EU-Member States: the principles

The sovereign claims of EU Law The concept of sovereignty: there is an absolute power in the internal structure of a political society Under the model of international law, it is the states which are masters of the treaties and not the other way around. This model was overturned by two judgments of the Court of Justice in the early 1960s, Van Gend en Loos, 1963, and Costa/Enel, 1964.

Costa/Enel By contrast with ordinary international treaties, the EC Treaty has created its own legal system. The EC Treaty has its own institutions, its own personality, its own legal capacity of representation on the international plane, and more particularly real powers stemming from a transfer of powers from the Member States. The EC Treaty thus created a body of law which binds both their nationals and themselves.

The primacy of EU law The integration of EC law into the national law makes it impossible for the States to accord precedence to a national measure over the EC law, accepted by them on a basis of reciprocity. The executive force of EC law cannot vary from one State to another, without jeopardizing the attainment of the EC objectives.

The necessity of cooperation The claims of the Court of justice must be examined critically. Legal authority rests upon a relationship in which the level of authority is accepted not just by the party seeking it but also by the parties subject to it. The execution of EU law is a matter for domestic authorities and national governments within Member States. Constitutional Treaty, article I-13 provided that EU law would have primacy over the law of the Member States.

The Lisbon Treaty The Lisbon Treaty. A declaration (17) was attached, in accordance of which “The Conference recalls that, in accordance of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States”. This is the first time that the Costa case law has been explicitly endorsed and ratified by all Member States. Such approach gives the jurisprudence greater legitimacy. Primacy now represents the political consensus as to the status of EU law.

The domestic constitutional position The position of the national constitutional courts was critical. This is because all national courts want to preserve the national sovereignty. In relation to the compatibility of the Lisbon Treaty with the German Constitution, the German Constitutional Court rendered a famous judgment in 30 June The protection of the principle of democracy requires the respect of national constitutional identity, i.e. the rule of law, the principle of social state, the principle of federation, the protection of the human dignity and of the human rights.

Limits to the process of European integration The transfer of sovereign powers to the EU is allowed under the condition that the sovereign statehood of a constitutional state is maintained on the basis of an integration programme according to the principle of conferral and respecting the Member States’ constitutional identity, and that at the same time the MS do not lose their ability to politically and socially shape the living conditions on their own responsibility.

An identity review It must be possible within the German jurisdiction to assert the responsibility for integration if obvious transgressions of the boundaries take place when the EU claims competence and to preserve the constitutional identity by means of an identity review. If legal protection cannot be obtained at the EU level, the Federal Court reviews whether legal instruments of the EU institutions, adhering to the principle of subsidiarity, keep with the boundaries of the sovereign powers accorded to the EU by way of conferred power.

The respect of national identities In accordance with Article 4(2) TEU, “The Union shall respect the equality of Member States before the Treaties, as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State”.

The definition of national identity In accordance with the GFCC the safeguarding of sovereignty demanded by the principle of democracy requires that a sufficient space is left to the MS for the political formation of the economic, cultural and social living conditions. Essential areas of democratic formative action conditions comprise, inter alia, the citizenship, the civil and military monopoly of the use of force, revenue and expenditure including external financing for the realization of the fundamental rights, criminal law and its administration (deprivation of liberty), the disposition of the language, family and education law, freedom of opinion, press and of association and the dealing with the profession of faith or ideology. Towards a common interpretation. The role of the ECJ.

The quality of EU legal authority The primacy of EU law applies whenever a conflict appears before any court or body which is competent to take legal action. Primacy of the EU law is the most direct expression of its sovereignty. The doctrine of pre-emption governs the question of when there is a conflict and what the consequences of a conflict are for EU law and national law. It’s important to determine the respective places of the EU law and national law. There are 3 different types of EU intervention: Exclusive competence, shared competence and supportive competences.

Limits of EU legal authority Doctrine of conferred powers. Article 5 TEU: Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the MS in the Treaties to attain the objectives set out therein. The ECJ (and not national courts) has the right to assess whether or not, in issuing particular legal provisions, the EU legislative organs acted within the delegated competences and in accordance with the principles of subsidiarity and proportionality.

Flexibility provision Article 352 TFEU: If action by the EU should prove necessary, within the framework of the policies defined by the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures. The new provision applies to a more extensive set of objectives: the Union (and not the Community) objectives. The new provision is controversial given the latitude with which the earlier provision was interpreted. It has been deployed for about 30 legislative acts per annum.

New constraints The Treaty of Lisbon introduced a number of constraints. National parliaments have to be informed to consider whether the new measures are compatible with the principle of subsidiarity. Moreover, the new measures shall not entail harmonisation of MS’s laws or regulations in cases where the Treaties exclude such harmonisation. Finally, this procedure cannot serve as a basis for attaining objectives pertaining to the Common Foreign and Security Policy.

The fidelity principle Article 4(3) TEU: “Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The MS shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the EU. The MS shall refrain from any measure which could jeopardise the attainment of the EU’s objectives.

State liability This provision draws all institutional actors (administrative, legislative and judicial) into the duty of effectively sustaining EU policy. The fidelity principle can be seen as a basis for the State liability. In accordance with the ECJ, when a MS fails to fulfil its obligations imposed by the EU law, its full effectiveness requires that there should be a right to reparation for the consequences of the loss and damage caused. In the absence of EU legislation, it is for the national legal order to designate the competent courts and lay down the detailed procedural rules for legal proceedings intended fully to safeguard the rights which individuals derive from EU law.