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Lecture 17(2)

Lecture 17(2)

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Published by manavmelwani

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Published by: manavmelwani on May 12, 2010
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Supremacy of EU law: other European visions
 Uk generally seen as one of the most Eurosceptic countries in the EU. There issome truth in this but it’s fair to say that Europe has at times also got cold feetabout Uk membership. There are of course infringements of community law butthe UK takes it quite seriously and even other countries which areeuroenthusiasts but they have infringements. Here we’re going to look at inparticular what other supreme courts have done in order to engage withEuropean law supremacy claim made by the ECJ.Learning outcomes(i)Identify the main attitudes of other MS’s supreme courts towards EUlaw supremacy in generalGermany has had 2 main issues over the EU law supremacy claim by the ECJ,both with regards to their constitution.1.EU law is supreme but does it regard fundamental rightsa.Fair question in the 60s as at the time, the ECJ basically dealt witheconomic freedoms and what if one of those breached fundamentalrights2.The issue of competence and the transfer of sovereignty to the EUGermany: defending constitutional values
 The issue at stake: A 24 of German Constitution permits transfer of legislative powers to international organisations. But what if theirinstruments contravene constitutionally protected values?
(the judgment was such that where there is conflict, the ECJ shouldprevail. In response to that, they came up with a case called solange 1)
Round 1 : The reception o
(Case 11/70)
by the GermanConstitutional Court
and ‘Solange 1’ :
‘The Community still lacks a democratically legitimated Parliament… It still lacks in particular a codified catalogue of fundamentalrights’
‘therefore, in the ... case of a conflict between Community law and… the guarantees of fundamental rights in the [German]Constitution … the guarantee of fundamental rights… prevails
aslong as
[HENCE THE NAME ‘SOLANGE’, ndr] the … Community [has]not removed the conflict’.
(the ECJ sort of accepted they could live with this. There have beensome other isolated national rebellions but the EU doesn’t collapse.If they’re repeated and unresolved it’s an issue though)
(the ecj nat court dialogue is not just one way. The ECJ is quiteresponsive. So here, eventually the ECJ pulled itself together andmanaged to create a doctrine for potential of fundamental rights ata com level. So a few years later, the germans modified their stanceafter assessing the level of fundamental right protection offered bythe ECJ)
Round 2 : ECJ develops protection for HR; Federal Court embraces ECJin
‘Solange II’ 
‘In the view of these developments, it must be said that,
so long as
the EC, and in particular the … Court, generally ensure an effectiveprotection of fundamental rights …the Federal Constitutional Courtwill no longer exercise its jurisdiction…’
Round 3 : ‘ever growing’ EU competencies and the
more prudentdecision (1993)
(what happens if we keep transferring power to them; where do theEU law making institutions draw their legitimacy from? And wheredo we as german people stand on this. SO almost systematicallywhenever there are new treaties that try and expand thecompetence of the EU, there are national challenges which end upbefore the german constitutional court where people ask if thetreaty is going to go against their values. This has happened anumber of times and the first is the most famous; the brunnerdecision in regards to the treaty of mastricht)
(court said there is an issue but at this stage of development i don’tthink it’s reached a tilting point where... check if you can)
‘there is a breach of [the German Constitution] if an [EU] Act …does not establish with sufficient certainty the intended programmeof integration. … Germany preserves the quality of a sovereignstate’ [paras. 48 and 55]
‘The Court guarantees this essential content as against thesovereign powers of the Community’ [para. 13]Round 4 – The Lisbon judgement
Gauweiler v Treaty of Lisbon
, 2009
‘ The Basic Law does not grant the German state bodies powers to transfersovereign powers in such a way that their exercise can independentlyestablish other competences for the European Union. It prohibits thetransfer of competence to decide on its own competence (
)... ‚
(This was brought before th german const court by a left wing germanparty. It’s not particularly strong in germany and even less influential inthe EP. So they might say, this transfer of competence is depriving us of 
the democratic powers given to us by the german const. The court saidthe key issue here is what sort of powers we give to the EU not how manypowers we give them. So as long as it’s not the EU that gets to decide itsown competencies then we should be fine. We have to make sure the EUdoesn’t get the competence to decide it’s own competences it’s alright.Basically the german constitution prohibits that)Round 4 – The Lisbon judgement
Gauweiler v Treaty of Lisbon
, 2009
Accordingly, the Act approving an international agreement and thenational accompanying laws must therefore be such that Europeanintegration continues to take place according to the principle of conferralwithout the possibility for the European Union of taking possession of 
or to violate the Member States’ constitutionalidentity which is not amenable to integration, in this case, that of the BasicLaw.
Chalmers: constitutional tollerance model
We are not too happy with it but as long as it remains within certainboundaries we will tolerate it. Chalmers thinks this idea applies tomost EU states. (it is true it applies to the brit parliament but ukcourts seem to accept that it’s hands are completely tied but htegerman const court seems to not quite accept this)
(almost makes some pts about the pts of a german parliamentscompetence. E.g. taxation and stuff where if the EU tried to threaten thisthe german courts and const courts would be entitled to say no to the ECJand the EU law supremacy claim)But some new MSs still antagonise ECJ and EU law supremacy - PolishConstitutional Court decision on EU membership (2005):(these states with new found independence are quite jealous of the sovereignty.So you can see how sensitive the issue was for the polish constitutional courtback then. Joining the EU doesn’t mean we’re just forgetting our newly acquirednational sovereignty.)
‘Given its supreme legal force … the Constitution enjoys precedence of binding force and precedence of application … The precedence overstatutes of … international agreements which were ratified … vianationwide referendum …
in no way signifies an analogous precedence of these agreements over the Constitution’ 
‘The principle of interpreting domestic law in a manner “sympathetic toEuropean law” … has its limits. In no event may it lead to resultscontradicting the explicit wording of constitutional norms or beingirreconcilable with the minimum guarantee functions realised by theConstitution’.

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