principles safeguarding human rights and fundamental freedoms were codified in the TEU Art 6(2) and Art 13 EC, through the Amsterdam Treaty in 1995. On 7 Dec 2000, the European Parliament, the Council, and the Commission adopted a politically, but not legally, binding Charter of Fundamental Rights of the European Union [2000] OJ C/364/1. For a critical analysis of the ECJ’s role in this development see Coppel, J and O’Neill, A, ‘The European Court of Justice: Taking Rights Seriously’ (1992) 29 CMLRev 669 Google Scholar. For different perspectives see Keeling, D and Mancini, F, ‘Democracy and the European Court of Justice’ [1994] MLR 52 Google Scholar; Weiler, JHH and Lockhart, N, ‘“Taking Rights Seriously” Seriously, the European Court and its Fundamental Rights Jurisprudence’, part I (1995) 32 CMLRev 51 Google Scholar, part II (1995) 32 CMLRev 579.
41 Cases C–376/98 Federal Republic of Germany v European Parliament and Council of the European Union [2000] ECR I–8419.
42 See, e.g., Scott, S Douglas, Constitutional Law of the European Union (London, Longway, 2002) 165–169 Google Scholar. See also the case note by Usher, JA (2001) 38 CMLRev 1519 Google Scholar.
43 See M Dougan, ‘The Convention’s Draft Constitutional Treaty: A Tidying-up Exercise that Needs Some Tidying-up of Its Own’, The Federal Trust Online paper 27/03, at http://www.fedtrust.co.uk/default.asp?groupid=0&search=Dougan (last visited 3 June 2005) 7; Dashwood, A, ‘The Relationship between the Member States and the European Union/European Community’ (2004) 41 CMLRev 355, 378Google Scholar.
44 Compare Cases, 10–22/97 Ministero delle Finanze v IN.CO.GE.’90 Srl [1998] ECR I–6307.
45 Compare Case C–226/97 Johannes Martinus Lemmens [1998] ECR I–3711.
46 Declaration on Art I–6, CIG 87/04 ADD 2, 1 [2004] OJ C310/1, 428. The Declaration is annexed to the Treaty and shall therefore form an integral part thereof: Draft Constitutional Treaty Art IV–442. Its legal importance is furthermore underlined by the principles for interpretation laid down in public international law compare Art 31, Vienna Convention on the Law of Treaties, 1155 UNTS 331.
47 See Draft Constitutional Treaty Art I–11(1)–(2).
48 Arts 292, 230 EC. See also the judgment in Case 314/85 Foto-Frost (Firma) v Hauptzollamt Lübeck-Ost [1987] ECR 4199, paras 17–20.
49 Draft Constitutional Treaty Art I–14(2)(j), III–270–III–277.
50 Draft Constitutional Treaty Art I–12(4), I–16, I–40 – I–41, III–294 – III–313.
51 Draft Constitutional Treaty Art III–376. It should be noted that this explicit exclusion of judicial competence does not cover art I–16. However this Art does only set down the material scope, fundamental objectives of the CFSP and the general duty of Member State loyalty. The provision does not confer any competence on the Union Institutions. Accordingly it is hardly possible for the European Court to establish jurisdiction over the CFSP by reference to Art I–16.
52 Editorial Comment, ‘The CFSP under the EU Constitutional Treaty—Issues of Depillarization’ (2005) 42 CMLRev 325 Google Scholar. The problems were spotted at an earlier stage by Alan Dashwood, who urged the Member States to tackle the issue at the IGC. Dashwood, A, ‘The Relationship between the Member States and the European Union/European Community’ (2004) 41 CMLRev 355 Google Scholar, 365–66, 379–80. See also Shaw, J, What’s in a Convention? (Vienna, Institute for Advanced Studies, 2003) 22–23 Google Scholar.
53 Act of Accession (Anslutningslagen), SFS 1994:1500.
54 In the proposition concerning constitutional amendments necessitated by accession, the Government cited the reasoning of the Bundesvervaßungsgericht in the Brunner decision concerning Kompetenz-Kompetenz and continued that if such a view is valid in Germany it ought to be also in Sweden: Proposition 1993/94:114, 19.
55 In this connection the Parliament argued for a somewhat questionable separation between the issues of supremacy and ultra vires; if a provision of Community law is found to fall outside the scope of conferred competence it should not be considered to be valid law in Sweden, and accordingly the issue of supremacy, will not be raised: Declaration by the Parliamentary Committee on Constitutional Issues, 1993/94KU21 29.
56 Instrument of Government (Regeringsformen), Ch. 10, §5.
57 Declaration by the Parliamentary Committee on Constitutional Issues, 1993/94 KU 21, 21.
58 Declaration by the Joint Committee on Constitutional Issues and Foreign Affairs, 2003/04 KUU1. The declaration is a reaction to the Government message to the Parliament, Skr 2003/04:13.
59 CONV 850/03.
60 Declaration by the Joint Committee on Constitutional Issues and Foreign Affairs, 2003/04 KUU1, 51. Translated by PC.
61 Proposition 2001/02:72. The Amendment entered into force on 1 Jan 2003.
62 Proposition 2001/02:72, 34–35.
63 Öberg, U and Hettne, J, Domstolarna i Europeiska Unionens Konstitution SIEPS 2003:15 (Stockholm, SIEPS, 2003)Google Scholar; Bull, T, En berättelse om två konstitutioner in ‘En konstitution för Europa?’ SIEPS 2004:3-7 (Stockholm, SIEPS, 2004) 165 Google Scholar.
64 Melin, M, ‘Kodifiering av företrädesprincipen – förändring eller inte?’ (2004) 7 Europarättslig tidskrift 27 Google Scholar.
65 Draft Constitutional Treaty, part II.
66 Draft Constitutional Treaty, Art I–9(2).
67 Draft Constitutional Treaty, Arts I–12–I–17.
68 Draft Constitutional Treaty, Protocol No 1 on the Role of National Parliaments in the European Union. It should be underlined that the principle of subsidiarity does not govern the scope of conferred competences, but only the exercise of such competences by the Union institutions. Concerning the issue of monitoring the scope of the conferred competences with regard to the Draft Constitutional Treaty, see Weatherill, S, ‘Better Competence Monitoring’ (2005) 30 ELRev 23 Google Scholar.
69 M Kumm and VF Comella, ‘Altneuland: The EU Constitution in a Contextual Perspective’, Jean Monnet Working Paper 5/04, NYU School of Law, 2004, at http://www.jean-monnetprogram.org/papers/04/040501.html (last visited 3 June 2005) 18.
70 Draft Constitutional Treaty, Art I–44.