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Central European Constitutional Courts in the Face of EU Membership : The Influence of the German Model in Hungary and Poland [1 ed.]
9789004234550, 9789004234543

Author / Uploaded
Allan F. Tatham

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Central European Constitutional Courts in the Face of EU Membership

Constitutional Law Library VOLUME 6

The titles published in this series are listed at brill.com/cll

Central European Constitutional Courts in the Face of EU Membership The Influence of the German Model in Hungary and Poland

By

Allan F. Tatham

LEIDEN • BOSTON 2013

Library of Congress Cataloging-in-Publication Data Tatham, Allan F. Central European constitutional courts in the face of EU membership : the influence of the German model in Hungary and Poland / by Allan F. Tatham. pages cm. -- (Constitutional law library ; v. 6) Includes bibliographical references and index. ISBN 978-90-04-23454-3 (hardback : alk. paper) -- ISBN 978-90-04-23455-0 (e-book) 1. Constitutional courts--Hungary. 2. Constitutional courts--Poland. 3. Law--Hungary--German influences. 4. Law--Poland--German influences. 5. European Union--Hungary. 6. European Union--Poland. I. Title. KJC5456.T38 2013 347.43’035--dc23 2013000612

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, IPA, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. ISSN 1871-4110 ISBN 978-90-04-23454-3 (hardback) ISBN 978-90-04-23455-0 (e-book) Copyright 2013 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Global Oriental, Hotei Publishing, IDC Publishers and Martinus Nijhoff Publishers. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper.

This book, its composition and completion is dedicated to my mother, Ann, and to the memory of my late father, Allan, without whose love, care and support over the years none of the present work would have been possible. It is further dedicated to mis hermanos paulinos who together have created a very congenial and cherished environment for me to carry this work through to completion.

Whosoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the law-giver to all intents and purposes and not the person who first wrote or spoke them. – Bishop Benjamin Hoadly (1676–1761) Dictum (1717)

CONTENTS Acknowledgments��xi Permissions��xv Table of Cases Cited�� xvii Table of Legislation Construed��xxxiii Abbreviations�� liii Introduction��1 A. Objectives of Research��1 1. Introducing the Main Objective��1 2. Why a Study of Two Central European Judiciaries and their Responses to EU Law?��2 3. Why Look at the Model Created by the German Constitutional Judiciary vis-à-vis European Integration?��5 4. The Main Research Questions��5 B. Methodology of the Research��8 1. An Analysis Based on Case-Law��8 2. A Note on Materials and Language��9 C. Structure of the Research�� 10 1. Elementary Structure of the Study�� 10 2. Set-up of the Study�� 10 I The General EU Constitutional Context�� 13 Background�� 13 A. Judicial Construction of the EU Constitution�� 13 1. Constitutionalisation of the Treaties�� 13 2. Constitutional Basis of EU Integration�� 17 B. Framework for Constitutional Court Reticence vis-à-vis European Integration�� 19 1. Introduction�� 19 2. The ‘Individuality’ of National Constitutions�� 19 3. Verfassungskern�� 24 C. Transjudicial Communication in the EU�� 30 1. Introduction�� 30 2. Reception of Constitutional Concepts Mediated Through Constitutional Court Jurisprudence�� 32 D. Conclusion�� 39

viii

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II The Predominance of the German Model in Central Europe: Migrations of Legal and Constitutional Ideas�� 41 Background�� 41 A. Relevant Legal Models for Central Europe�� 42 1. Introduction�� 42 2. Choice of National Constitutional Courts�� 43 3. Choice of Approach to EU Law�� 43 B. Relevancy of the German Model in Central Europe�� 45 1. Introduction�� 45 2. Historic and Legal Cultural Affinities�� 45 3. Linguistic Ability and Intellectual Stimulus�� 52 4. Constitution Drafting and Constitutional Jurisdiction Formation in the Post-Communist Era�� 54 5. Resultant Influences on Constitutional Judicial Practice�� 61 C. Conclusion�� 63 III The German Federal Constitutional Court and European Law: A Case of “Thus Far, and No Further”?�� 65 Background�� 65 A. Constitutional Review�� 67 1. Introduction�� 67 2. Types of Constitutional Review�� 68 3. Constitutional Complaints (Fundamental Rights Protection)�� 69 B. Essential Core of Sovereignty�� 71 1. Introduction�� 71 2. State Based on The Rule of Law (‘Rechtsstaat’)�� 72 3. Democracy�� 74 4. Protection of Fundamental Human Rights�� 75 C. Transfers of Sovereignty and European Integration�� 77 1. Introduction�� 77 2. Transfers of the Exercise of Sovereignty�� 77 D. National Constitutional Court Acceptance�� 84 1. Introduction�� 84 2. Supremacy/Priority of Application�� 85 3. Direct effect�� 88 4. References to the European Court of Justice�� 90 E. Limits to National Court Acceptance�� 99 1. Introduction�� 99 2. Essential Core as Limitation to Integration�� 99 3. Review of National Transposing Law��121 4. Refusals to Refer��126 F. Concluding Observations��129

contentsix IV The Hungarian Constitutional Court and European Law: A Case of “Slow and Steady Wins the Race”?��135 Background��135 A. Constitutional Review��138 1. Introduction��138 2. Types of Constitutional Review��141 3. Constitutional Complaints (Fundamental Rights Protection)��144 B. Essential Core of Sovereignty��145 1. Introduction��145 2. State Based on the Rule of Law��146 3. Democracy��148 4. Protection of Fundamental Human Rights��150 C. Transfers of Sovereignty and European Integration��153 1. Introduction��153 2. Transfers of the Exercise of Sovereignty��153 D. National Constitutional Court Acceptance��159 1. Introduction��159 2. Supremacy/Priority of Application��159 3. Direct Effect��165 4. References to the European Court of Justice��168 E. Limits to National Constitutional Court Acceptance��177 1. Introduction��177 2. Essential Core as Limitation to Integration��177 3. Review of National Transposing Law��190 4. Refusals to Refer��199 F. Concluding Observations��201 V The Polish Constitutional Tribunal and European Law: A Case of “Sovereignty Regained”?��205 Background��205 A. Constitutional Review��206 1. Introduction��206 2. Types of Constitutional Review��207 3. Constitutional Complaints (Fundamental Rights Protection)��209 B. Essential Core of Sovereignty��210 1. Introduction��210 2. State Based on the Rule of Law��212 3. Democracy��216 4. Protection of Fundamental Human Rights��217 C. Transfers of Sovereignty and European Integration��220 1. Introduction��220 2. Transfers of the Exercise of Sovereignty��223

x

contents D. National Constitutional Court Acceptance��226 1. Introduction��226 2. Supremacy/Priority of Application��227 3. Direct Effect��230 4. References to the European Court of Justice��232 E. Limits to National Court Acceptance��239 1. Introduction��239 2. Essential Core as Limitation to Integration��239 3. Review of National Transposing Law��259 4. Refusals to Refer��264 F. Concluding Observations��264

VI Conclusion��269 A. Overall Context of the Conclusion��269 1. Introduction��269 2. Role of Constitutional Courts in the Face of Deepening European Integration��269 3. Evolution of Central European Judicial Approaches to the EU��276 B. The Issue of Constitutional Pluralism for Constitutional Courts: The Current Situation Explained?��281 1. Brief Recapitulation of the Current Constitutional Stand-Off��281 2. The Constitutional Stand-Off Explained as ‘Normal’��284 3. The Pivotal Nature of Art. 4 TEU��292 4. The ECJ Ship Continues on its Voyage from Lisbon��300 C. A Controversial Proposal��308 1. Introduction��308 2. Proposed Mechanism��310 3. The Actio Popularis Europae��312 4. Establishment of the Principle of Lawful Judge by the ECJ��321 D. Final Remarks��326 1. Steps Forward and the Effects of Lisbon��326 2. Ende, Végül, Koniec��327 Bibliography��329 Index��365

ACKNOWLEDGMENTS This book was originally written as a PhD thesis, which I successfully defended at the University of Leiden on 1 November 2011. Initially conceived in the pre-accession period at a time of increasingly articulated concerns of the impact of potential European Union membership on the recently-regained sovereignty of Central European democracies, the theoretical stances of the constitutional judiciaries of Hungary and Poland vis-à-vis EU law began to crystallise shortly after their becoming part of the European project on 1 May 2004. The pervasive influence in Central Europe of German constitutional law and judicial approaches to EU law has since been consistently affirmed through the case-law of the Hungarian Constitutional Court and the Polish Constitutional Tribunal. The ‘constitutional dialoguing,’ so well established between the European Court of Justice and the ‘old’ Member States’ courts, has evidently migrated to the new States of Central Europe with apparent ease. As the fruit of so many years’ work, it came as quite a shock to the system finally to experience ‘life beyond the thesis.’ Preparing this book then for publication has taken a great deal of time and patience: returning to an already-completed work after many months is, in itself, a daunting task and not rendered any easier with the updates and revisions going down to the line, as a further decision of the German Federal Constitutional Court was delivered on 12 September 2012. My list of acknowledgments is rather a long one and reflects the fact that neither the thesis nor this book would have seen the light of day without the assistance and support of a great many people. I would like to express my sincere gratitude to my supervisors. First and foremost, I am delighted to be able to acknowledge the advice, guidance and encouragement of my supervisor Prof. Dr. Christa Tobler, LL.M., Professor, Europa Institute, Institute for Public Law, Faculty of Law, University of Leiden and Professor, Europa Institute, University of Basel, throughout the preparation and defence of the PhD thesis and this book. Her incisive comments and erudite observations together with her good humour and remarkable patience in all matters bearing upon this work were pivotal to the realisation of this academic dream: as my mentor, my Doktormutter, I have been truly blessed. The work of the thesis co-supervisor, Prof. Dr. Stefaan Van den Bogaert, LL.M., Europa Institute, Institute for Public Law, Faculty of Law, University of Leiden, is hereby also kindly acknowledged, and allowed for the thesis to glide seamlessly towards its eventual defence. In addition, I wish to thank the members of the Reading Committee for their time and consideration of the PhD thesis: Prof. Dr. Judge Katalin Gombos, of the

xii

acknowledgments

University of Szeged and judge of the Regional Court of Szeged, Hungary; Prof. Dr. András Jakab, Pázmány Péter Catholic University, Budapest, Hungary and Schumpeter Fellow, Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany; Prof. Dr. iur. habil., Dr. iur. h.c., Dr. phil. h.c., Peter-Christian Müller-Graf, Ruprecht Karl University, Heidelberg, Germany; Prof. dr. W.J.M. Voermans, Chairman, Institute of Public Law, University of Leiden; and Prof. Dr. Mirosław Wyrzykowski, of the University of Warsaw, Poland and sometime judge of the Constitutional Tribunal of the Republic of Poland. My thanks also go to them as members of the Opposition Committee for their comments and for the stimulating and entertaining debate at the PhD defence ceremony which Prof. R.A. Lawson, Dean, Faculty of Law, University of Leiden also attended. The ceremony itself would not have looked as grand without my two traditional seconds (‘paranimfen’), Dr. János Volkai and Mr. Javier Porras Belarra, both of whom I greatly appreciate, and whose strength and dedication inspire me. With all three of us decked out in our white ties and tails like extras on the Fred Astaire/ Ginger Rogers’ movie, “Top Hat” (1935), they shared with me the legendary nervous last minutes before the start of the ceremony in the Academiegebouw of the University of Leiden. It would be tantamount to a great error to neglect to thank the work of those people who took the time to translate original source material, without whose efforts this comparative work would have been unattainable: for the Hungarian materials, dr. Zsófia Barát, dr. Zsófia Bitai, dr. Dalma Dudás, dr. Zsófia Glázer, dr. Marianna Kondas, dr. Viktória Mészáros, dr. Judit Németh, dr. Zsófia Németh, dr. Gabriella F. Tóth, dr. Aranka Varga, dr. Orsólya Vass, and dr. Viktória WesztergomSzabó; and for the Polish materials, dr. Kornél Kussinszky, dr. Katarzyna Lechforowicz, and dr. Agnieszka Samborska. In addition, I would like to express my great indebtedness to Ms. Judit Petróczy, Librarian at the Constitutional Court of Hungary, Budapest, for her unstinting help and unfailing humour over the many years of writing and completing this work. She has seen this work grow from its seeds, helped nurture it in times of drought and finally seen it blossom in due season. In respect of my publishers, Martinus Nijhoff/Brill, words would not be enough to convey my sense of gratitude. For their belief in this undertaking and their continued patience in having to deal with a very idiosyncratic Englishman, Ms. Lindy Melman and Ms. Bea Timmer each deserve both a mention and a medal as do Ms. Marjolein Schaake and Ms. Renee Otto for their patient guidance and professionalism in seeing me through the last stages of production, under impending deadlines. No Preface could be complete without an expression of thanks first to all the students that I have taught over the years in Hungary, in Spain and elsewhere. Their ability to deal with EU law in English at university level has never ceased to

acknowledgmentsxiii amaze me and I have been kept constantly on my toes with their difficult and searching questions. Secondly, my appreciation for colleagues at the law faculties (in date order) of Eötvös Lórand Tudományegyetem, Budapest; Pázmány Péter Katolikus Egyetem, Budapest; and Universidad CEU San Pablo, Madrid who have supported and sustained me at different periods in the composition and completion of both thesis and book. Lastly, to my mother, Ann and to my late father, Allan, without whose love, support, generosity and understanding I would not have achieved so much in life. In keeping with tradition, I dedicate this book to them and to ‘mis hermanos paulinos.’ I have endeavoured to ensure that the law contained in this book is up to date as of 30 September 2012. Needless to say, any omissions and/or errors are the exclusive responsibility of the author. Allan F. Tatham Feast Day of St. Jéronimo 30 September 2012.

PERMISSIONS The present author is grateful to the following for permission to reproduce copyright material: Constitutional Court of Hungary for permission to reproduce extracts from English-language translations available on their website at: . Constitutional Tribunal of the Republic of Poland for permission to reproduce extracts from unofficial English-language translations and summaries available on their website at: . Sweet & Maxwell publishers for permission to reproduce extracts from the Common Market Law Reports. Whilst every effort was made to trace the owners of copyright material, in a few cases this has proved to be impossible and the present author takes the opportunity to offer his apologies to any copyright holders upon whose rights he may have unwittingly infringed.

LIST OF CASES CITED European Court of Justice 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v. Tariefcommissie [1963] ECR 1�� 25, 89 28/62 to 30/62 (Joined Cases) Da Costa en Schaake [1963] ECR 31��305 6/64 Costa v. ENEL [1964] ECR 585�� 25, 298 16/65 Schwarze v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1965] ECR 877��232 57/65 Alfons Lütticke GmbH v. Hauptzollamt Saarlouis [1966] ECR 205��227 13/68 Salgoil (SpA) v. Italian Ministry for Foreign Trade [1968] ECR 453�� 169, 175 26/69 Stauder v. City of Ulm [1969] ECR 419�� 182 77/69 Commission v. Belgium [1970] ECR 237��23 8/70 Commission v. Italy [1970] ECR 961��23 9/70 Grad v. Finanzamt Traunstein [1970] ECR 825��17, 89 11/70 Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125�� 17, 182, 245, 298–299, 324 20/70 Transports Lesage & Cie SA v. Hauptzollamt Freiburg [1970] ECR 861��89 23/70 Haselhorst v. Finanzamt Düsseldorf-Altstadt [1970] ECR 881��89 25/70 EVGF v. Köster [1970] ECR 1161��182, 324 33/70 SpA SACE v. Finance Minister of the Italian Republic [1970] ECR 1213��89 6/71 Rheinmühlen Düsseldorf v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1971] ECR 823��175 39/72 Commission v. Italy [1973] ECR 101�� 195 4/73 Nold v. Commission [1974] ECR 491��101, 182, 302 34/73 Fratelli Variola SpA v. Amministrazione italiana delle Finanze [1973] ECR 981��256 167/73 Commission v. France [1974] ECR 359��23 2/74 Reyners v. Belgian State [1974] ECR 631��166 41/74 Van Duyn v. Home Office [1974] ECR 1337��17 51/76 Verbond [1977] ECR 113��17 78/76 Firma Steinike & Weinlig v. Federal Republic of Germany [1977] ECR 595�� 186 101/76 Koninklijke Scholten Honig NV v. Council [1977] ECR 797��256 107/76 Hoffmann-La Roche AG v. Centrafarm Vertriebsgesellschaft Pharmazeutischer Erzeugnisse mbH [1977] ECR 957��305

xviii

list of cases cited

106/77 Amministrazione delle Finanze dello Stato v. Simmenthal SpA [1978] ECR 629��17, 23, 25, 164, 183, 202, 227–229, 233, 279 44/79 Hauer v. Land Rheinland-Pfalz [1979] ECR 3727��101, 182, 324 98/79 Pecastaing v. Belgian State [1980] ECR 691��324 100/80 to 103/80 (Joined Cases) SA Musique Diffusion française v. Commission [1983] ECR 1825��324 244/80 Foglia v. Novello (No. 2) [1981] ECR 3045��23 8/81 Becker v. Finanzamt Münster-Innenstadt [1982] ECR 53�� 89–90 242/81 SA Roquette Frères v. Council [1982] ECR 3213��256 255/81 R.A. Grendel GmbH v. Finanzamt für Körperschaften in Hamburg [1982] ECR 2301��89 283/81 Srl CILFIT v. Ministero della Sanità [1982] ECR 3415��96, 129, 170, 200, 237, 305–306, 316–317, 323, 325 14/83 von Colson v. Land Nordrhein-Westfalen [1984] ECR 1891��23 63/83 R. v. Kent Kirk [1984] ECR 2689�� 182, 195 70/83 Kloppenburg v. Finanzamt Leer [1984] ECR 1075��89 294/83 Parti écologiste Les Verts v. European Parliament [1986] ECR 1339��1, 14–15 152/84 Marshall v. Southampton and South West Hampshire Area Health Authority (Teaching) [1986] ECR 723�� 131 222/84 Johnston v. Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651�� 101, 324 314/85 Foto-Frost v. Hauptzollamt Lübeck-Ost [1987] ECR 4199�� 264 147/86 Commission v. Greece [1988] ECR 1637��293 222/86 UNECTEF v. Heylens [1987] ECR 4097��324 379/87 Groener v. Minister for Education [1989] ECR 3967��293, 296 C-2/88 Imm. Zwartfeld [1990] ECR I-3365��23 5/88 Wachauf v. Germany [1989] ECR 2609�� 182 103/88 Fratelli Costanzo v. Comune di Milano [1989] ECR 1839��17 C-350/88 Société française des Biscuits Delacre v. Commission [1990] ECR I-395�� 196 C-106/89 Marleasing SA v. La Comercial Internacional de Alimentacion SA [1990] ECR I-4135�� 196, 202, 283 C-213/89 R. v. Secretary of State for Transport, ex parte Factortame Ltd. [1990] ECR I-2433�� 17, 25, 231, 322 C-348/89 Mecanarte-Metalúrgica de Lagoa Lda. v. Chefe do Serviço da Conferência Final da Alfândega do Porto [1991] ECR I-3277��23 C-159/90 Society for the Protection of the Unborn Child v. Grogan [1991] ECR I-4719�� 293, 303 C-320/90 to C-322/90 (Joined Cases) Telemarsicabruzzo SpA v. Circostel [1993] ECR I-393�� 316 1/91 (Opinion) Re Draft Treaty on a European Economic Area [1991] ECR I-6079�� 1, 15

list of cases citedxix

C-271/91 Marshall v. Southampton and South-West Hampshire Area Health Authority (Marshall No. 2) [1993] ECR I-4367�� 131 C-325/91 France v. Commission [1993] ECR I-3283��325 C-91/92 Faccini Dori v. Recreb srl [1994] ECR I-3325�� 131 C-46/93 and C-48/93 (Joined Cases) Brasserie du Pêcheur SA v. Germany [1996] ECR I-1029�� 284, 321, 322 C-280/93 Germany v. Council [1994] ECR I-4973�� 104 C-316/93 Vaneetveld v. SA Le Foyer [1994] ECR I-763�� 131 C-323/93 R. v. H.M. Treasury, ex parte British Telecommunications PLC [1996] ECR I-1631��283 C-422/93 to C-424/93 (Joined Cases) Erasun [1995] ECR I-1567��23 C-466/93 Atlanta Fruchthandelsgesellschaft (II) v. Bundesamt für Ernährung und Forstwirtschaft [1995] ECR I-3799�� 105 C-473/93 Commission v. Luxembourg [1996] ECR I-3207��293 C-149/94 Criminal proceedings against Vergy [1996] ECR I-299�� 176 C-24/95 Land Rheinland-Pfalz v. Alcan Deutschland [1997] ECR I-1591��87 C-338/95 Wiener v. Hauptzollamt Emmerich [1997] ECR I-6495�� 306, 316 C-27/96 Danisco Sugar AB v. Almänna Ombudet [1997] ECR I-6653��324 C-369/96 and C-376/96 (Joined Cases) Criminal proceedings against Arblade [1999] ECR I-8453�� 294 C-49/98, C-50/98, C-52/98 to C-54/98 and C-68/98 to C-71/98 (Joined Cases) Finalarte v. Urlaubs- und Lohnausgleichskasse der Bauwirtschaft [2001] ECR I-7831�� 294 C-165/98 Mazzoleni and Inter Surveillance Assistance SARL [2001] ECR I-2189�� 294 C-403/98 Azienda Agricola Monte Arcosu Srl v. Regione Autonoma della Sardegna [2001] ECR I-103�� 195 C-143/99 Adria-Wien Pipeline GmbH v. Finanzlandesdirektion für Kärnten [2001] ECR I-8365��4, 280, 307, 310 C-510/99 Criminal proceedings against Tridon [2001] ECR I-7777�� 176 C-30/00 William Hinton & Sons Lda v. Fazenda Pública [2001] ECR I-7511�� 193 C-50/00 P Unión de Pequeños Agricultores v. Council [2002] ECR I-6677��294, 314 C-99/00 Lyckeskog v. Åklagarkammeren i Uddevalla [2002] ECR I-4839�� 305–306 C-179/00 Weidacher v. Bundesminister für Land- und Forstwirtschaft [2002] ECR I-501��173, 193, 196 C-253/00 Antonio Muñoz y Cia SA v. Frumar Ltd. [2002] ECR I-7289��256 C-453/00 Kühne & Heitz NV v. Productschap voor Pluimvee en Eieren [2004] ECR I-837��323 C-465/00 (Joined Cases) Rechnungshof v. Österreichischer Rundfunk [2003] ECR-I 4989�� 280, 307, 310

xx

list of cases cited

C-171/01 Wählergruppe “Gemeinsam Zajedno/ Birlikte Alternative und Grüne Gewerkschafter-Innen/UG” v. Bundesminister für Wirtschaft und Arbeit [2003] ECR I-4301�� 280, 307, 310 C-224/01 Köbler v. Austria [2003] ECR I-10239�� 94, 97, 233, 317, 321–323, 325 C-397/01 to C-403/01 (Joined Cases) Pfeiffer v. Deutsches Rotes Kreuz, Kreisverband Waldshut eV [2004] ECR I-8835��167, 175 C-36/02 Omega Spielhallen- und Automatenaufstellungs-GmbH v. Oberbürger-meisterin der Bundesstadt Bonn [2004] ECR I-9609��132, 294, 296, 302 C-376/02 Stichting “Goed Wonen” v. Staatssecretaris van Financiën [2005] ECR I-3445�� 196 C-105/03 Criminal proceedings against Maria Pupino [2005] ECR I-5285��122, 124, 300 C-173/03 Traghetti del Mediterraneo SpA v. Italy [2006] ECR I-5177�� 94, 322–323 C-461/03 Gaston Schul Douane-expediteur BV v. Minister van Landbouw, Natuur en Voedselkwaliteit [2005] ECR I-10513�� 306 C-480/03 Hugo Clemens, b.v.b.a. Valkaniersgilde v. Walloon region, Council of Ministers, Order of ECJ: OJ 2005 C6/22�� 175–177 C-495/03 Intermodal Transports BV v. Staatssecretaris van Financiën [2005] ECR I-8151�� 306 C-14/04 Abdelkader Dellas v. Premier ministre [2005] ECR I-10253��167, 174 C-131/04 and C-257/04 (Joined Cases) C.D. Robinson-Steele v. R.D. Retail Services Ltd. [2006] ECR I-2531��167, 174 C-144/04 Mangold v. Helm [2005] ECR I-9981�� 97, 112–113 C-145/04 Spain v. United Kingdom [2006] ECR I-7917�� 132 C-355/04 P Segi v. Council [2007] ECR I-1657��294, 300 C-484/04 Commission v. United Kingdom [2006] ECR I-7471��167, 174 C-303/05 Advocaten voor de Wereld VZW v. Leden van de Ministerraad [2007] ECR I-3633�� 295, 311 C-305/05 Ordre des barreaux francophones and germanophone v. Conseil des Ministres [2007] ECR I-5305�� 311 C-341/05 Laval un Partneri Ltd. v. Svenska Byggnadsarbetareförbundet [2007] ECR I-11767��294, 302 C-402/05 P and C-415/05 P (Joined Cases) Kadi v. Council and Commission [2008] ECR I-6351��1–2, 15, 121, 300 C-432/05 Unibet (London) Ltd. v. Justitiekanslern [2007] ECR I-2271�� 294 C-438/05 International Transport Workers’ Federation v. Viking Line ABP [2007] ECR I-10779��294–295, 302 C-212/06 Government of the French Community and Walloon Government v. Flemish Government [2008] ECR I-1683�� 311 C-213/07 Michaniki AE v. Ethniko Simvoulio Radiotileorasis [2008] ECR I-9999�� 295, 299, 302

list of cases citedxxi

C-239/07 Sabatauskas [2008] ECR I-7523�� 311 C-73/08 Bressol v. Gouvernement de la Communauté française [2010] ECR I-2735�� 311 C-169/08 Presidente del Consiglio dei Ministri v. Regione Sardegna [2009] ECR I-10821�� 311 1/09 (Opinion) Re Draft Agreement on the European and Community Patents Court [2011] ECR I-1137�� 17, 310, 312–313, 315 C-208/09 Sayn-Wittgenstein v. Landeshauptmann von Wien [2010] ECR I-13693��296–297, 302 C-306/09 I.B. [2010] ECR I-10341�� 311 C-391/09 Runevič-Vardyn v. Vilniaus miesto savivaldybės administracija [2011] ECR I-0000, nyr��296, 302 C-188/10 and C-189/10 (Joined Cases) Proceedings against Melki and Abdeli [2010] ECR I-5667�� 23, 314 C-399/11 Melloni [2013] ECR I-0000, nyr�� 311 General Court (Former Court of First Instance 1990–2009) T-466/93, T-469/93, T-473/93, T-474/93 and T-477/93 (Joined Cases) O’Dwyer v. Council [1995] ECR II-2071�� 196 T-489/93 Unifruit Hellas EPE v. Commission [1994] ECR II-1201�� 195 T-115/94 Opel Austria GmbH v. Council [1997] ECR II-39�� 196 Germany Federal Constitutional Court Absatzfonds, 31 Mai 1990, 2 BvL 12, 13/88, 2 BvR 1436/87: BVerfGE 82, 159�� 97, 229 Admiral a. D., In re, 15 Dezember 1965, 1 BvR 513/65: BVerfGE 19, 342��73 Alcan, 17 Februar 2000, 2 BvR 1210/98: (2000) 35 EuR 257��87 Alfons Lütticke GmbH (“Milk powder”/ “Milchpulver”), 9 Juni 1971, 2 BvR 225/69: BVerfGE 31, 145�� 86–88 Application of the Rechtsstaat principle to Land legislatures, 1 Juli 1953, 1 BvL 23/51: BVerfGE 2, 380�� 72–73 Äußerungsrecht und Berücksichtigungsrecht, 17 Mai 1983, 2 BvR 731/80: BVerfGE 64, 135�� 104 Bananas I, 25 Januar 1995, 2 BvR 2689/94 and 2 BvR 52/95: (1995) 48 NJW 950; (1995) 30 EuR 91�� 104 Banana Market II (Bananas II), 7 Juni 2000, 2 BvL 1/97: BVerfGE 102, 147; (2000) 21 HRLJ 251�� 104–106, 124, 182, 196, 242, 252, 255, 257–259, 307 Basic Treaty between FRG and GDR (Grundlagenvertrag), 31 Juli 1973, BvF 1/73: BVerfGE 36, 1�� 178

xxii

list of cases cited

Biobronch Cough Sweets, 30 Januar 2002, 1 BvR 1542/00: (2002) 55 NJW 1486�� 96 Communist Party, 17 August 1956, 1 BvB 2/51: BVerfGE 5, 85��76 Constitutionality of Art. 211 of the Strafgesetzbuch, 21 Juni 1977, 1 BvL 14/76: BVerfGE 45, 187��73 Constitutionality of Art. 232(2) of the Zivilprozeßordnung, 8 Mai 1973, 2 BvL 5, 6, 7, 13/72: BVerfGE 35, 41��73 Data Retention, 2 März 2010, 1 BvR 256/08, 1 BvR 263/08 and 1 BvR 586/08: BVerfGE 125, 260��93, 125–126, 129 EMRK, 14 März 1973, 2 BvR 621/72: BVerfGE 34, 384��71 Ermächtigung des Krankenkassenverbände für Arztnei- und Hilfsmittelfestbeträge, 17 Dezember 2002, 1 BvL 28, 29 und 30/95: BVerfGE 106, 275��92 Erzwingungshaft zur Abgabe einer eidesstaatlichen Versicherung, 19 Oktober 1982, 1 BvL 34, 55/80: BVerfGE 61, 126��73 ESM Treaty and Fiscal Compact, 12 September 2012, 2 BvR 1390/12, 1421/12, 1438/12, 1439/12, 1440/12 and 2 BvE 6/12: BVerfGE, nyr��118–120 Eurocontrol I, 23 Juni 1981, 2 BvR 1107, 1124/77 und 195/79: BVerfGE 58, 1�� 79, 84, 101, 111, 224, 239 Eurocontrol II, 10 November 1981, 2 BvR 1058/79: BVerfGE 59, 63��84, 94, 224 European Arrest Warrant, 18 Juli 2005, 2 BvR 2236/04: BVerfGE 113, 273; [2006] 1 CMLR 378�� 6, 111, 122–124, 198, 261, 264, 266–267, 272 European Community Regulations, 18 Oktober 1967, 1 BvR 248/63 und 216/67: BVerfGE 22, 293��86, 100 European Defence Community, 15 Mai 1952, 1 BvQ 6/52: BVerfGE 1, 281�� 178 Exclusion of Part-time Employees from Company Pension Scheme, 5 August 1998, 1 BvR 264/98: (1999) 52 NJW 46 L; 1998 NZA 1246��95 Fair Trial, 26 März 1987, 2 BvR 589/79: BVerfGE 74, 358��224 Firma E.K., 13 Oktober 1970, 2 BvR 618/68: BVerfGE 29, 198�� 94, 97 Firma K., In re, 28 Juni 1972, 1 BvR 105/63 and 275/68: BVerfGE 33, 247��70 Firma St. AG, In re, 7 November 1972, 1 BvR 338/68: BVerfGE 34, 103��73 Gerichtliche Prüfungskontrolle, 17 April 1991, 1 BvR 419/81 and 213/83: BVerfGE 84, 34�� 122 Germany Treaty, 30 Juli 1952, 1 BvF 1/52: BVerfGE 1, 396�� 178 Görgülü, 14 Oktober 2004, 2 BvR 1481/04: BVerfGE 111, 307�� 70, 76, 118 Greek Bail-Out and Euro Rescue Package, 7 September 2011, 2 BvR 987/10, 1485/10 and 1099/10: BVerfGE 129, 124��115–120 H., In re, 21 Juni 1977, 2 BvR 308/77: BVerfGE 45, 363��73 hamburgischen Hundesteuergesetzes, Re des, 24 Juli 1957, 1 BvL 23/52: BVerfGE 7, 89��72

list of cases citedxxiii

Herr B. und Frau T., In re, 7 Oktober 1980, 1 BvL 50, 89/79, 1 BvR 240/79: BVerfGE 55, 72��73 Honeywell, 6 Juli 2010, 2 BvR 2661/06: BVerfGE 126, 286; [2011] 1 CMLR 33, 1067�� 9, 88, 93, 96–98, 112, 126, 133, 203, 235, 255, 257, 259, 264, 267, 280, 300, 308 Internationale Handelsgesellschaft (‘Solange I’), 29 Mai 1974, 2 BvL 52/71: BVerfGE 37, 271; [1974] 2 CMLR 540�� 28, 77, 79–80, 90, 98, 100–101, 112, 126, 130, 234, 239, 242, 252, 259, 265, 279, 290, 293, 314 Karl-Heinz O., In re, 26 Mai 1970, 1 BvR 668, 710/68 and 337/69: BVerfGE 28, 264��73 Kloppenburg, 8 April 1987, 2 BvR 687/85: BVerfGE 75, 223; [1988] 3 CMLR 1�� 87, 89–90, 95–96, 98, 111, 167–168, 175, 232 Konkordat, 21 März 1957, 1 BvR 65/54: BVerfGE 6, 290��78 Kontaksperregesetz, 1 August 1978, 2 BvR 1013, 1019, 1034/77: BVerfGE 49, 24��73 landwirtschaftliche Unternehmer, In re, 31 Mai 1988, 1 BvL 22/85: BVerfGE 78, 232��73 Lebach, 5 Juni 1973, 1 BvR 536/72: BVerfGE 35, 202��59 Le-Corbusier-Möbeln, 19 Juli 2011, 1 BvR 1916/09: BVerfGE 129, 78��70, 97, 129 Legal Assistance Treaty of 11 September 1970 between the Federal Republic of Germany and Austria, 22 März 1983, 2 BvR 475/78: BVerfGE 63, 343��73 Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267; [2010] 3 CMLR 13, 276�� 7, 11, 18, 20, 22, 28, 30, 40, 66–67, 80, 82–84, 87, 92–93, 99, 103, 106–113, 115–117, 119, 121, 130–133, 169, 179, 181, 186, 189–190, 200–202, 225–226, 248–252, 265, 267, 272, 276–279, 281, 302–303, 308–309 M. GmbH v. Bundesregierung, 12 Mai 1989, 2 BvQ 3/89: (1989) 24 EuR 270; [1990] 1 CMLR 570�� 121, 198, 264 Maastricht, 12 Oktober 1993, 2 BvR 2134 und 2159/92: BVerfGE 89, 155; [1994] 1 CMLR 57��9–10, 30, 35, 81–83, 92, 99, 102–108, 110–111, 115, 119–120, 129–133, 160, 169, 178–179, 181, 190, 201–202, 225–226, 232, 245, 248, 251, 265, 267, 272, 278, 282, 309 Mephisto, 24 Februar 1971, 1 BvR 435/68: BVerfGE 30, 173��75 Nationaldemokratische Partei Deutschlands Verbot, 22 November 2001, 2 BvB 1/01: BVerfGE 104, 218��126–129 National Implementation of EEC Regulations, 5 Juli 1967, 2 BvL 29/63: BVerfGE 22, 134�� 79, 239 Ostverträge, 7 Juli 1975, 1 BvR 274/72: BVerfGE 40, 141��224 Paul H., In re, 26 Februar 1969, 2 BvL 15, 23/68: BVerfGE, 25, 269��73 Peter D., In re, 27 März 1973, 2 BvR 311/72: BVerfGE 35, 1��73

xxiv

list of cases cited

Prinzessin Soraya, 14 Februar 1973, 1 BvR 112/65: BVerfGE 34, 269��147–148 Reparationsschäden, 13 Januar 1976, 1 BvR 631/69 and 24/70: BVerfGE 41, 126��71 Reprographic Levy under the Copyright Act, 30 August 2010, 1 BvR 1631/08: (2011) 64 NJW 288��97 Review of Statutes Transposing EU Secondary Legislation, 4 Oktober 2011, 1 BvL 3/08: BVerfGE 129, 186�� 93, 97 Rinke, 9 Januar 2001, 1 BvR 1036/99: (2001) 54 NJW 1267�� 96, 105, 307 Safeguarding Employees’ Rights in Privatisation, 25 Januar 2011, 1 BvR 1741/09: BVerfGE 128, 138��97 Sasbach, 8 Juli 1982, 2 BvR 1187/80: BVerfGE 61, 82�� 122 Single Payment Intervention Act, 14 Oktober 2008, 1 BvF 4/05: BVerfGE 122, 1; [2010] 2 CMLR 37, 986�� 124–125, 197 Socialist Reich Party, 23 Oktober 1952, 1 BvB 1/51: BVerfGE 2, 1��76 Southwest State, 12 Oktober 1951, 1 BvR 201/51: BVerfGE 1, 14�� 73, 147 Steinike & Weinlig (‘Vielleicht’), 25 Juli 1979, 2 BvL 6/77: BVerfGE 52, 187��77, 79, 91, 98, 101, 160, 178, 239 Südschleswigsche Wählerverband, Der, 5 April 1952, 2 BvH 1/52: BVerfGE 1, 208��75 T. Gmbh & Co. KG (Preliminary Reference Concerning the Collective Redundancies Directive), 25 Februar 2010, 1 BvR 230/09: (2010) 37 EuGRZ 247; [2010] 3 CMLR 47, 1286�� 96 Überwachung des Brief-, Post- und Fernmeldeverkehrs, 15 Dezember 1970, 2 BvF 1/69, 2 BvR 629/68 and 308/69: BVerfGE 30, 1��73 V. GmbH, 29 Mai 2012, 1 BvR 640/11: 2012 NVwZ 1033��97 Vermögenswerte in der Schweiz, 8 Juni 1977, 1 BvL 4/75: BVerfGE 45, 83��78 Volkszählung, 15 Dezember 1983, 1 BvR 209, 269, 362, 420, 440 and 484/83: BVerfGE 65, 1��59 Working Hours Equality, 28 Januar 1992, 1 BvL 16/83 und 10/91: BVerfGE 85, 191��90 Wünsche Handelsgesellschaft (‘Solange II’), 22 Oktober 1986, 2 BvR 197/83: BVerfGE 73, 339; [1987] 3 CMLR 225�� 28, 77, 85, 87, 92, 94–95, 101–106, 121, 130, 132, 182, 196, 242, 252, 255, 257–259, 279, 290 Federal Fiscal Court Kloppenburg, In re, 25 April 1985, VR 123/84: BFHE 143, 383��89 Federal Supreme Court Brasserie de Pêcheur II, 24 Oktober 1996, III ZR 127/91: BGHZ 134, 30; [1997] 1 CMLR 971�� 284

list of cases citedxxv Hungary Constitutional Court

Dec. 9/1990 (IV.25) AB: ABH 1990, 46��224 Dec. 21/1990 (X.4) AB: ABH 1990, 73�� 148 Dec. 23/1990 (X.31) AB: ABH 1990, 88��147–148, 151–152, 182 Dec. 30/1990 (XII.15) AB: ABH 1990, 128�� 142 Dec. 31/1990 (XII.18) AB: ABH 1990, 136�� 146 Dec. 16/1991 (IV.20) AB: ABH 1991, 58��146, 148 Dec. 34/1991 (VI.15) AB: ABH 1991, 170�� 193 Dec. 48/1991 (IX.26) AB: ABH 1991, 217��146, 148 Dec. 57/1991 (XI.8) AB: ABH 1991, 272��172 Dec. 61/1991 (XI.20) AB: ABH 1992, 280�� 171 Dec. 64/1991 (XII.17) AB: ABH 1991, 297�� 148, 182 Dec. 7/1992 (I.30) AB: ABH 1992, 45�� 193 Dec. 9/1992 (I.30) AB: ABH 1992, 59�� 146 Dec. 10/1992 (II.25) AB: ABH 1992, 72�� 146 Dec. 11/1992 (III.5) AB: ABH 1992, 77��146, 148 Dec. 25/1992 (IV.30) AB: ABH 1992, 131�� 193 Dec. 28/1992 (IV.30) AB: ABH 1992, 155�� 193 Dec. 30/1992 (V.26) AB: ABH 1992, 167�� 151 Dec. 36/1992 (VI.10) AB: ABH 1992, 207��146, 148 Dec. 37/1992 (VI.10) AB: ABH 1992, 227��146, 148 Dec. 61/B/1992 AB: ABH 1993, 831�� 142 Dec. 2/1993 (I.22) AB: ABH 1993, 33�� 155, 188 Dec. 4/1993 (II.12) AB: ABH 1993, 48��146, 148, 151 Dec. 18/1993 (III.19) AB: ABH 1993, 161�� 146 Dec. 38/1993 (VI.11) AB: ABH 1993, 256�� 146 Dec. 53/1993 (X.13) AB: ABH 1993, 323��141 Dec. 64/1993 (XII.2) AB: ABH 1993, 373�� 146, 151, 182 Dec. 17/1994 (III.29) AB: ABH 1994, 84�� 146 Dec. 28/1994 (V.20) AB: ABH 1994, 134�� 148, 178 Dec. 36/1994 (VI.24) AB: ABH 1994, 219�� 151 Dec. 45/1994 (X.21) AB: ABH 1994, 254�� 146 Dec. 60/1994 (XII.24) AB: ABH 1994, 342�� 182 Dec. 14/1995 (III.13) AB: ABH 1995, 82�� 148 Dec. 28/1995 (V.19) AB: ABH 1995, 138�� 146 Dec. 43/1995 (VI.30) AB: ABH 1995, 188�� 140 Dec. 1154/B/1995 AB: ABH 2001, 823�� 187 Dec. 4/1997 (I.22) AB: ABH 1997, 41�� 142, 159–161, 165, 178–179, 183, 190–191, 196, 201

xxvi

list of cases cited

Dec. 39/1997 (VII.1) AB: ABH 1997, 263�� 152 Dec. 52/1997 (X.14) AB: ABH 1997, 331��149, 153–154 Dec. 30/1998 (VI.25) AB: ABH 1998, 220�� 150, 154–155, 159, 161, 165, 178, 187–188, 190, 194, 196, 199 Dec. 723/B/1998 AB: ABH 1999, 795�� 193 Dec. 36/1999 (XI.26) AB: ABH 1999, 320�� 154, 187 Dec. 5/2001 (II.28) AB: ABH 2001, 86�� 154, 187 Dec. 10/2001 (IV.12) AB: ABH 2001, 123�� 193 Dec. 942/B/2001 AB: ABH 2004, 1561��166 Dec. 14/2003 (IV.9) AB: ABH 2003, 903�� 150 Dec. 485/E/2003 AB: ABH 2008, 1963�� 175–177 Dec. 17/2004 (V.25) AB: ABH 2004, 291�� 172–173, 183, 191–198 Dec. 57/2004 (XII.14) AB: ABH 2004, 809��181, 184 Dec. 58/2004 (XII.14) AB: ABH 2004, 822�� 184 Dec. 744/B/2004 AB: ABH 2005, 1281��197–198 Dec. 61/B/2005 AB: ABH 2008, 2201��164, 168–170, 175, 180–181 Dec. 1053/E/2005 AB: ABH 2006, 1824��162–164, 166, 170, 173–174, 183 Dec. 66/2006 (XI.29) AB: ABH 2006, 725��163–164 Dec. 72/2006 (XII.15) AB: ABH 2006, 819��162–163, 166–167, 174–175 Dec. 9/2007 (III.7) AB: ABH 2007, 177�� 163 Dec. 32/2008 (III.12) AB: ABH 2008, 334��184–186, 198 Dec. 61/2008 (IV.29) AB: ABH 2008, 546�� 184 Dec. 87/2008 (VI.18) AB: ABH 2008, 707�� 162 Dec. 142/2010 (VII.14) AB: ABH 2010, 668��170–171, 196–197 Dec. 143/2010 (VII.14) AB: ABH 2010, 698��22, 132, 173, 184, 186–188, 190, 198–199, 202–203, 272, 276, 278, 281 Dec. 6/2011 (II.3) AB: ABH 2011, 31��202 Dec. 29/2011 (IV.7) AB: ABH 2011, 181�� 164 Dec. 37/2011 (V.10) AB: ABH 2011, 225�� 140 Dec. 61/2011 (VII.13) AB: ABH 2011, 290��136, 164, 188–189 Supreme Court Case number: Kfv.III.37.043/2007/4�� 168 Poland Constitutional Tribunal Dec. K 1/88, 30 November 1988: OTK ZU 1988, Item 6; OTK 1988, 81�� 213 Dec. K 3/88, 4 October 1988: OTK ZU 1989, Item 2; OTK 1989, 23�� 215 Dec. K 3/89, 26 September 1989: OTK ZU 1989, Item 5�� 218

list of cases citedxxvii

Dec. K 7/89, 8 November 1989: OTK ZU 1989, Item 8; OTK 1989, 112�� 215 Dec. K 1/90, 8 May 1990: OTK ZU 1990, Item 2�� 212 Dec. K 5/90, 24 July 1990: OTK ZU 1990, Item 4�� 215 Dec. K 6/90, 12 February 1991: OTK ZU 1991, Item 1�� 218 Dec. K 7/90, 22 August 1990: OTK ZU 1990, Item 5; OTK 1990, 42�� 212 Dec. K 11/90, 30 January 1991: OTK ZU 1991, Item 2; OTK 1991, 27�� 218 Dec. K 1/91, 28 May 1991: OTK ZU 1991, Item 4�� 218 Dec. K 3/91, 25 February 1992: OTK ZU 1992, Item 1��236 Dec. K 8/91, 7 January 1992: OTK ZU 1992, Item 5; OTK 1992, I, 76��236 Dec. K 15/91, 29 January 1992: OTK ZU 1992, Item 8; OTK 1992, I, 149�� 215 Dec. K 1/92, 20 October 1992: OTK ZU 1992, Item 23; OTK 1992, II, 27�� 218 Dec. K 9/92, 2 March 1993: OTK ZU 1993, Item 6; OTK 1993, I, 60�� 213 Dec. K 14/92, 19 October 1993: OTK ZU 1993, Item 35�� 213 Dec. K 17/92, 29 September 1993: OTK ZU 1993, Item 33; OTK 1993, II, 297��237 Dec. K 5/93, 23 November 1993: OTK ZU 1995, Item 39; OTK 1993, II, 376�� 214 Dec. K 11/93, 9 November 1993: OTK ZU 1993, Item 37; OTK 1993, II, 350�� 215 Dec. K 12/93, 16 May 1995: OTK ZU 1995, Item 14�� 213 Dec. K 6/94, 21 November 1994: OTK ZU 1994, Item 39��214–215 Dec. K 11/94, 26 April 1995: OTK ZU 1995, Item 12�� 218 Dec. K 12/94, 12 June 1995: OTK ZU 1995, Item 2�� 213 Dec. K 3/95, 7 March 1995: OTK 1995, Part 1, Item 5�� 246 Dec. K 19/95, 22 November 1995: OTK ZU 1995, Item 35�� 214 Dec. K 21/96, 24 June 1997: OTK ZU 1997/2, Item 23��236 Dec. K 8/97, 16 December 1997: OTK ZU 1997/5–6, Item 70�� 219 Dec. K 15/97, 29 September 1997: OTK ZU 1997/3–4, Item 37��257 Dec. K 25/97, 22 September 1997: OTK ZU 1997/3–4, Item 35�� 214 Dec. K 28/97, 9 June 1998: OTK ZU 1998/4, Item 50�� 218 Dec. K 3/98, 24 June 1998: OTK ZU 1998/4, Item 52�� 214–215, 219 Dec. K 25/98, 23 February 1999: OTK ZU 1999/2, Item 23�� 214 Dec. K 3/99, 28 April 1999: OTK ZU 1999/4, Item 73�� 214 Dec. K 8/99, 14 April 1999: OTK ZU 1999/3, Item 41�� 214 Dec. K 15/99, 13 June 2000: OTK ZU 2000/5, Item 137��257 Dec. K 16/99, 17 October 2000: OTK ZU 2000/7, Item 253�� 214 Dec. K 20/99, 27 June 2000: OTK ZU 2000/5, Item 140�� 214 Dec. K 21/99, 10 May 2000: OTK ZU 2000/4, Item 109�� 214 Dec. K 27/99, 28 March 2000: OTK ZU 2000/2, Item 62��257 Dec. K 30/99, 11 July 2000: OTK ZU 2000/5, Item 145�� 215 Dec. K 35/99, 5 December 2000: OTK ZU 2000/8, Item 295��257 Dec. K 16/00, 7 November 2000: OTK ZU 2000/7, Item 257�� 214 Dec. K 2/02, 28 January 2003: OTK ZU 2003/1A, Item 4��257 Dec. K 11/03, 27 May 2003: OTK ZU 2003/5A, Item 43�� 84, 222, 251, 257, 309 Dec. K 33/03, 21 April 2004: OTK ZU 2004/4A, Item 31��84, 257, 309

xxviii

list of cases cited

Dec. K 18/04, 11 May 2005: OTK ZU 2005/5A, Item 49�� 198, 222, 224–226, 230–231, 233–234, 238–240, 242, 244–245, 248, 253, 258, 276–277, 281 Dec. K 24/04, 12 January 2005: OTK ZU 2005/1A, Item 3�� 134 Dec. K 32/09, 24 November 2010: OTK ZU 2010/9A, Item 108��186, 200, 245–252, 276–278, 281 Dec. Kp 3/08, 18 February 2009: OTK ZU 2009/2A, Item 9�� 62–63, 213, 232, 234–236 Dec. Kpt 2/08, 20 May 2009: OTK ZU 2009/5A, Item 78�� 215 Dec. P 2/87, 3 March 1987: OTK ZU 1987, Item 2; OTK 1987, 20�� 219 Dec. P 1/95, 11 September 1995: OTK ZU 1995, Item 26�� 215 Dec. P 12/98, 22 March 2000: OTK ZU 2000/2, Item 67�� 215 Dec. P 4/99, 31 January 2001: OTK ZU 2001/1, Item 5��208, 230 Dec. P 8/00, 4 October 2000: OTK ZU 2000/6, Item 189��215, 230 Dec. P 1/05, 27 April 2005: OTK ZU 2005/4A, Item 42; [2006] 1 CMLR 965��22, 198, 259–263, 272, 277 Dec. P 37/05, 19 December 2006: OTK ZU 2006/11A, Item 177; [2007] 3 CMLR 48, 1323�� 227–233, 238 Dec. P 1/11, 12 December 2011: OTK ZU 2011/10A, Item 115��253 Dec. S 6/91, 25 September 1991: OTK ZU 1991, Item 34; OTK 1991, 290�� 213 Dec. SK 19/98, 16 March 1999: OTK ZU 1998/3, Item 36��218, 236 Dec. SK 12/99, 10 July 2000: OTK ZU 2000/5, Item 143��236 Dec. SK 18/00, 4 December 2001: OTK ZU 2001/8, Item 256�� 208 Dec. SK 10/01, 24 October 2001: OTK ZU 2001/7, Item 225�� 209 Dec. SK 32/01, 13 May 2002: OTK ZU 2002/3/A, Item 31��236 Dec. SK 5/02, 11 June 2002: OTK ZU 2002/4/A, Item 41��236 Dec. SK 32/03, 17 May 2004: OTK ZU 2004/5A, Item 44�� 210 Dec. SK 7/06, 24 October 2007: OTK ZU 2007/9A, Item 108��236 Dec. SK 26/08, 5 October 2010: OTK ZU 2010/8A, Item 73�� 210, 263–264 Dec. SK 45/09, 16 November 2011: OTK ZU 2011/9A, Item 97�� 235, 239, 252, 255–259, 262, 264–267, 272, 276–277, 279–280, 300, 308 Dec. U 1/86, 28 May 1986: OTK ZU 1986, Item 2; OTK 1986, 32�� 214, 218 Dec. U 5/86, 5 November 1986: OTK ZU 1986, Item 1; OTK 1986, 7��218–219 Dec. U 8/90, 15 January 1991: OTK ZU 1991, Item 8; OTK 1991, 134�� 218 Dec. U 6/92, 19 June 1992: OTK ZU 1992, Item 13; OTK 1992, I, 196�� 212–213, 217–218 Dec. U 10/92, 26 January 1993: OTK ZU 1993, Item 2; OTK 1993, I, 19�� 218 Dec. U 11/97, 27 November 1997: OTK ZU 1997/5–6, Item 67�� 213–214 Dec. U 22/97, 24 March 1998: OTK ZU 1998/2, Item 16��254 Dec. W 3/93, 2 March 1994: OTK ZU 1994, Item 17; OTK 1994, I, 157��220 Dec. W 2/94, 13 April 1994: OTK ZU 1994, Item 21; OTK 1994, I, 190�� 217

list of cases citedxxix

Dec. W 7/94, 10 May 1994: OTK ZU 1994, Item 23�� 215 Dec. W 14/94, 25 January 1995: OTK ZU 1995, Item 19��236–237 Dec. W 2/95, 11 April 1995: OTK ZU 1995, Item 22�� 215 Supreme Court Supreme Court, 13 December 2005, III KK 318/05: OSNKW 2006/4, Item 37��263 Other Jurisdictions Austria Constitutional Court VfGH G 17/52, 16 Dezember 1952, VfSlg. 2455��66, 278 VfGH B 2300/95, 11 Dezember 1995, VfSlg. 14390��86, 324 VfGH B 2477/95, 12 Juni 1996, VfSlg. 14499��324 VfGH B 877/96, 26 Juni 1997, VfSlg. 14886�� 165 VfGH B 3486/96, 26 Juni 1997, VfSlg. 14889��86, 324 VfGH G 2/97, 24 Juni 1998, VfSlg. 15215�� 165, 286 VfGH B 2251/97, 13 Dezember 2001, VfSlg. 16401�� 280 VfGH B 1625/98, 24 Februar 1999, VfSlg. 15427��36, 299 VfGH W 1–14/99, 2 März 2001, VfSlg. 16100�� 280 VfGH KR 1–6/00 and 8/00, 12 Dezember 2000, VfSlg. 16050�� 280 VfGH B 614/01 and B 1642/02, 30 September 2003, VfSlg. 16988��86 VfGH SV 1/10, 12 Juni 2010: (2010) 37 EuGRZ 493��203 Belgium Cour d’Arbitrage (1983–2007), Cour Constitutionnelle (2007–date) a.s.b.l. Fédération belge des chambres syndicales de médecins (Re), CA 19 février 1997, Arrêt no. 6/97: Moniteur belge 4456��44 Scola europae v. Hermans, CA 3 février 1994, Arrêt no. 12/94: Moniteur belge 6137��44 Van Damme v. Procureur général près la Cour d’appel d’Anvers, CA 26 avril 1994, Arrêt no. 33/94: Moniteur belge 17034��44

xxx

list of cases cited Czech Republic Constitutional Court

Decision of 26 November 2008: Case No. Pl. ÚS 19/08�� 22, 132, 186, 200, 267, 277, 281 Decision of 3 November 2009: Case No. Pl. ÚS 29/09��22, 131–132, 186, 200, 267, 277, 281 Decision of 31 January 2012: Case No. Pl. ÚS 5/12��133, 267, 273 Denmark Supreme Court Højesteret, 6 April 1998, Case I 361/1997, Carlsen v. Rasmussen [1999] 3 CMLR 854��42, 225, 245 European Court of Human Rights Albert and Le Compte, Judgment of 10 February 1983, Series A, No. 58�� 152 Bakker v. Austria, Decision No. 43454/98, 13 June 2002��325 Glasenapp v. Germany, Judgment of 28 August 1986, Series A, No. 104; (1986) 9 EHRR 25��220 Klass v. Germany, Judgment of 6 September 1978, Series A, No. 28; (1979–80) 2 EHRR 214��220 Leander v. Sweden, Judgment of 26 March 1987, Series A, No. 116; (1988) 9 EHRR 433��220 Le Compte, Van Leuven and De Meyere, Judgment of 23 June 1981, Series A, No. 43�� 152 Lutz John v. Germany, Application No. 15073/03, 13 February 2007��325 Matheis v. Germany, Decision No. 73711/01, 1 February 2005��325 Matthews v. United Kingdom (App. 24833/94), Judgment of 18 February 1999: (1999) 30 EHRR 361�� 128 Obermeier, Judgment of 28 June 1990, Series A, No. 179�� 152 Pellegrin v. France (App. 28541/95), Judgment of 8 December 1999��220 Rotaru v. Romania (App. 28341/95), Judgment of 4 May 2000��220 Schweighofer and Others v. Austria, Decision Nos. 35673/97, 35674/97, 36082/97 and 37579/97, 24 August 1999��325 Tinnelly & Sons Ltd. and McElduff v. United Kingdom (App. 20390/92), Judgment of 10 July 1998; (1998) 27 EHRR 249��220 Vogt v. Germany (App. 17851/91), Judgment of 26 September 1995; (1996) 21 EHRR 205��220

list of cases citedxxxi

Wille v. Liechtenstein (App. 28396/95), Judgment of 28 October 1999; (2000) 30 EHRR 558��220 France Conseil Constitutionnel Abolition of the Death Penalty, Re: Cons. constit. 22 mai 1985, n. 188, Rec. 15�� 130 Direct Elections to the European Parliament, Re: Cons. constit. 29 et 30 décembre 1976, n. 71, Rec. 15�� 130 EU Constitutional Treaty and the French Constitution, Re the: Cons. constit. 19 novembre 2004, n. 505, Rec. 173; [2005] 1 CMLR 750�� 26, 131–132 Law authorising the approval of the Schengen Agreement, Re: Cons. constit. 25 juillet 1991, n. 294, Rec. 91��84, 130 Organic Law concerning the Application of Article 88(3) of the French Constitution, Re: Cons. constit. 20 mai 1998, n. 400, Rec. 251�� 130 Treaty of Amsterdam, Re the: Cons. constit. 31 décembre 1997, n. 394, Rec. 344�� 130 Treaty of Lisbon, Re the: Cons. constit. 20 décembre 2007, n. 560, Rec. 459�� 132 Treaty of Luxembourg, Re the : Cons. constit. 19 juin 1970, n. 39, Rec. 15��26 Treaty on European Union (Maastricht I), Re the: Cons. constit. 9 avril 1992, n. 308, Rec. 55��130–131 Treaty on European Union (Maastricht II), Re the: Cons. constit. 2 septembre 1992, n. 312, Rec. 76��130–131 Conseil d’Etat Boisdet: ce 24 septembre 1990, Rec. 251; [1991] 1 CMLR 3��88 Ministre de l’Intérieur v. Cohn-Bendit: ce 22 décembre 1978, Rec. 524; [1980] 1 CMLR 543��88 Nicolo: ce 20 octobre 1989, Rec. 190; [1990] 1 CMLR 173��88 Rothmans International France SA and Philip Morris France SA; and Arizona Tobacco Products GmbH Export KG and Philip Morris France SA: ce 28 février 1992, Rec. 78 et 81; [1993] 1 CMLR 253��88 Syndicat Géneral de Fabricants de Semoules de France: ce 1 mars 1968, Rec. 149; [1970] CMLR 395��88, 130 Italy Constitutional Court Corte cost. 24 aprile 2002, n. 135: ��307 Corte cost. 24 ottobre 2002, n. 445: ��307

xxxii

list of cases cited

Corte cost. Ordinanza No. 102/2008: ��307 Corte cost. Ordinanza No. 103/2008: ��307 Costa v. ENEL, Corte cost. 9 marzo 1964, n. 14: Giur. cost. 1964, 129�� 130 Frontini c. Ministero delle Finanze, Corte cost. 27 dicembre 1973, n. 183: Giur. cost. 1973, 2401; [1974] 2 CMLR 372��28 Provincia autonoma di Bolzano v. Presidente del Consiglio dei ministri: Corte cost. 11 luglio 1989, n. 389: Riv. dir. internaz. 1989, 404��89 SpA Fragd c. Amministrazione delle Finanze dello Stato, Corte cost. 21 aprile 1989, n. 232: Giur. cost. 1989, I, 1001��26, 130 SpA Granital c. Amministrazione delle Finanze: Corte cost. 5 giugno 1984, n. 170: Giur. cost. 1984, 1098��28, 31, 229 S.p.A. Industria Dolciaria Giampaoli v. Ufficio del Registro di Ancona: Corte cost. 8 aprile 1991, n. 168: Giur. cost. 1991, 327�� 27, 89 Zerini: Corte cost. 23 marzo 1994, n. 117: Giur. cost. 1994, 785�� 27, 89 Spain Constitutional Tribunal Trib. Const. 14 febrero 1991, STC n. 28/1991: BOE n. 64, 15 marzo 1991; REDI 1991, 172�� 165 Trib. Const. 10 julio 1992, DTC n. 1/1991: BOE n. 177, Suppl. 24 julio 1992��27, 131 Trib. Const. 31 mayo 1993, STC n. 180/1993: BOE n. 159, 5 julio 1993��27 Trib. Const. 30 noviembre 2000, STC n. 290/2000: ��307 Trib. Const. 27 febrero 2002, STC n. 53/2002: ��307 Trib. Const. 13 diciembre 2004, DTC n. 1/2004: BOE 4 enero 2005��28, 131–132 Trib. Const. 27 junio 2011, ATC n. 86/2011: ��307

TABLE OF LEGISLATION CONSTRUED European Union EEC Treaty (1957–1992) Art. 5 EEC (now Art. 4(3) TEU)��22 Art. 52 EEC (now Art. 49 TFEU)��166 Arts. 92–94 EEC (now Arts. 107–109 TFEU)�� 91 Art. 92 EEC (now Art. 107 TFEU)�� 91 Art. 95 EEC (now Art. 110 TFEU)��86–87 Art. 113 EEC (now Art. 207 TFEU)�� 136 Arts. 173–174 EEC (now Arts. 263–264 TFEU)��101 Art. 177 EEC (now Art. 267 TFEU)�� 91, 92, 95 Art. 177(3) EEC (now Art. 267(3) TFEU)��94 Art. 189(2) EEC (now Art. 288(2) TFEU)��86 Art. 215(2) EEC (now Art. 340(2) TFEU)�� 91 EC Treaty (1992–2007) Art. 8b(1) EC (now Art. 20(2)(b) TFEU)��27 Art. 10 EC (now Art. 4(3) TEU)�� 22, 173, 231–232, 306 Art. 14 EC (now Art. 26 TFEU)�� 128 Art. 49 EC (now Art. 56 TFEU)�� 166, 173 Art. 50 EC (now Art. 57 TFEU)��166 Art. 61 EC (now Art. 67 TFEU)��128, 173 Art. 68(1) EC (repealed by Lisbon Treaty)�� 128 Art. 68(3) EC (repealed by Lisbon Treaty)�� 319 Art. 90 EC (now Art. 110 TFEU)��228 Art. 90(1) EC (now Art. 110(1) TFEU)�� 227, 231 Art. 190 EC (now Art. 14(1)-(3) TEU and Art. 223 TFEU)�� 127 Art. 191 EC (now Art. 10 TEU and Art. 224 TFEU)�� 127 Art. 226 EC (now Art. 258 TFEU)��233 Art. 230 EC (now Art. 263 TFEU)�� 181, 325–326 Art. 234 EC (now Art. 267 TFEU)�� 128, 168, 175, 229–230, 232–233, 237, 267, 280, 292, 316, 318, 325 Art. 234(1)(a) EC (now Art. 267(1)(a) TFEU)�� 127 Art. 234(1)(b) EC (now Art. 267(1)(b) TFEU)�� 127 Art. 234(3) EC (now Art. 267(3) TFEU)�� 94, 128–129 Art. 249 EC (now Art. 288 TFEU)��18, 195

xxxiv

table of legislation construed

Art. 253 EC (now Art. 296 TFEU)��325 Art. 308 EC (now Art. 352 TFEU)��245 Treaty on European Union (1992–2007) Art. 6(2) TEU (now Art. 6(3) TEU)��302 Art. 6(3) TEU (now Art. 4(2) TEU)��292, 295 Art. 31(1)(e) TEU (now Art. 83 TFEU)�� 128 Art. 34(2)(b) TEU (now repealed by Lisbon Treaty)��122, 260 Art. 35(1) TEU (now repealed by Lisbon Treaty)��234 Art. 46(d) TEU (now repealed by Lisbon Treaty)�� 128 Charter of Fundamental Rights of the European Union (2000/2007) Art. 47��324–325 Art. 51�� 127 Treaty on European Union (as amended by Treaty of Lisbon) (2007) Art. 2 TEU��303 Art. 4 TEU��291–292, 303 Art. 4(2) TEU��131, 232, 250, 292–293, 296–300 Art. 4(3) TEU��13, 22–24, 173, 231, 256, 258–259, 303, 306 Art. 5(1) TEU�� 111, 292 Art. 5(2) TEU�� 292, 303 Art. 5(3) TEU��111 Art. 6(1) TEU�� 182 Art. 6(2) TEU��313 Art. 6(3) TEU��302 Art. 10 TEU�� 127 Art. 14(1)-(3) TEU�� 127 Art. 19 TEU��1, 98, 323 Art. 19(1) TEU�� 17, 169 Art. 19(3) TEU��169 Art. 31(3) TEU�� 108 Art. 48 TEU��245 Art. 48(2)-(5) TEU��320 Art. 48(7) TEU�� 108 Art. 50 TEU�� 83, 189, 200 Treaty on the Functioning of the European Union (2007) Art. 3 TFEU�� 18 Art. 4 TFEU�� 18

table of legislation construedxxxv

Art. 6 TFEU�� 18 Art. 20(2)(b) TFEU��27 Art. 26 TFEU�� 128 Arts. 34-36 TFEU�� 176 Art. 49 TFEU��166 Art. 56 TFEU�� 166, 173 Art. 57 TFEU��166 Art. 67 TFEU�� 128 Art. 81(3) TFEU�� 108 Art. 83 TFEU�� 128 Arts. 107–109 TFEU�� 91 Art. 107 TFEU�� 91 Art. 110 TFEU�� 86–87, 228 Art. 110(1) TFEU�� 227, 231 Arts. 123–126 TFEU�� 120 Art. 127(1) TFEU�� 120 Art. 130 TFEU�� 120 Art. 136 TFEU��118–120 Art. 153(2) TFEU�� 108 Art. 192(2) TFEU�� 108 Art. 207 TFEU�� 136 Art. 223 TFEU�� 127 Art. 224 TFEU�� 127 Art. 254 TFEU�� 315 Art. 256 TFEU��101 Arts. 258–260 TFEU��258 Art. 258 TFEU��233 Art. 263 TFEU��292, 325–326 Art. 267 TFEU�� 91–93, 95, 98, 125, 133, 168–170, 175, 181, 193, 229–230, 232–233, 235, 237, 257, 264, 267, 280, 282, 292, 305–306, 310–318, 320, 322–323, 325–326 Art. 267(1)(a) TFEU�� 127 Art. 267(1)(b) TFEU�� 127 Art. 267(3) TFEU��94, 96–97, 128–129, 305 Art. 281 TFEU��315, 320 Art. 288 TFEU��18, 195 Art. 296 TFEU��325 Art. 312(2) TFEU�� 108 Art. 333(2) TFEU�� 108 Art. 340(2) TFEU��91, 324 Art. 352 TFEU��245

xxxvi

table of legislation construed Treaty of Lisbon (2007) Protocols and Declarations

TEU, TFEU and EAEC, Protocol (No. 2) on the Application of the Principles of Subsidiarity and Proportionality�� 111, 297–298, 309 Art. 8�� 309 TEU, TFEU and EAEC, Protocol (No. 3) on the Statute of the Court of Justice of the European Union��315, 317 Art. 16��320 Art. 23(a)��317 Declarations Annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon Declaration No. 17 concerning primacy��17, 87–88, 297–298, 300–303 Other Treaties Act of Accession 2003: OJ 2003 L236/33 Art. 1(3)��161 Art. 2(3)��191 Art. 41(1)��191–192 Agreement between the EEC and the Hungarian People’s Republic on Trade and Commercial and Economic Cooperation: OJ 1988 L327/2�� 136 Agreement between the EEC and the People’s Republic of Poland on Trade and Commercial and Economic Cooperation: OJ 1989 L339/1��205 Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the surrender procedure between the Member States of the European Union and Iceland and Norway: OJ 2006 L292/2�� 185 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters 1968: JO 1972 L299/32��22 Convention on jurisdiction and the enforcement of judgments in civil and commercial matters – Done at Lugano on 16 September 1988, 88/592/EEC: OJ 1988 L319/9; superseded by Council Dec. 2007/712/EC: 2007 OJ L 339/1��22 Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Hungary, of the other part: OJ 1993 L347/1�� 136, 160 Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Poland, of the other part: OJ 1993 L348/2��205 Interim Agreement on trade and trade-related matters between the European Economic Community and the European Coal

table of legislation construedxxxvii

and Steel Community, of the one part, and the Republic of Hungary, of the other part: OJ 1992 L116/2�� 136 Interim Agreement on trade and trade-related matters between the European Economic Community and the European Coal and Steel Community, of the one part, and the Republic of Poland, of the other part: OJ 1992 L114/2��205 Treaty establishing a Constitution for Europe: OJ 2004 C310/1��14, 16–17, 26, 131–132, 184, 189, 296–297, 301–302, 309, 311, 326 Art. I-5 TCE��292 Art. I-6 TCE��297 Treaty of 2 February 2012 establishing the European Stability Mechanism (‘ESM Treaty’): :��118–120 Art. 8(5)��119 Directives Directive 77/388/EEC (Sixth Council) on the harmonization of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment: OJ 1977 L145/1��89, 164 Directive 79/409/EEC on the conservation of wild birds: OJ 1979 L103/1�� 176 Directive 89/662/EEC on the Labelling of Tobacco Products: OJ 1989 L359/1, as amended by Directive 92/41/EEC: OJ 1992 L158/30�� 121 Directive 91/477/EEC on control of the acquisition and possession of weapons: OJ 1991 L256/51 (as now amended by Directive 2008/ 51/EC: OJ 2008 L179/5)�� 197 Directive 93/104/EC concerning certain aspects of the organisation of working time: OJ 1993 L307/18��166, 174 Directive 1999/45/EC concerning the approximation of the laws, regulations and administrative provisions of the Member States relating to the classification, packaging and labelling of dangerous preparations: OJ 1999 L200/1 Art. 10, para. 2.3.4�� 168 Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation: OJ 2000 L303/16��114 Directive 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 Directive 2002/58/EC: OJ 2006 L105/54�� 125, 129 Directive 2009/147/EC on the conservation of wild birds: OJ 2010 L20/7�� 176

xxxviii

table of legislation construed Regulations

Regulation 404/93/EC on the common system for banana imports: OJ 1993 L47/1�� 105 Regulation 338/97/EC (Council) on the protection of species of wild fauna and flora by regulating trade therein: OJ 1997 L61/1�� 176 Regulation 44/2001/EC (Council) on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“Brussels I”), as amended: OJ 2001 L12/1 (corrigendum, OJ 2001 L307/28)��22, 252, 255 Art. 41��255 Regulation 1972/2003/EC: OJ 2003 L293/3, as amended by Regulation 230/2004/EC and Regulation 735/2004/EC�� 192 Regulation 60/2004/EC: OJ 2004 L9/8�� 192 Regulation 230/2004/EC: OJ 2004 L39/13�� 192 Regulation 735/2004: OJ 2004 L114/13�� 192 Regulation 865/2006/EC (Commission) laying down detailed rules concerning the implementation of Council Regulation 338/97/EC on the protection of species of wild fauna and flora by regulating trade therein: OJ 2006 L166/1�� 176–177 Art. 54�� 176 Arts. 64–68�� 176 Regulation 407/2010/EU: OJ 2010 L118/1�� 115 Other EU/EEC/EC Instruments Act concerning the election of the representatives of the Assembly by direct universal suffrage: OJ 1976 L278/5�� 127 Art. 7(2)�� 127 Art. 12(2)�� 127 Commission Decision 595/88, OJ 1988 L327/1; MK 1989/4, 54�� 136 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States: OJ 2002 L190/1�� 122–124, 185, 198, 260–264 Court of Justice, Rules of Procedure of the Court of Justice: OJ 2010 C177/01��315, 318, 320 Art. 62a��317 Art. 104a��317 Art. 104b��317 Art. 104b(1)�� 318 Court of Justice, former Rules of Procedure of the Court of Justice (as subsequently and variously amended): OJ 1991 L176/7 Art. 109a (repealed by Lisbon Treaty)�� 319

table of legislation construedxxxix

Art. 109a(3) (repealed by Lisbon Treaty)�� 319 Declaration of 5 April 1977 of the European Parliament, the Council and the Commission to respect fundamental rights in the exercise of their powers (OJ 1977 C103/1), confirmed by the European Council meeting of 7 and 8 April 1978 (Bull. EEC, Supp. 3/78, 5)��101 Draft Directive on the Labelling of Tobacco Products: Initial draft: OJ 1988 C48/8; amended draft: OJ 1989 C62/12. Final version Dir. 89/ 662/EEC: OJ 1989 L359/1, as amended by Dir. 92/41/EEC: OJ 1992 L158/30�� 121 EC-Hungary Association Council Dec. 2/96 adopting the rules necessary for the implementation of Article 62 (1) (i), (1) (ii) and (2) of the Europe Agreement: OJ 1996 L295/29�� 199 EC-Hungary Association Council Dec. 1/2002 repealing and replacing Association Council Dec. 2/96 adopting the rules necessary for the implementation of Article 62(1)(i), (1)(ii) and (2) of the Europe Agreement: OJ 2002 L145/16�� 199 European Council Decision 2011/199/EU amending Art. 136 TFEU with regard to a stability mechanism for Member States whose currency is the euro: OJ 2011 L91/1, Art. 1��118 Germany 1949 Constitution (as amended) Preamble�� 77, 107, 136, 156 Arts. 1–19�� 69, 75 Art. 1��71 Art. 1(1)��59, 75, 107 Art. 1(2)��75 Art. 1(3)�� 68, 70, 75 Art. 2(1)��59 Art. 3(1)��73 Art. 5(1)��76 Art. 5(3)��76 Art. 8��76 Art. 9��76 Art. 10��76 Art. 14��76 Art. 14(1)�� 120 Art. 16a��76 Art. 16(2)��122–124 Art. 19(1)��75

xl

table of legislation construed

Art. 19(2)��75 Art. 19(4)�� 122 Art. 20��71, 81, 102 Art. 20(1)�� 107, 120, 126 Art. 20(2)�� 72, 74, 107, 120, 126 Art. 20(3)�� 68, 72 Art. 21�� 74 Art. 21(2)�� 126 Art. 23��77, 80–82, 106, 156 Art. 23(1)��105, 107–111, 113 Art. 24�� 77, 79-80, 85 Art. 24(1)�� 77–80, 85, 87–88, 94, 100 Art. 25�� 69 Art. 28�� 74 Art. 29�� 74 Art. 38�� 75, 81, 102, 107, 116, 120 Art. 38(1)�� 106 Art. 45��82 Art. 59(2)��78, 85–86, 94 Art. 63��75 Art. 72(2)�� 69 Art. 79�� 81, 129 Art. 79(1)��71 Art. 79(2)��71, 81 Art. 79(3)��65, 71, 75, 81, 83, 86, 99, 107-108, 110–112, 119–120, 126, 177, 210, 223, 250 Art. 88�� 120 Art. 93��82, 112 Art. 93(1)�� 128 Art. 93(1)(2)��68 Art. 93(1)(2a)�� 69 Art. 93(1)(4a)�� 69 Art. 93(1)(4b)�� 69 Art. 97��72 Art. 100�� 112 Art. 100(1)��69, 98, 128 Art. 100(2)�� 69 Art. 101�� 72, 324 Art. 101(1)��69, 93–96 Art. 101(2)�� 96 Art. 103��72 Art. 103(2)��73

table of legislation construedxli

Art. 118�� 74 Art. 118a�� 74 Art. 146��84 Legislation Act on Limited Liability Companies: RGBl. 1892, I, 477, last amended by Gesetz vom 31 Juli 2009: BGBl. 2009, I, 2509��51 Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz, BVerfGG or ‘CCA’), 12 März 1951, 1951 BGBl., I, 243; as republished on 11 August 1993, 1993 BGBl., I, 1474��68 s. 13(2)�� 126 s. 13(6)��68 s. 13(8a)�� 69 s. 13(11)�� 69 s. 13(12)�� 69 ss. 80 ff��98 ss. 80–82�� 69 ss. 83–84�� 69 s. 90(2)��70 s. 93(1)��70 s. 93a(2)��70 Ratification Act for the ECSC Treaty: BGBl. 1952, II, 448��78 Ratification Act for the ECHR: BGBl. 1952, II, 686, and reissued: BGBl. 2003, II, 1054��76 Ratification Act for the EEC and EAEC Treaties: BGBl. 1957, II, 753��78 Act on Implementation of the Sixth VAT Directive of the EEC (Directive 77/388/EEC): BGBl. 1979, I, 1953��89 Ratification Act for the SEA: BGBl. 1986, II, 1102��78 Ratification Act for the Maastricht Treaty: BGBl. 1992, IIS, 1251�� 102 Act on Implementation of the European Arrest Warrant Act: BGBl. 2004, I, 1748��122–124 Act to Amend the Constitution (consequent upon Lisbon Treaty): BGBl. 2008, I, 1926��82 Ratification Act for the Lisbon Treaty: BGBl. 2008, II, 1038��82 Act for the Assumption of Guarantees for the Maintenance of the Solvency of the Hellenic Republic Necessary for the Financial Stability of the Monetary Union: BGBl. 2010, I, 537�� 115 Act on the Assumption of Guarantees in the Framework of a European Stabilisation Mechanism: BGBl. 2010, I, 627��116 Act Amending the European Stabilisation Mechanism: BGBl. 2010, I, 1992��116

xlii

table of legislation construed Other Instruments

Act (draft) on the Extension and Strengthening of the Rights of the Bundestag and Bundesrat in EU Matters: BT-Drucksache 16/8489��82 Draft bill of an Act on the Treaty of 2 February 2012 establishing the European Stability Mechanism: BT-Drucksache 17/9045; 17/10126; and 17/10172��118 Draft bill of an Act for the Financial Participation in the Euro Stability Mechanism, as amended by the Recommendation for a Resolution of the parliamentary budget committee: BT-Drucksache 17/9048; and 17/10126��119 Draft bill of an Act on the European Council Decision of 25 March 2011 to Amend Article 136 of the Treaty on the Functioning of the European Union with regard to a Stability Mechanism for Member States whose Currency is the Euro: BT-Drucksache 17/9047��119 Draft bill of an Act on the Treaty of 2 March 2012 on Stability, Co-ordination and Governance in the Economic and Monetary Union, as amended to include the proposed amendments approved by the parliamentary budget committee on 27 June 2012: BT-Drucksache 17/9046; 17/10125; and 17/10171��119 Hungary 1990 Constitution (revising and consolidating 1949 Constitution) Preamble�� 149 Art. 2��58 Art. 2(1)��146, 149, 153–155, 166, 173, 180, 186–188, 202, 278 Art. 2(2)��148, 153–155, 173, 180, 186–188, 202, 278 Art. 2/A��156, 161, 163–164, 167, 172, 179–181, 185, 187–188, 190, 201–202 Art. 2/A(1)�� 158, 173, 179, 187 Art. 2/A(2)�� 157 Art. 6(4)�� 182, 188, 198 Art. 7��184–185 Art. 7(1)�� 163 Art. 8(1)�� 150 Art. 8(2)��150–151, 182 Art. 24(2)�� 199 Art. 24(3)�� 137 Arts. 28/B-28/D�� 157 Art. 28/B�� 149 Art. 28/C(2)�� 149, 153 Art. 28/C(4)�� 149, 153

table of legislation construedxliii

Art. 28/C(5)�� 149 Art. 30/A(1)(b)�� 157 Art. 30/A(2)�� 157 Art. 32/A��61, 138–139, 191 Art. 32/A(2)�� 183, 190 Art. 32/A(6)�� 139 Arts. 54–70/K�� 151 Art. 54(1)��59 Art. 57(4)�� 185 Art. 57(5)�� 171 Art. 59��59 Art. 70/A(1)�� 171 Art. 79�� 157 2011 Constitution Art. B �� 58, 202 Art. B(1)�� 146 Art. B(2)�� 149 Art. B(3)�� 149 Art. E�� 158, 201–202 Art. E(1)�� 182, 198 Art. E(2)��158, 172, 180, 190 Art. E(3)��158, 172, 180, 190 Art. E(4)�� 158 Art. N��139–140 Art. R(1)�� 145 Art. R(3)�� 140, 145 Art. S(2)��199, 278 Arts. I-XXXI�� 151 Art. XV(1)�� 171 Art. XXVIII(4)�� 185, 186 Art. XXVIII(7)�� 171 Art. I�� 150 Art. I(3)�� 151, 182, 193 Art. II��59 Art. 6(2)�� 143 Art. 6(4)�� 143 Art. 24�� 61, 139 Art. 24(1)�� 139 Art. 24(2)�� 143 Art. 24(2)(a)�� 143 Art. 24(2)(b)�� 143

xliv

table of legislation construed

Art. 24(2)(b)-(e)�� 140 Art. 24(2)(c) and (d)��144, 172 Art. 24(2)(e)�� 143 Art. 24(2)(f)��143–144 Art. 24(2)(g)�� 144 Art. 24(3)(a)�� 183 Art. 24(5)�� 139 Art. 37(4)�� 140 Legislation Act on the Commercial Code, 1875: XXXVII.t.cz.: Corpus Juris Hungarici. Magyar törvénytár 1875–1876, 120–207��50 Act on Unfair Competition, 1923: V.t.-c.: Corpus Juris Hungarici. Magyar törvénytár 1923, 20–37��51 Act on Limited Liability Companies, 1930: V.t.-c.: Corpus Juris Hungarici. Magyar törvénytár 1930, 118–172��50 Act IV of 1959 on the Civil Code: MK 1959/82��51 Act I of 1984 on the Constitutional Council: MK 1984/18�� 138 Act XVII of 1989 on Referendums and Popular Initiatives: MK 1989/39�� 157 Act XXXI of 1989 on the Amendment of the Constitution: MK 1989/74�� 58, 135 Act XXXII of 1989 on the Constitutional Court: MK 1989/77��61, 139, 141–142, 144, 159 Preamble�� 139 s. 1�� 141–142, 164, 169 s. 1(a)��141, 184, 187, 190, 202 s. 1(b)��141–142, 159, 179, 186 s. 1(c)��141 s. 1(d)�� 144 s. 1(e)��141–142 s. 21��141 s. 21(2)��141 s. 21(3)(a)-(f)��141 s. 21(4)�� 144 ss. 33–51��141 ss. 33–37��141 s. 36�� 190 s. 36(1)�� 142, 185 s. 37��141 ss. 37–44��141 s. 38(1)��141, 144 s. 38(2)��141, 144

table of legislation construedxlv

ss. 40–43�� 144 s. 43(4)�� 199 s. 44��141 s. 47�� 142 s. 48��144, 172 s. 48(1)�� 144 s. 49�� 142 Act XXIX of 1990 on the Amendment of the Constitution: MK 1990/46�� 58, 135 Act XL of 1990 on the Amendment of the Constitution: MK 1990/59�� 58, 135 Act XXXIV of 1991 on Gambling: MK 1991/91��173 Act XXXI of 1993 on the promulgation of the ECHR: MK 1993/41��60, 152 Act I of 1994 on the promulgation of the Europe Agreement between the Republic of Hungary and the EC and its Member States: MK 1994/1�� 160 Act LVIII of 1997 on Business Advertising: MK 1997/59��173 Act C of 1997 on Electoral Procedure: MK 1997/96�� 157 Act III of 1998 on Referendums and Popular Initiatives: MK 1998/13�� 157 Act XXV of 2000 on Chemical Safety: MK 2000/38 s. 17(2)(a)�� 168 Act X of 2002 Introduced on the Basis of EA Art. 62(3) to Terminate the Effectiveness of Association Council Dec. 1/96 and to Bring into Force Association Council Dec. 1/2002: MK 2002/34/I s. 4�� 199 Act LXI of 2002 on the Amendment to the Constitution: MK 2002/161��156, 181 s. 2�� 156 s. 10�� 157 s. 11(3)�� 157 Act XXIV of 2004 on Firearms and Ammunition: MK 2004/56�� 197 s. 23�� 197 Act XXX of 2004 on the promulgation of the 2003 Accession Treaty: MK 2004/60��157, 192, 197 s. 2 �� 197 Annex I�� 192 Act LIX of 2006 on Supertaxes and Contributions for the Improvement of the Balance of Public Finances: MK 2006/86��163–164 Act CLXVIII of 2007 on the promulgation of the 2007 Lisbon Treaty: MK 2007/182��186, 198 Act CLI of 2011 on the Constitutional Court: MK 2011/136�� 139, 142–145, 314 s. 23��143, 190, 202 s. 23(4)�� 185

xlvi

table of legislation construed

ss. 23–46�� 143 s. 24(2)�� 143 s. 25�� 143 ss. 26–31�� 144 s. 26(1)�� 144 s. 27(1)�� 144 s. 28�� 145 s. 29�� 145 s. 32�� 143 s. 32(2)�� 144 s. 38(1)�� 144 Other Instruments Minister of the Interior Decree 33/2002 (XII.23) BM r.�� 157 Poland 1952 Constitution (as amended) Art. 1�� 57, 212–213, 216, 218, 220, 235–236 Art. 3��54 Art. 6�� 217 Art. 32��205 Art. 33a��60, 206 Art. 67(2)�� 219 Art. 82(1)�� 217 Art. 83�� 217 Art. 84�� 217 Art. 85�� 217 Art. 87(1)�� 217–218 Art. 87(2)�� 217 1992 Little or Small Constitution Constitutional Act of 17 October 1992 on the Mutual Relations between the Legislative and Executive Institutions of the Republic of Poland and on Local Government: Dz. U. 1992, No. 84, Item 426�� 206, 214–215 Art. 1��214–215 1997 Constitution Preamble��210–211, 226, 239–240, 250 Art. 1�� 240 Art. 2�� 58, 212, 240

table of legislation construedxlvii

Art. 3�� 240 Art. 4�� 216, 240 Art. 4(2)��224 Art. 5�� 240 Art. 6�� 240 Art. 8��246, 265–266, 278, 281 Art. 8(1)�� 210, 224, 240–242, 231, 266 Art. 8(2)�� 219 Art. 9�� 224, 230, 237, 260, 262–263 Art. 10��214, 240 Art. 11�� 216 Art. 20�� 240 Arts. 30–86�� 218 Art. 30��59, 210 Art. 31(3)�� 218, 260 Art. 32(1)��219, 255 Art. 32(2)�� 219 Art. 42(2)��263 Art. 45�� 210 Art. 45(1)�� 234–236, 255 Art. 51��59 Art. 55�� 260–262 Art. 55(1)�� 260 Art. 55(4)��263 Art. 56�� 209 Arts. 64–76�� 209 Art. 65(4)�� 209 Art. 65(5)�� 209 Art. 66�� 209 Art. 69�� 209 Art. 71�� 209 Art. 74�� 209 Art. 75�� 209 Art. 76�� 209 Arts. 77–80�� 219 Art. 77(2)��236 Art. 78��237 Art. 79��253–254 Art. 79(1)��209–210, 235, 239, 255–259 Art. 79(2)�� 209 Art. 81�� 209 Art. 87��253 Art. 87(1)�� 241

xlviii

table of legislation construed

Art. 89(1)(3)�� 221 Art. 90�� 221, 223–224, 241, 246–248, 250, 252, 265 Art. 90(1)��211, 221, 223, 225, 227, 233, 238–239, 241, 244–245, 249–250 Art. 90(2)�� 221 Art. 90(3)��217, 221–222, 241 Art. 90(4)��222 Art. 91��221, 224, 227–228, 231, 237, 241, 265 Art. 91(1)��228 Art. 91(2)�� 227–228, 230, 232, 241, 245 Art. 91(3)��227, 233, 238, 244–245, 253 Art. 104(1)�� 216 Art. 104(2)��250 Art. 108�� 216 Art. 118(2)�� 217 Art. 122(3)�� 208 Art. 125��216, 222 Art. 125(4)��222 Art. 126(1)��250 Art. 133�� 246–247 Art. 133(2)�� 209 Art. 170�� 217 Art. 176(1)��237 Art. 178(1)��219, 230 Art. 188��207–208, 231, 233, 238, 243, 253 Art. 188(1)�� 207–208, 233, 253, 255–256, 259 Art. 188(2)��208, 255–256 Art. 188(3)��253, 255–256, 259 Art. 188(5)��209, 256 Art. 190(1)��233 Art. 190(3)��259, 261–263, 266 Art. 191(1)�� 208–209 Art. 191(6)�� 209 Art. 193��208–209, 254 Art. 195(1)��230 Art. 233(1)�� 261 Art. 235��226, 241 Art. 235(4)��225 Art. 239�� 61 Legislation Act against Unfair Competition: Dz. U. 1930, No. 56, Item 467��52 Act on the Commercial Code: Dz. U. 1934, No. 57, Item 502 (as variously amended)��51

table of legislation construedxlix

Act on the Code of Obligations: Dz. U. 1934, No. 57, Item 503��51 Act of 29 March 1963 on Aliens (as first amended and republished in 1992): Dz. U. 1992, No. 7, Item 30 and Dz. U. 1992, No. 25, Item 225�� 218 Act on the Civil Code: Dz. U. 1964, No. 16, Item 93�� 50, 52 Act of 29 April 1985 on the Constitutional Tribunal: Dz. U. 1985, No. 22, Item 98��60, 207 Act of 29 December 1989 on the Amendment of the Constitution of the Polish People’s Republic: Dz. U. 1989, No. 75, Item 444��57 Act of 4 July 1992 on the Ratification of the Europe Agreement: Dz. U. 1992, No. 60, Item 302 (Entry into Force: Dz. U. 1994, No. 11, Item 38)��205 Act of 2 October 1992 on the Ratification of the ECHR: Dz. U. 1992, No. 85, Item 427��59, 219 Act of 6 June 1997 on the Code of Criminal Procedure: Dz. U. 1997, No. 89, Item 555 Art. 607t�� 260 Art. 607t(1)��263 Art. 607p(1)(5)�� 263–264 Act of 1 August 1997 on the Constitutional Tribunal: Dz. U. 1997, No. 102, Item 643�� 61, 207–210 s. 2�� 207–208 s. 2(1)�� 207–208 s. 2(2)�� 208–209 s. 2(4)�� 209 s. 3�� 209 s. 42�� 208 s. 71(2)�� 261 Act of 14 March 2003 on Nationwide Referenda, Dz. U. 2003, No. 57, Item 507 and Dz. U. 2003, No. 85, Item 782��222 Act of 23 January 2004 on Excise Duty: Dz. U. 2004, No. 29, Item 257��227–228 s. 80��227–228 Act of 8 September 2006 on the Amendment of the Polish Constitution: Dz. U. 2006, No. 200, Item 1471��262 Act of 1 April 2008 on the Ratification of the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007: Dz. U. 2008, No. 62, Item 388��245 Other Instruments 2003 Accession Treaty: Dz. U. 2004, No. 90, Item 864��222 2007 Lisbon Treaty: Dz. U. 2009, No. 203, Item 1569��245 Parliament Resolution of 31 July 1985 on the Special Mode of Proceedings before the Constitutional Tribunal: Dz. U. 1985, No. 39, Item 184��60, 207

l

table of legislation construed Other Jurisdictions Austria

Constitution Art. 42�� 66 Art. 44�� 66 Art. 44(3)�� 66 Art. 50�� 66 Art. 83��324 Art. 83(2)��86 Art. 133(4)��36 Art. 147(2)��37 Legislation (constitutional amendment) Act incorporating ECHR into the Constitution: Verfassungsnovelle, BGBl. 1964/59��76 Belgium Constitution Art. 13��324 Council of Europe Convention on the Protection of Human Rights and Fundamental Freedoms, signed in Rome, 4 November 1950: CETS No. 5��70 Art. 5�� 218 Art. 5(4)�� 218 Art. 6��324–325 Art. 13��324 Arts. 19–51��70 Art. 59(2), as amended��313 Sixth Protocol�� 152 European Convention on Extradition, CETS No. 24: opened for signature 13 December 1957, entered into force 18 April 1960�� 123

table of legislation construedli Czech Republic

Constitution Art. 1(1)�� 132 Art. 9(2)�� 132 Art. 10(1)�� 132 Estonia Constitution Art. 24��324 France Constitution Art. 61��7 Art. 61-1��7 Legislation (constitutional amendment) Loi constitutionelle nº 2008–724 du 23 juillet 2008 de modernisation des institutions de la Ve République: JORF du 24 juillet 2008, 11890��7 Greece Constitution Art. 8��324 Art. 28��272 Italy Constitution Art. 24��26 Art. 25(1)��324 Luxembourg Constitution Art. 13��324

lii

table of legislation construed Netherlands

Constitution Art. 17��324 Portugal Constitution Art. 7��272 Art. 8��272 Art. 32(9)��324 Slovakia Constitution Art. 48��324 Spain Constitution Art. 1(2)��27 Art. 10��27 Art. 24��324 Art. 24(1)��27 Art. 93�� 28, 272 Art. 96(1)��272 Sweden Constitution Art. 17�� 294 United Nations International Covenant on Civil and Political Rights 1966�� 218 Art. 2(3)�� 218 Art. 9(3)�� 218

ABBREVIATIONS AB Alkotmánybíróság (Hungarian Constitutional Court) ABGB Allgemeines Bürgerliches Gesetzbuch (Austria) ABH Alkotmánybíróság Határozatai (Decisions of the HCC) ABK Alkotmánybíróság Közlöny (HCC Gazette) AG Advocate General AIJC Annuaire Internationale de Justice Constitutionnelle AJCL American Journal of Comparative Law AJIL American Journal of International Law Am. Jo. Leg. Hist. American Journal of Legal History AnwBl. Anwaltsblatt AöR Archiv des öffentlichen Rechts Art./Arts. Article/Articles ATC Auto del Tribunal Constitucional (Order of the CT) (Spain) AVR Archiv des Völkerrechts BayVBL Bayerische Verwaltungsblätter BFH Bundesfinanzhof BFHE Entscheidungen des Bundesfinanzhofs BGB Bürgerliches Gesetzbuch BGBl. Bundesgesetzblatt BGHZ Entscheidungen des Bundesgerichtshofs in Zivilsachen BOE Boletín Oficial del Estado (Spain) Brit. J. Pol. Sci. British Journal of Political Science BT-Drucksache Bundestag Drucksache (German Bundestag publication) Bull. EC (Supp.) Bulletin of the European Community/Communities (Supplement) Bull. EEC (Supp.) Bulletin of the European Economic Community (Supplement) Bull. EU (Supp.) Bulletin of the European Union (Supplement) BVerfG Bundesverfassungsgericht BVerfGE Entscheidungen des Bundesverfassungsgerichts BVerfGG Bundesverfassungsgerichtsgesetz C Official Journal of the EEC/EC/EU, Series “C” CA Cour d’arbitrage (Belgium) Can. Bar Rev. Canadian Bar Review CDE Cahiers de droit européen CE Conseil d’Etat CEECs Central and Eastern European countries

liv

abbreviations

CETS Council of Europe Treaty Series CFI Court of First Instance (now the General Court) CFSP Common Foreign and Security Policy CJEU Court of Justice of the European Union CMEA Council for Mutual Economic Assistance CMLR Common Market Law Reports CML Rev. Common Market Law Review Col. Jo. Eur. L Columbia Journal of European Law Col. L. Rev. Columbia Law Review COM Communication of the European Commission to the Council and other institutions COMECON Council for Mutual Economic Assistance Con. constit. Conseil constitutionnel (France) Corte cost. Corte costituzionale (Italy) CT Constitutional Tribunal CYELS Cambridge Yearbook of European Legal Studies Dec. Decision Dir. Directive Dir. com. Diritto comunitario e degli scambi internazionali scambi internaz. DÖV Die Öffentliche Verwaltung DPC/PCL Droit polonais contemporain/Polish Contemporary Law DTC Declaración del Tribunal Constitucional (Opinion of the CT) (Spain) DVBl. Deutsches Verwaltungsblatt Dz. U. Dziennik Ustaw Rzeczypospolitej Polskiej (Journal of Laws of the Republic of Poland) EA Europe Agreement EAEC European Atomic Energy Community EAW European Arrest Warrant EBL Rev. European Business Law Review EC European Community, European Communities ECHR European Convention on Human Rights ECJ European Court of Justice ECR European Court Reports ECSC European Coal and Steel Community ECtHR European Court of Human Rights EEA European Economic Area EEC European Economic Community EECR East European Constitutional Review EEHRR East European Human Rights Review EFTA European Free Trade Association

abbreviationslv

EHRLR European Human Rights Law Review EHRR European Human Rights Reports EJIL European Journal of International Law ELJ European Law Journal EL Rev. European Law Review Emory LJ Emory Law Journal EP European Parliament EPL European Public Law EU European Union EuConst European Constitutional Law Review EuGRZ Europäischen Grundrechte Zeitschrift EuR Europarecht EuZW Europäische Zeitschrift für Wirtschaftsrecht FAZ Frankfurter Allgemeine Zeitung FCC Federal Constitutional Court (Germany) FS Festschrift Ga. Jo. Intl. Georgia Journal of International and Comparative Law & Comp. Law GC General Court (formerly the Court of First Instance) Ger LJ German Law Journal Giur. cost. Giurisprudenza costituzionale Giur. it. Giurisprudenza italiana GYIL German Yearbook of International Law HCC Hungarian Constitutional Court HL Paper House of Lords Paper HRJ Human Rights Journal HRLJ Human Rights Law Journal HYIL The Hague Yearbook of International Law Harvard Intl. LJ Harvard International Law Journal Harvard L. Rev. Harvard Law Review ICLQ International and Comparative Law Quarterly ICON International Journal of Constitutional Law Intl Rev. L & Econ. International Review of Law and Economics IRMAE Ius Romanum Medii Aevi JBl. Juristische Blätter (Austria) JCMS Journal of Common Market Studies JEI/RIE Journal of European Integration – Revue d’intégration européenne JHA Justice and Home Affairs JO Journal Officiel des Communautés européennes Jo. Euro. Journal of European Public Policy Public Policy

lvi

abbreviations

JORF Journal Officiel de la République française J. Pol. The Journal of Politics JZ Juristen Zeitung King’s LJ King’s Law Journal L Official Journal of the EEC/EC/EU, Series “L” LIEI Legal Issues of European/Economic Integration LQR Law Quarterly Review Miskloc Jo. Intl. L Miskolc Journal of International Law MJ Maastricht Journal of European and Comparative Law MK Magyar Közlöny (Hungarian [Official] Gazette) MLR Modern Law Review NILQ Northern Ireland Legal Quarterly NJW Neue Juristische Wochenschrift NPD Nationaldemokratische Partei Deutschlands (National Democratic Party of Germany) NVwZ Neue Zeitschrift für Verwaltungsrecht NZA Neue Zeitschrift für Arbeitsrecht (Germany) OER Osteuropa-Recht OJ Official Journal of the EEC/EC/EU ÖJZ Österreichische Juristen-Zeitung OJLS Oxford Journal of Legal Studies OSNKW Orzecznictwo Sądu Najwyższego Izba Karna i Izba Wojskowa (Decisions of the Supreme Court, Criminal and Military Chamber) (Poland) OTK Orzeczenia Trybunału Konstytucyjnego (Decisions of the CT) (Poland) OTK ZU Orzecznictwo Trybunału Konstytucyjnego Zbiór Urzędowy (Decisions of the CT – Official Gazette) (Poland) ÖZöRV Österreichische Zeitschrift für öffentliches Recht und Völkerrecht Quad. cost. Quaderni costituzionali para./paras. paragraph/paragraphs PCT Polish Constitutional Tribunal PER Parliaments, Estates, Representations PiP Państwo i Prawo PL Public Law Pl. ÚS Plénum Ústavního soudu (Plenum of the Czech Constitutional Court) Pol. YBIL Polish Yearbook of International Law PT ÁJK Pécs Tudományegyetem Állam-és Jogtudomány Kar RabelsZ Rabels Zeitschrift für ausländisches und internationales Privatrecht

abbreviationslvii

RBDI Revue belge de droit international RCG Revista de las Cortes Generales RDCE Revista de Derecho Comunitario Europeo RDH Revue des droits de l’homme Rdn. Randnummer (Margin number) RDP Revue du droit public et de la science politique en France et à l’étranger Rec. (CE) Recueil des décisions du Conseil d’Etat Rec. (Cons. Recueil des décisions du Conseil constitutionnel constit.) REDC Revista Española de Derecho Comunitario Reg. Regulation RFDA Revue française de droit administratif RFDC Revue française de droit constitutionnel RGBl. Reichsgesetzblatt RGDIP Revue général de droit international public RIDC Revue internationale de droit comparé Riv. dir. inter. Rivista di diritto internazionale privato e processuale priv. proc. RIW Recht der Internationalen Wirtschaft Rn Randnummer (Margin number) RTDE Revue trimestrielle de droit européen RUDH Revue universelle des droits de l’homme s./ss. section/sections (to statutes) SEA Single European Act Stan. J Intl. L Stanford Journal of International Law STC Sentencia del Tribunal Constitucional (Decision of the CT) (Spain) TBP Tijdschrift voor Bestuurswetenschappen en Publiekrecht (Belgium) TCE Treaty on a Constitution for Europe TEU Treaty on European Union Texas LR Texas Law Review TFEU Treaty on the Functioning of the European Union Toronto LJ Toronto Law Journal U. Chi. L. Rev. University of Chicago Law Review U. Pa. L. Rev. University of Pennsylvania Law Review U. Rich. L Rev. University of Richmond Law Review Utrecht L Rev. Utrecht Law Review Va. J. Intl. L. Virginia Journal of International Law Va. L Rev. Virginia Law Review Vanderbilt Vanderbilt Journal of Transnational Law J Transnatl L

lviii

abbreviations

VfGH Verfassungsgerichtshof (Constitutional Court) (Austria) VfSlg. Sammlung der Erkenntnisse und Beschlüsse des Verfassungsgerichtshofes (Collection of the Decisions of the Federal Constitutional Court) (Austria) Vienna J Intl. Vienna Journal of International Constitutional Law Const. L WiRO Wirtschaft und Recht in Osteuropa Yale Jo. Intl. L Yale Journal of International Law Yale LJ Yale Law Journal YBEL Yearbook of European Law ZaöRV Zeitschrift für ausländisches öffentliches Recht und Völkerrecht ZfRV Zeitschrift für Rechtsvergleichung, Internationales Privatrecht und Europarecht ZÖR Zeitschrift für Öffentliches Recht ZSE Zeitschrift für Staats- und Europawissenschaften Z Vgl. RW Zeitschrift für Vergleichende Rechtswissenschaft

INTRODUCTION This study seeks to examine the extent to which the approach of the German constitutional judiciary to EU law has influenced its counterparts in Hungary and Poland. The purpose of this Introduction, then, is to furnish a preliminary outline of the main contours of the work, its aims, purpose, method of approach and framework. In order to achieve this, it will be necessary to examine the objectives (below point A) and methodology of the research (below point B), followed by the structure (below point C). A. Objectives 0f Research 1. Introducing the Main Objective The main objective of this book is to analyse the attitude of the Hungarian Constitutional Court and the Polish Constitutional Tribunal towards EU law, with particular concern to the influence on their decision-making in this field of the German Federal Constitutional Court’s own approach to the Union’s constitutional principles, as created by the European Court of Justice (‘ECJ’).1 This research consequently centres on the perennial problem faced by national constitutional courts when dealing with EU law,2 viz., the consideration of the extent to which they can give effect to such law while retaining the sacrosanct nature of the domestic Constitution, i.e., how to have their EU cake and eat it? This problem dates from the time, in the first half of the 1960s, when the ECJ3 commenced the process of constitutionalisation of the then three Treaties, turning them (through a series of cases) into the constitutional charter of the then Communities.4 In this change, national constitutional courts in particular faced

1 Even though the Lisbon Treaty changed the Court’s official name from the ‘Court of Justice of the European Communities’ to the ‘Court of Justice,’ in English it is still most common to refer to this Court as the ‘European Court of Justice’ or ‘ECJ’ which custom will continue throughout this work. Under Art. 19 TEU, the collective term ‘Court of Justice of the European Union’ or ‘CJEU’ now officially designates the Court of Justice/ECJ, the General Court (formerly the Court of First Instance), and its specialised courts. 2 For a recent and broad analysis of this problem, see generally, G. Martinico & O. Pollicino, The Interaction between Europe’s Legal Systems: Judicial Dialogue and the Creation of Supranational Law, Edward Elgar, Cheltenham and Northampton (MA) (2012). 3 For a collection of analyses of the ECJ’s work, see K. Alter, The European Court’s Political Power: Selected Essays, OUP, Oxford (2009). 4 Case 294/83 Parti écologiste Les Verts v. European Parliament [1986] ECR 1339, at para. 23; Opinion 1/91 Re Draft Treaty on a European Economic Area [1991] ECR I-6079, at paras. 20–21; and Joined Cases

2

introduction

almost insurmountable difficulties in accommodating the ECJ’s demands of recognition of the primacy and direct effect of EU law with the demands of the uniqueness and supremacy of their own constitutions. Such difficulties have not been swept away: these courts are still left with the unenviable task of balancing, on the one hand, the protection of domestic constitutional principles and values which they are sworn to defend and which they regard as so vital to state sovereignty with, on the other hand, the requirements of EU law as elucidated by the ECJ. The experience of constitutional courts in ‘old’ EU Member States in Western Europe has been mirrored in those of the ‘new’ Member States of Central and Eastern Europe (referred to collectively as the Central and Eastern European countries or ‘CEECs’5). These countries variously joined the Union in 2004 and 2007 and their constitutional judiciary remain mindful of protecting the gains made, since the collapse of Communist rule, from unnecessary encroachments from EU law and ECJ case-law.6 It is against this background that the present book examines the case-law of two Central European constitutional courts—viz., of Hungary and Poland—which have shed various amounts of light and shadow on their particular approaches to EU law, refracting the light already cast by the German Federal Constitutional Court in its own decision-making on European integration.7 In order to proceed, it is apposite at this time to indicate the reasons for the present author’s choice of courts to be examined before looking at the methodology and structure of the work. 2. Why a Study of Two Central European Judiciaries and their Responses to EU Law? Until the late 1980s, the relations between the European Union and the countries of Central Europe were blighted by the pressures of the Cold War and the mutually antagonistic economic, political and military goals of the organisations on each side of the Iron Curtain. Only with the advent of a new era of understanding

C-402/05 P and C-415/05 P Kadi v. Council and Commission [2008] ECR I-6351, at para. 81. For an analysis of the constitutionalisation of the Treaties, see A. Stone Sweet, The Judicial Construction of Europe, OUP, Oxford (2004), at 50–96. 5 The CEECs who joined in 2004 were: Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia, plus the Mediterranean island States of Cyprus and Malta. The 2007 accession comprised Bulgaria and Romania. Croatia is set to join in 2013. The area of Central Europe will be used by the author to refer collectively to the countries of Croatia, the Czech Republic, Hungary, Poland, Slovakia and Slovenia while mindful that Austria might also be included. 6 See the various recent contributions in A. Łazowski (ed.) The Application of EU Law in the New Member States – Brave New World, TMC Asser Press, The Hague (2010); and O. Pollicino, “The New Relationship between National and the European Courts after the Enlargement of Europe: Towards a Unitary Theory of Jurisprudential Supranational Law?” (2010) 29 YBEL 65-11. 7 W. Sadurski, “Solange, chapter 3: Constitutional Courts in Central Europe – Democracy – European Union” (2008) 14 ELJ 1.

introduction3 and openness was it possible for the states of Central Europe to take their proper place in the processes of European integration.8 The countries which form the focus of this study—Hungary and Poland—share several important features that make them apt for comparative research and the examination of the effect of external influences on the development of their constitutional judicial responses to EU law, both ante and post EU accession. The Polish-Hungarian comparison will accordingly constitute a research design of “most similar cases, most likely cases.”9 On the one hand, these are most similar cases because both States have had long experience with broader European institutional developments, relatively high levels of economic development and long-term integration into the Ger manic law sub-group of the civil law tradition.10 By focusing on just these two post-communist States in Central Europe, this substantially reduces the propensity for variation between their models and thereby allows for concentration on radically fewer key variables between the models and for exclusion of a whole host of complicating factors if examination were to countenance further country examples.11 In view of the fact that, as these States (along with a host of others) were in transition—although very much at the vanguard of political, economic and social change as well as two of the main frontrunners for EU accession12— underlines the importance of selecting examples that share as many features as possible.13

8 A.F. Tatham, “European Community Law Harmonization in Hungary” (1997) 4 MJ 249. 9 R. Snyder, “Scaling Down: The Subnational Comparative Method” (2001) 36 Studies in Comparative International Development 93–110. This approach is however still somewhat controversial in comparative constitutional law: cf. in favour, L. Weinrib, “The postwar paradigm and American exceptionalism,” chap. 4, 84–111; and against, J. Goldsworthy, “Questioning the migration of cons titutional ideas: rights, constitutionalism and the limits of convergence,” chap. 5, 115–141, both in S. Choudhry (ed.), The Migration of Constitutional Ideas, CUP, Cambridge (2006). 10 W. Jacoby, The Enlargement of the European Union and NATO: Ordering from the Menu in Central Europe, CUP, Cambridge (2004), at 13. 11 Jacoby (2004), at 13. In fact the low variation across country cases is consistent with research on compliance rates in Western Europe as well: T. Börzel, T. Hofmann & C. Sprungk, “Why Do States Not Obey the Law? Lessons from the European Union,” paper presented at the EUSA Eighth Biennial International Conference, 27–30 March 2003, Nashville (TN); and T. Lowi, “Four Systems of Policy, Politics, and Choice” (1972) 32 Public Administration Review 298–310. 12 Together with Czechoslovakia as part of the Visegrád Three: the Group originated at a summit meeting of the heads of state or government of Czechoslovakia, Hungary and Poland held in the Hungarian castle town of Visegrád on 15 February 1991 where, in 1335, the kings of Hungary, Poland and Bohemia had met to sign a peace treaty. It was founded to further co-operation between the States of Central Europe and their road to European integration. The Czech Republic and Slovakia became members after the dissolution of Czechoslovakia in 1993, with the States being referred to as the Visegrád Group or Visegrád Four (‘V4’). 13 V. Bunce, “Presidents and the Transition in Eastern Europe,” in K. von Mettenheim (ed.), Presidential Institutions and Democratic Politics, Johns Hopkins University Press, Baltimore (MD) (1997), 161, at 175.

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On the other hand, the Hungarian and Polish cases are most likely examples in that they are ‘close’ to Western Europe, whether this is measured in terms of history, geography, or even the race for EU membership.14 For the present author, based in Central Europe since 1993, the attractions of researching the Hungarian and Polish constitutional judicial institutions in the era preceding and following EU membership of their States were most pronounced. Combined with the writer’s marked comparatist tendencies, and his prior research into the effect of EU law on national administrative laws through a case-based methodology,15 the author was led to address the judicial reaction to the effect of EU law in the two Central European constitutional systems under consideration. In addition to his lectureships at universities in Hungary and links to ones in Poland, the author also worked for a number of years at the Hungarian Constitutional Court during its formative period and has continued contacts with judges both at this court and at the Polish Constitutional Tribunal. At the very start of this research, the author sought to conceive an argument in favour of the existence of some ‘Central European’ attitude among the constitutional judiciary vis-à-vis EU law as distinct from earlier approaches. Such constitutional judicial attitude, while not rejecting the whole concept of sovereignty and its essential or core principles, would nevertheless display a more nuanced and subtle consideration towards the judicial acceptance of EU law in the domestic system in the light of the principles developed by the ECJ. Since Hungary and Poland joined the EU in 2004 after the main constitutional decisions of the ECJ and the entry into force of the Maastricht Treaty, their constitutional justices might have absorbed more readily the notion of European integration into their deliberations and decision-making in a less fraught way than their colleagues in the ‘old’ EU Member States.16

14 Jacoby (2004), at 14. 15 A.F. Tatham, “Judicial Control of the Administration in France and Italy” 1990/3 Oxford University Law Society Journal 11; A.F. Tatham, “The Effect of European Community Directives in France: the Development of the Cohn-Bendit Jurisprudence” (1991) 40 ICLQ 907; A.F. Tatham, “Les recours contre les attentes portées aux normes communautaires par les pouvoirs publics en Angleterre,” (1993) 29 CDE 597; A.F. Tatham, “Restitution of charges and duties levied by the public administration in breach of European Community Law: a comparative analysis” (1994) 19 EL Rev. 146; and A.F. Tatham, “Judicial review as effective protection of Community rights” (1995) 36 ZfRV 15. 16 As if to go some way to support this argument of the late arrivals being more open to the notion of European integration, the Austrian Constitutional Court became the first national constitutional court, strictu sensu, to make a reference to the ECJ in 1999: Case C-143/99 Adria-Wien Pipeline GmbH v. Finanzlandesdirektion für Kärnten [2001] ECR I-8365. See generally on the relationship between the Austrian courts and the ECJ: G. Reichelt (ed.), Vorabentscheidungensverfahren vor dem Gerichtshof der Europäischen Gemeinschaft – Europäische Erfahrungen und österreichische Perspektiven, Manz, Wien (1998); and C. Stix-Hackl, “Österreichische Gerichte und das Vorabentscheidungsverfahren” 1998 AnwBl. 375.

introduction5 Nevertheless, these courts (within the overall context of Europeanisation17 of the institutional framework and legal systems of the CEECs prior to their respective accessions in 2004 and 2007) had been looking towards already wellestablished models of constitutional courts in the EU and their responses to the position of EU law in the domestic systems. During the present research, it became ever clearer that—despite a number of references to other courts in their case-law—the German Court’s influence has proved to be predominant. 3. Why Look at the Model Created by the German Constitutional Judiciary vis-à-vis European Integration? In this respect—due to its the institutional, legal and jurisdictional ‘fit’—the German Federal Constitutional Court has so far enjoyed the most extensive influence in guiding its Hungarian and Polish counterparts along the road of European integration. There are several reasons for this influence and, in addition to geographical proximity, it may be argued as including: (a) historic and legal cultural affinities; (b) linguistic ability and intellectual stimulus; (c) constitution and constitutional jurisdiction formation in the post-communist era; and (d) resultant influences on constitutional judicial practice.18 However, the important point to consider in this part of the research will be whether or not the German approach has been slavishly followed, adapted to local conditions or flatly rejected. 4. The Main Research Questions As a result of the foregoing, this book analyses the reasons for, the means by which and the extent to which the well-established case-law of the German Federal Constitutional Court has influenced or impacted upon the evolving practice of its Hungarian and Polish counterparts. Answers to such questions, it will be argued, undoubtedly have a major impact on the development of judicial dialogue between the ECJ and national constitutional courts.19 The three relevant questions to be posed and researched are set out and briefly discussed below.

17 See, e.g., A.F. Tatham, Enlargement of the European Union, Kluwer Law International, Alphen aan den Rijn (2009), chaps. 1, 13, 14, and 16; and F. Snyder (ed.), The Europeanisation of Law: The Legal Effects of European Integration, Hart Publishing, Oxford and Portland (OR) (2000). 18 See at Chapter 2, points B.1.-B.5. below for further discussion of this topic. 19 On the issue of judicial dialogue, see generally, M. Claes, The National Courts’ Mandate in the European Constitution, Hart Publishing, Oxford and Portland (OR) (2006), at 214–265; and A. Torres Pérez, Conflicts of Rights in the European Union: A Theory of Supranational Adjudication, OUP, Oxford (2009), at 97–138.

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a. Why Would Hungarian and Polish Constitutional Justices be Predisposed towards Following the Example of the German Federal Constitutional Court in Developing their Own Approaches to European Integration? In view of the previous discussion on the impact of German legal influences in Central Europe—combined with the education of the constitutional court justices and their emulation of the rigorous (and academic) standards of constitutional review displayed by the German Court in their own case-law, the natural assumption would be that the Hungarian and Polish justices would follow such example unless it proved to incur serious disadvantages to their system. b. Have these Courts in Fact Followed the German Court and to What Extent is this Reflected in Case Law? From a study of the case-law of both the Hungarian and Polish courts, it is clear that the Polish Constitutional Tribunal has asserted its own viewpoint within the broad parameters set by the German Court and has used German case-law to support its argumentation in certain specific cases. Nevertheless, it has not slavishly followed the perceived German status quo and, e.g., in the European Arrest Warrant case,20 has adopted a less ‘confrontational’ style vis-à-vis EU law and the ECJ while protecting the essential core of sovereignty. The Hungarian Constitutional Court’s decisions on EU law have tended, so far, to hover around the periphery, providing little actual content of a contentious nature while generally falling into line with the main tenets of German case-law. Its tentative approach thus perhaps belies division within the Court as to how to address the issue of EU law or a marked reluctance to be drawn into any controversy on the Union, thereby avoiding politicising its work. In either case, the time is fast approaching when the Hungarian Constitutional Court will be forced to take a fully-articulated and reasoned stance on EU law. c. How can this Development be used Constructively in Order to Deepen the Dialogue between National Constitutional Courts and the ECJ? Transnational judicial dialogue within the constitutional context of the European Union has been described by Rosas21 as concerning “the special relationship which exists between the ECJ and national courts of the EU Member States faced with problems of interpretation or validity of EU law.” However, dialogue between the ECJ and the highest domestic courts (particularly, though not exclusively,

20 European Arrest Warrant, 18 Juli 2005, 2 BvR 2236/04: BVerfGE 113, 273; [2006] 1 CMLR 378. 21 A. Rosas, “The European Court of Justice in Context: Forms and Patterns of Judicial Dialogue” (2007) 1/2 EJLS 1, at 6.

introduction7 constitutional courts) has been fraught with complications: this has been due, as will be argued,22 to the demands of supremacy and direct effect of EU law juxtaposed with the demands of the supremacy of national constitutions which judges have given their oath to uphold. As a byproduct of this dialogue, there is the interesting prospect of the development of a constitutional bloc of national (Central and Eastern European) courts, formed around and championed by the German Court under the process of horizontal transjudicial communication and migration of constitutional ideas. There is also the likelihood of a cross-European link with other Kelsenian model constitutional courts in Austria, Italy and Spain, as well as the conceivable participation of the French Conseil constitutionnel following the changes to its constitutional jurisdiction which has aligned it further with these constitutional courts.23 In bringing the ECJ into a more formal and effective dialogue with these courts, mediated through the wording of the post-Lisbon Treaty on European Union (‘TEU’) and the Treaty on the Functioning of the European Union (‘TFEU’), such courts would be able to engage actively in determining the meaning of the actual content of Union principles of democracy, the rule of law and the separation of powers, not to mention human rights (within an ever broader context of EU membership of the ECHR). Such a proposition has already been heralded by the 2009 decision of the German Federal Constitutional Court in the Lisbon Treaty case.24 The Conclusion of this work seeks to emphasise the continuing need for dialogue between the courts but to think beyond the justices themselves and other institutions (whether national or EU) in order to engage other stakeholders in the process of dialogue. In this sense, the author will posit the idea of encouraging the development of ‘constitutional references’ to the ECJ within an overall concept of dialogue between this court and the national constitutional courts.

22 See below at Chapter One, points B. and C. 23 The Loi constitutionelle no 2008-724 du 23 juillet 2008 de modernisation des institutions de la Ve République (JORF du 24 juillet 2008, 11890) amended the Constitution to introduce Art. 61-1 to allow courts to submit questions of unconstitutionality of laws to the Conseil constitutionnel. The law now permits challenging the constitutionality of a measure through a posteriori constitutional review where, previously, the constitutionality of a law could only be reviewed a priori. Nevertheless, the Cour de Cassation (supreme civil and criminal court) and the Conseil d’Etat (supreme administrative court) filter the requests coming from the courts under them. Moreover, ordinary persons will still not have any locus standi directly before the Conseil constitutionnel thus leaving only the established political actors according to Constitution Art. 61 with the necessary standing to submit petitions a priori: the President of the Republic, the Prime Minister, the President of the National Assembly, the President of the Senate, 60 members of the National Assembly or 60 senators. 24 Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267, at 350, 353–354 and 400; [2010] 3 CMLR 13, 276, at 335, 337–338 and 363–364.

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introduction B. Methodology of the Research 1. An Analysis Based on Case-Law

This research uses both theoretical as well as empirical methods. The thrust of this whole research project comes within a complex field of continued national sovereignty in the face of deepening European integration;25 comparative law and national judicial use of foreign concepts;26 as well as transjudicial communication.27 The methodological focus will remain, however, empirical research: a comparative constitutional case-law approach, which examines the actual decisions of the relevant courts in order to determine their respective positions on EU law and the domestic constitutional system. The impacts of comparative constitutional law have been considered extensively on a system-to-system,28 institution-to-institution,29 or law-to-law basis.30 The focus of research into judicial reception of comparative constitutional reasoning through constitutional decisions has also been made31 but this work will examine the movement between relatively similar constitutional systems of a judicial attitude to EU law which has been developed solely through judicial fiat. This may be contrasted to the reception of judicial interpretation of constitutional principles like the Rechtsstaat, the separation of powers, human rights and so forth. Although the prime method of comparative research and analysis underlines the entire work, in researching the reasons behind the actual case-law, use is

25 See below Chapter One, points B.1.-B.3. 26 See below Chapter One, point C.2.a. 27 See below Chapter One, points C.1. and C.2.b.-c. 28 See, e.g., H.P. Glenn, Legal traditions of the world: sustainable diversity in law, Oxford University Press, Oxford (2007); M.A. Glendon, M.W. Gordon & C. Osakwe, Comparative legal traditions: text, materials and cases on the civil law, common law and socialist law traditions, West Publishing Company, St. Paul (MN), (1985); D. Nelken (ed.), Comparing legal cultures, Dartmouth, Aldershot and Brookfield (VT), (1997); and E. Örücü, The enigma of comparative law: variations on a theme for the twenty-first century, Martinus Nijhoff Publishers, Leiden (2004). 29 See, e.g., J. Gordley (ed.), The enforceability of promises in European contract law, Cambridge University Press, New York (2001); L. Pegoraro & A. Rinella (eds.), Le fonti nel diritto comparato, G. Giappichelli Editore, Torino (2000); and J.H. Merryman, D.S. Clark & J.O. Haley, The civil law tradition: Europe, Latin America, and East Asia, Michie Co., Charlottesville (VA), (1994). 30 See, e.g., M. Andenas (ed.), Judicial review in international perspective, Kluwer Law International, The Hague and Boston (MA), (2000); M. Andenas & N. Jareborg, Anglo-Swedish studies in law, Iustus Förlag, Uppsala (1999); D. Fairgrieve, M. Andenas & J. Bell (eds.), Tort liability of public authorities in comparative perspective, BIICL, London (2002); and E. Örücü & J. Mair (eds.), Juxtaposing legal systems and the principles of European family law on divorce and maintenance, Intersentia, Antwerpen and Oxford (2007). 31 E. Örücü (ed.), Judicial comparativism in human rights cases, UK National Committee of Comparative Law (in assoc. with BIICL), London (2003); J. Přibáň & J. Young (eds.), The rule of law in Central Europe: the reconstruction of legality, constitutionalism and civil society in the post-Communist countries, Ashgate/Dartmouth, Aldershot and Brookfield, (VT), (1999); T. Ginsburg, Judicial review in new democracies: constitutional courts in Asian cases, Cambridge University Press, Cambridge (2003).

introduction9 made of methods based on sociology of law, political science as well as legal history. Consequently, into this mix must also be added consideration of the rather unique circumstances surrounding the issue of the law in post-communist transition legal systems, the role of the judiciary in such transition, its ability to sustain the new constitutional system and the building up of the necessary judicial capacity for it (like all other national judges of prospective EU Member States) to apply the acquis européen.32 Throughout the theoretical development of this research, use of relevant legal literature was essential in elaborating the answers to the questions posed. The decisions of the German and Polish constitutional courts have especially been very widely commented upon not only in Germany and Poland respectively but also in the other official languages of the EU. A completely exhaustive overview of all the relevant works is therefore clearly beyond the capacity of the present author. Nevertheless, as indicated below, relevant German, Polish and Hungarian literature has been used as well as that in English. 2. A Note on Materials and Language In any work on comparative law, the importance of the reliability of sourced materials and translations is paramount: this study is no exception and the present author has ensured as far as humanly possible the authenticity of materials and the accuracy of translations. For language, the main sources were to be found in German, Hungarian and Polish. In respect of German, the translations of decisions of the Federal Constitutional Court have been variously sourced from the Common Market Law Reports, the website of the Court33 itself (together with press releases), and the book by Kommers.34 For any other direct quotation, the author has relied on his initially slightly rusty, now much better honed, German-language knowledge: in some circumstances, e.g., with Honeywell, the author’s own translation has been retained while citation has been made to the relevant Common Market Law Reports in the footnotes. Moreover, in some cases, e.g., the translation of the Maastricht

32 This concept may be said to include the Treaties, all secondary legislation and judicial and quasi-judicial decisions made by Union institutions, as well as the non-binding acts such as opinions and resolutions of institutions: see A.F. Tatham, Enlargement of the European Union, Kluwer Law International, Alphen aan den Rijn (2009), chap. 12, 327, at 328. It was formerly referred to as the ‘acquis communautaire’ before the entry into force of the Lisbon Treaty which saw an end to the European Community by its complete subsumption into the European Union. 33 Available at: . Accessed 24 September 2012. 34 D. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany, 2nd ed., Duke University Press, Durham (NC) and London (1997).

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decision in the Common Market Law Reports,35 there has proved to be some necessity of revising or correcting the translation. For Hungarian, the author’s elementary knowledge could in no way equip him sufficiently to render accessible legal writing or decisions in that language. The translations of rulings of the Constitutional Court come from Sólyom & Brunner’s book36 or from the Court’s website.37 Where no translation has been available of these rulings or any sourced materials, lawyers or juris-linguists have provided the translations. Much the same can be said of Polish: absent a summary or translation of the relevant ruling of the Constitutional Tribunal in its own collection of cases between 1986 and 199938 or its own website,39 lawyers or juris-linguists have provided the translations as they have also done in respect of other primary or secondary sourced materials. In relevant places, while retaining such translations, additional citation has been made to the relevant Common Market Law Reports. The materials themselves have been consulted in a variety of places: the Institute of Advanced Legal Studies, London provided much material from German sources although the Library of the Hungarian Constitutional Court provided further German materials as well as all the Hungarian-language ones. Lastly, the Parliament Library in Budapest as well as the Library of the Faculty of Law, Jagiellonian University, Kraków furnished most of the Polish materials. C. Structure of the Research 1. Elementary Structure of the Study The Introduction presages chapters providing the European and German legal and constitutional context for the thesis, followed by the main chapters dealing with the States that are the focus of this present work. The Conclusion contains indications of possible mechanisms to assist in finding solutions to the European constitutional conundrum. 2. Set-up of the Study The study is set up to start with chapters on the European constitutional context and on the potency of German legal influence in Central Europe. These provide 35 [1994] 1 CMLR 57. In that case, e.g., the term ‘Staatenverbund’ was erroneously translated as ‘federation of [sovereign] States’ rather than as the widely accepted ‘association of [sovereign] States.’ 36 L. Sólyom & G. Brunner (eds.), Constitutional Judiciary in a New Democracy. The Hungarian Constitutional Court, University of Michigan Press, Ann Arbor (MI) (2000). 37 Available at: . Accessed 24 September 2012. 38 Constitutional Tribunal (Department of Jurisdiction and Studies), Selection of the Constitutional Tribunal’s jurisprudence from 1986 to 1999, Trybunale Konstytucyjny, Warszawa (1999). 39 Available at: . Accessed 24 September 2012.

introduction11 the overall constitutional, historical and legal cultural context for the work, and furnish an understanding of how German constitutional practice has such resonance in Hungary and Poland. The author then analyses the main themes of the German Federal Constitutional Court’s approach to European integration, highlighting areas of particular common concern to the German Court and ostensibly to its EU counterparts. The next two chapters then examine the development of the responses of constitutional justices in Hungary and Poland. By using the same framework as with the German model, a necessarily more straightforward comparison can be made between all three constitutional judicial organs. Moreover the task of highlighting the impact of the German model is thereby greatly facilitated. The final chapter, which concludes the study, reviews and reinterprets the main body of the work before turning to provide suggested solutions to the current stand-off between the ECJ and national constitutional courts.40

40 In this respect, see the FCC in Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267; [2010] 3 CMLR 13, 276.

CHAPTER ONE

THE GENERAL EU CONSTITUTIONAL CONTEXT Background The aim of the present Chapter is to provide an overview of the context in which judges in Central European constitutional courts must deal with issues of EU law. In order to afford a clearer understanding of this context, Chapter One will focus initially on a brief explanation of how the ECJ turned the Community and Union treaties into a constitution of the EU while noting that such judicial activism has not been universally accepted by constitutional courts in the EU Member States, pre-CEEC accession (below in section A). Next, it will be necessary to examine the framework of constitutional court reluctance to European integration, in other words why constitutional courts display their wariness to integration based on the individual nature of their national constitutions and the legal cultures that lie behind them. At the centre of the discussion is the dilemma which all constitutional judges face—protecting the constitution and system that they have sworn to uphold or complying with the duty of Union loyalty to give precedence to EU law in cases before them, as now enshrined in Art. 4(3) TEU (below in section B). Coupled with this individuality is the way in which the various constitutional courts have evolved their own case-law, defining the essential and inalienable core of their nation’s sovereignty which is not susceptible to the forces of European integration. In this process, constitutional judges have clearly operated within a European-wide context, communicating their own ideas on state sovereignty in the face of EU membership between one another. The borrowing of ideas from other constitutional courts or the migration of ideas between them is the central focus of the entire book (below in section C). A. Judicial Construction of the EU Constitution 1. Constitutionalisation of the Treaties This work is predicated on the idea that, even at this juncture of European integration, there is an identifiable construction which may be referred to as the

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Constitution of the European Union.1 The ‘thin’ definition of a constitution—as a body of law which constitutes and differentiates the main organs of government and their powers and which specifies the main rights and obligations connecting the citizenry to those organs of government2—indicates little more than that, in such a minimal sense, the EU3 already has ‘constitutional law.’4 Since the early 1960s, the ECJ has construed the founding Treaties of the European Communities “in a constitutional mode rather than employing the traditional international law methodology”5 and thus shifted the nature of the European legal order from that of Treaty to that of Constitution.6 Even in 1983, Rinze7 was able to conclude that—through the distribution of powers and competences between Community institutions and Member States set out in the Treaties, as well as the establishing of certain fundamental principles for the functioning of the then Communities—the Treaties at that time constituted the constitution of the EC. In fact, as will be seen below, this opinion was later confirmed by the ECJ in the case of Les Verts.8 From the jurisprudential stream of the ECJ flowed the now well-recognised EU constitutional principles9 including (a) the sui generis nature of EU law;

1 In general, see J.H.H. Weiler, The constitution of Europe: “Do the new clothes have an emperor?” and other essays on European integration, CUP, Cambridge (1999); and A. Silveira (ed.), Direito da União Europeia e Transnacionalidade, Quid Juris? Sociedade Editora, Lisboa (2010). 2 J. Raz, “On the Authority and Interpretation of Constitutions: Some Preliminaries,” in L. Alexander (ed.), Constitutionalism: Philosophical Foundations, CUP, Cambridge (1998), 152ff. See also I. Pernice, “Does Europe Need a Constitution? Achievements and Challenges After Lisbon,” in A. Arnull, C. Barnard, M. Dougan & E. Spaventa (eds.), A Constitutional Order of States? Essays in EU Law in Honour of Alan Dashwood, Hart Publishing, Oxford and Portland (OR) (2011), chap. 5, 75, at 79 and 84–98. 3 Following the report of the European Convention, the conclusions of the 2003 Intergovernmental Conference and the formulation of the EU Constitutional Treaty, the EU was to have gained its own Constitution in the form of a specific document. The phoenix-like rebirth of the Constitutional Treaty, from the ashes of the negative French and Dutch referendums, in the form of the Lisbon Treaty was (more than ever) a necessary prerequisite for further widening and deepening of the Union. Its subsequent immolation at the hands of Irish voters rejecting its ratification in June 2008 resulted in the resubmission of the (largely unchanged) Treaty to a further successful referendum in Ireland in October 2009. See A. Dashwood, “The EU Constitution – What Will Really Change?” (2004–2005) 7 CYELS 33; A. Peters, “The Constitutionalisation of the European Union – Without the Constitutional Treaty,” in S. Puntscher Riekmann & W. Wessels (eds.), The Making of a European Constitution, Verlag für Sozialwissenschaften, Wiesbaden (2006), 35. 4 P. Craig, “Constitutions, Constitutionalism and the European Union” (2001) 7 ELJ 125, at 126. 5 E. Stein, “Lawyers, Judges and the Making of a Transnational Constitution” (1981) 75 AJIL 1, at 1. 6 S. Weatherill, Law and Integration in the European Union, Clarendon Press, Oxford (1995), chap. 6, 184, at 185. 7 J. Rinze, “The role of the European Court of Justice as a Federal Constitutional Court” [1983] PL 426, at 430–431. 8 Case 294/83 Parti écologiste Les Verts v. European Parliament [1986] ECR 1339. 9 M.L. Fernandez Esteban, “Constitutional Values and Principles in the Community Legal Order” (1995) 2 MJ 129; J. Temple Lang, “The Constitutional Principles Governing Community Legislation” (1989) 40 NILQ 240.

the general eu constitutional context15

(b) supremacy; (c) direct effect; (d) pre-emption; and (e) protection of fundamental rights.10 As Rudden observed11 the ECJ had thereby affirmed that Union law was like Frankenstein’s monster—independent of its creator, imbued with a life of its own, supreme throughout the States’ territories, and immune from attack by their laws and constitutions. Confirmation of this conversion of international legal instrument to constitution was made (as indicated above) in the case of Les Verts12 that the EEC was “a Community based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty.”13 The high-water mark of the ECJ’s support for the treaty structure as being a constitution came more than 20 years ago with its Opinion on the Draft EEA Treaty wherein it stated:14 In contrast, the EEC Treaty, albeit concluded in the form of an international agreement, none the less constitutes the constitutional charter of a Community based on the rule of law. As the Court of Justice has consistently held, the Community Treaties established a new legal order for the benefit of which the States have limited their sovereign rights, in ever wider fields, and the subjects of which comprise not only Member States but also their nationals.… The essential characteristics of the Community legal order which has thus been established are in particular its primacy over the law of the Member States and the direct effect of a whole series of provisions which are applicable to their nationals and to the Member States themselves. [Emphasis supplied.]

More recently the ECJ ruled in Kadi15—“the European Community is based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid

10 On these points, see variously, P. Craig & G. de Búrca, EU Law: Text, Cases and Materials, 5th ed., OUP, Oxford (2011), at 180–301 and 362–407; B. de Witte, “Direct Effect, Supremacy and the Nature of the Legal Order,” in P. Craig & G. de Búrca (eds.), The Evolution of EU Law, 2nd ed., OUP, Oxford (2011), chap. 12, at 323–362; A.F. Tatham, EC Law in Practice: A Case Study Approach, HVG-ORAC, Budapest (2006), at 1–216; and Weatherill (1995), chaps. 4 and 5, at 97–134 and 135–183, respectively. 11 B. Rudden, Basic Community Cases, 1st ed., Clarendon Press, Oxford (1987), at 52. 12 Case 294/83 Parti écologiste Les Verts v. European Parliament [1986] ECR 1339. 13 Ibid., at para. 23. Emphasis supplied. For a detailed discussion of this case and subsequent developments, see L. Pech, “‘A union founded on the rule of law’: meaning and reality of the rule of law as a constitutional principle of EU law” (2010) 6 EuConst 359–396; and further, K. Lenaerts, “The Basic Constitutional Charter of a Community Based on the Rule of Law,” in M. Poiares Maduro & L. Azoulaï (eds.), The Past and Future of EU Law, Hart Publishing, Oxford and Portland (OR) (2010), 295–315. 14 Opinion 1/91 Re Draft Treaty on a European Economic Area [1991] ECR I-6079, at paras. 20–21. For a more detailed discussion, see M. Claes, The National Courts’ Mandate in the European Constitution, Hart Publishing, Oxford and Portland (OR) (2006), at 408–415. 15 Joined Cases C-402/05 P and C-415/05 P Kadi v. Council and Commission [2008] ECR I-6351, at para. 81.

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review of the question whether their acts are in conformity with the basic constitutional charter, the EC Treaty.” The process of constitutionalisation of the Community and later Union legal order16 was thus substantially achieved by the ECJ.17 While acceptance of this European constitutional settlement has been challenged by academics,18 any deficiencies were meant to be addressed, at least in part, by the European Convention19 which resulted in the 2004 Treaty establishing a Treaty on the Constitution for Europe.20 However, failed referendums in the Netherlands and France ended the process of the Constitutional Treaty’s ratification.21 Rising like a phoenix (minus

16 For consideration of European law as constitutional law, see e.g. T.C. Hartley, “Federalism, courts and legal systems: the emerging constitution of the European Community” (1986) 34 AJCL 229–247; J.H.H. Weiler, “The Transformation of Europe” (1991) 100 Yale LR 2403; Curtin (1993); Harden (1994); J.L. Seurin, “Towards a European Constitution? Problems of Political Integration” [1995] PL 625; E.-U. Petersmann, “Proposals for a new constitution for the European Union: Building-Blocks for a constitutional theory and constitutional law of the E.U.” (1995) 32 CML Rev. 1123; K. Lenaerts “Constitutionalism and the Many Faces of Federalism” (1990) 38 AJCL 205; F. Mancini, “The Making of a Constitution for Europe” (1989) 26 CML Rev. 595; E. Stein, “Lawyers, Judges and the Making of a Transnational Constitution” (1981) 75 AJIL 1; A. Weale, “Democratic Legitimacy and the Constitution of Europe,” in R. Bellamy, V. Bufacchi and D. Castiglione (eds.), Democracy and Constitutional Culture in the Union of Europe, Lothian Foundation Press, London (1995),103; F. Mancini, Democracy and Constitutionalism in the European Union: Collected Essays, Hart Publishing, Oxford (2000); P. Beaumont, C. Lyons & N. Walker (eds.), Convergence and Divergence in European Public Law, Hart Publishing, Oxford (2002). 17 I. Harden, “The Constitution of the European Union” [1994] PL 609; F. Jacobs, “Is the Court of Justice of the European Communities a Constitutional Court?,” in D. Curtin & D. O’Keefe (eds.), Constitutional Adjudication in European Community and National Law, Butterworths (Ireland), Dublin (1992), 25; and E. Sharpston & G. de Baere, “The Court of Justice as a Constitutional Adjudicator,” in Arnull, Barnard, Dougan & Spaventa (2011), chap. 7, 123–150. Curtin described the ‘sedimentary’ nature of the EU’s Constitution: “the metaphor of the sedimentary ‘living’ constitution conjures up the image of organic and incremental growth: gradual rather than sudden (although there may well be distinct and specific impulses, also treaty-based), piecemeal rather than a ‘big bang’”: D. Curtin, Executive Power of the European Union: Law, Practices, and the Living Constitution, OUP, Oxford (2009), chap 1, 3, at 9–10. Nevertheless, Curtin notes that the idea of a sedimentary constitution was previously proposed in respect of the US Constitution in B. Friedman & S. Smith, “The sedimentary constitution” (1998) 147/1 U. Pa. L. Rev. 1–90; and in respect of EU integration by W.T. Eijsbouts, “Constitutional sedimentation” (1996) 23 LIEI 51–60. 18 N. Walker, “European Constitutionalism and European Integration” [1996] PL 266; U. Everling, “Comments on B. de Witte’s ‘International Agreement or European Constitution?’,” in J. Winter et al. (eds.), Reforming the Treaty on European Union: The Legal Debate, Kluwer Law International, Deventer and The Hague (1996), 19, at 21; D. Grimm, “Does Europe need a Constitution?” (1995) 1 ELJ 282, at 291; F. Hayes-Renshaw & H. Wallace, The Council of Ministers, Macmillan, Basingstoke (1997), at 276; and D. Curtin, “The Constitutional Structure of the Union: A Europe of Bits and Pieces” (1993) 30 CML Rev. 17. 19 European Convention Secretariat, Draft Treaty establishing a Constitution for Europe, submitted by the President of the European Convention to the European Council meeting in Thessaloniki on 20 June 2003, CONV 820/1/03, REV 1, Brussels, 27 June 2003 (01.07). 20 Treaty establishing a Constitution for Europe: OJ 2004 C310/1. See J.-C. Piris, The Constitution for Europe. A Legal Analysis, CUP, Cambridge (2006). 21 A.F. Tatham, Enlargement of the European Union, Kluwer Law International, Alphen aan den Rijn (2009), chap. 1, 1, at 4.

the general eu constitutional context17

certain contentious provisions) from the ashes of the Constitutional Treaty, the 2007 Lisbon Treaty22 was viewed as the best possible solution to continue deepening integration absent the Constitution. This Treaty has addressed many of the concerns previously raised: rationalisation of the legislative procedures; an extension of the ECJ’s review jurisdiction throughout EU law (subject to some limitations); the introduction of the EU Charter of Fundamental Rights into the Treaty scheme proper (subject to ‘opt-outs’ for the UK and Poland); and the ending of the three-pillar system through the consolidation of the Treaties into two, the new TEU and the TFEU. 2. Constitutional Basis of EU Integration In its role as constitutional court, the ECJ in little over a decade (from 1963 to the mid 1970s) laid down the foundations of certain basic principles that “fixed the relationship between Community law and Member State law and rendered that relationship indistinguishable from analogous legal relationships in constitutional federal states.”23 As a result of this case-law, in each Member State, Union law becomes a new source of law, the provisions of which prevail over domestic norms of any level. The supremacy of EU law requires national judges to become Union judges24 and apply this law over conflicting national provisions, including constitutional law.25 In this way, the ECJ has accordingly sought to act as a midwife to the birth of a new European constitutional order.26 Such supremacy also—to some extent—reverses the formal subordination of national government to national parliament wherein the established principle of supremacy of statutes over delegated legislation and executive decrees formerly subsisted. Now, according to the case-law of the ECJ, secondary EU legislation, made by representatives of national governments in the Council of Ministers, takes priority even over the national constitution.27 22 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community: OJ 2007 C306/1. See generally, A. Biondi, P. Eeckhout & S. Ripley (eds.), EU Law after Lisbon, OUP, Oxford (2012). 23 Weiler (1991), at 2413. 24 J. Temple Lang, “The Duties of National Courts under Community Constitutional Law” (1997) 22 EL Rev. 3, at 3. More recently, the ECJ in Opinion 1/09 Re Draft Agreement on the European and Community Patents Court [2011] ECR I, nyr, at para. 66: “As is evident from Article 19(1) TEU, the guardians of that [EU] legal order and the judicial system of the European Union are the Court of Justice and the courts and tribunals of the Member States.” 25 Case 106/77 Amministrazione delle Finanze dello Stato v. Simmenthal SpA [1978] ECR 629; Case C-213/89 R. v. Secretary of State for Transport, ex parte Factortame Ltd. [1990] ECR I-2433. 26 Apologies from the present author for his own flight of fancy in creating this metaphor. 27 Case 11/70 Internationale Handelsgesellschaft mbH v. Einfuhr-und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125; Case 9/70 Grad v. Finanzamt Traunstein [1970] ECR 825; Case 41/74 Van Duyn v. Home Office [1974] ECR 1337; Case 51/76 Verbond [1977] ECR 113; Case 103/88 Fratelli Costanzo v. Comune di Milano [1989] ECR 1839. Such point is now confirmed in Declaration 17 Concerning Primacy (annexed to the Lisbon Treaty): see below at Chapter Six, point B.3.c.

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As Rubio Llorente has observed,28 an adequate constitutional basis of the integration process is indispensable: on the one hand, for the Member States, a transformation of this magnitude needs such a basis “since their own legitimacy would fall into doubt if changes were carried out in opposition to their respective constitutions”; on the other hand, the EU itself needs this articulated basis since it only possesses the power granted to it by the Member States and its law exists only to the extent that national judges (whose decisions are not reviewable by the ECJ) respect it. Thus judges would be unable to respect EU law if its validity and asserted primacy were to have no basis of support in the constitution they are bound by oath to uphold.29 For national constitutional courts, the cornerstone of European integration has long been the principle of two co-ordinated but distinct legal systems30 which are applied simultaneously to the parties by a single judge operating inside a single national jurisdiction. The effects of such a principle can be seen most vividly when it is applied to EU secondary legislation.31 Although theoretically derived from domestic law by means of authorisation clauses in the various national constitutions, the ECJ has maintained that the principles of the supremacy, direct effect and validity of such secondary EU legislation are based exclusively on the Treaties as a new order of international law and are immune from review by a national judge under any circumstances.32 The problem in applying this principle, set forth by the ECJ on numerous occasions, becomes most acute in relation to fundamental rights provisions in national constitutions.33

28 F. Rubio Llorente, “Constitutionalism in the ‘Integrated’ States of Europe,” Harvard Jean Monnet Working Paper No. 5/98. Available at: . Accessed 12 June 2010. 29 Confirmed, e.g., by the German Federal Constitutional Court: Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267, at 353–354 and 396–401; [2010] 3 CMLR 13, 276, at 337 and 361–364. The conferral of powers is made explicit in the Lisbon Treaty: Arts. 3, 4 and 6 TFEU. 30 A.F. Tatham, “The Italian Constitutional Court and the Process of European Integration,” in M. Király (ed.), Európajogi Tanulmányok, Vol. 7, ELTE ÁJK, Nemzetközi Magánjogi és Európai Gazdasági Jogi Tanszék, Budapest (2006), 169. 31 As defined in Art. 288 TFEU (ex-Art. 249 EC): “To exercise the Union’s competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions. A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States. A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.” 32 J. Steiner & L. Woods, Textbook on EC Law, 8th ed., OUP, Oxford (2003), chap. 5, at 88ff and the case-law mentioned therein. 33 Rubio Llorente (1998) 98-5-(6).html.

the general eu constitutional context19 B. Framework for Constitutional Court Reticence vis-à-vis European Integration 1. Introduction

In order to appreciate the actual context within which constitutional courts operate in the deepening European integration project, the two leitmotifs to the present study first need to be considered before embarking upon a more, in-depth analysis which is the substantial content of this book. These leitmotifs attempt to identify two particular considerations, viz.: (a) the ‘individuality’ of national constitutions and the legal cultures behind them; and (b) cross-fertilisation of common constitutional approaches through transjudicial communication. 2. The ‘Individuality’ of National Constitutions a. Legal Culture and Constitution: Separate Mentalités In their seminal work, Zweigert & Kötz34 identify certain features which set legal families apart from one another, viz., history, style of legal thought, ideology, sources and legal concepts. Each of these goes towards creating a distinctive style of legal system where law is seen not merely as a set of rules or norms but a way of thinking. According to both Krygier and Bell35 although law involves a tradition of handing on texts, the central element of the tradition is the approach which is adopted to the texts and the process of interpretation. Indeed, Bell36 maintains that a legal tradition, “is not just rules and processes, but is essentially the practice of people who operate and perpetuate the tradition. A tradition is a set of practices among a caste of lawyers.” This mentalité, according to Zweigert & Kötz as well as to Samuel and Legrand, is a defining feature of the legal culture and legal tradition.37 For Legrand38 a legal system is not just a set of rules (or even principles) but a set of traditions and practices which shape and sustain an attitude to law and its role in society. He has also stated:39 “The notion of ‘legal tradition’ implies, among other features, an idiosyncratic cognitive approach to law.” 34 K. Zweigert & H. Kötz, An Introduction to Comparative Law, 2nd ed., Clarendon Press, Oxford (1987), chap. 5, at 69. 35 M. Krygier, “Law as Tradition” (1986) 5 Law and Philosophy 237; and J. Bell, “The Acceptability of Legal Arguments,” in N. MacCormick & P. Birks (eds.), The Legal Mind, Clarendon Press, Oxford (1986), 45, at 53–56. 36 J. Bell, “Comparative Law and Legal Theory,” in W. Krawietz et al. (eds.), Prescriptive Formality and Normative Rationality in Modern Legal Systems, Festschrift for Robert S. Summers, Duncker & Humblot, Berlin (1994), 19, at 29. 37 G. Samuel, The Foundations of Legal Reasoning, Maklu, Antwerp (1995), at 28; P. Legrand, “The European Legal Systems are not Converging” (1996) 45 ICLQ 52. 38 Legrand, ibid., at 60. 39 P. Legrand, “Against a European Civil Code” (1997) 60 MLR 44, at 45.

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Bell, to a certain extent, agrees with these commentators and states:40 “The way you have learnt your law, its conceptual map, the doctrinal coherence and acceptable legal argument, the authoritative sources which must be used are all part of a legal culture.” But Bell departs from Legrand, inter alia, when he acknowledges that legal cultures41 are neither homogeneous nor unchanging. Thus, the notion of distinct mentalités is a significant feature of legal systems but is not determinative. This feature of a culture is not a barrier to either collaboration or the migration of ideas.42 Constitutions are still generally regarded as national phenomena. As such they are eminently dependent upon the historical, political, etc., context in the states they are supposed to govern—yet few legal instruments are more indebted to concepts and ideas from foreign countries.43 While each of the legal systems of the European states has a distinct mentalité, then, this has not prevented them from being open to impulses from outside, e.g., either in the drawing up of their constitutions or the use of non-domestic sources in judicial interpretation of the constitution. Indeed, it may be that the totalitarian interruption to the legal tradition of the states in both Western and Central Europe have rendered them more open to such extraneous influences. Without sounding too trivial, the national legal system is a society’s expression of its identity,44 as cogently argued by the German Federal Constitutional Court in the Lisbon case.45 In a sense, as Hart reasons,46 any society’s legal system contains the norms the society accepts as part of its conventional political morality. More specifically, a key purpose of a constitution is to express the fundamental values of the political order, providing a basis on which all can agree that the endeavour of political association is a good one and thereby assisting the legitimisation of the political order. The values expressed in a constitution resonate with values and beliefs held in society. They can thus affect perceptions and increase acceptability of the political order.47

40 J. Bell, “Mechanisms for Cross-fertilisation of Administrative Law in Europe,” in J. Beatson & T. Tridimas (eds.), New Dimensions in European Public Law, Hart Publishing, Oxford (1998), chap. 11, at 156. 41 For a detailed argument, from the point of view of sociology of the law, on whether or not a “legal culture” exists, see R. Cotterrell, “The Concept of Legal Culture,” chap. 1, at 13–30, and L.M. Friedman, “The Concept of Legal Culture: A Reply,” chap. 2, at 33–39, both in D. Nelken (ed.), Comparing Legal Cultures, Dartmouth Press, Aldershot (1997). 42 Bell (1998), at 157. 43 E. Smith, “Give and Take: Cross-fertilisation of Concepts in Constitutional Law,” in Beatson & Tridimas (1998), chap. 8, at 101. 44 R. O’Connell, Legal theory in the Crucible of Constitutional Justice: A study of judges and political morality in Canada, Ireland and Italy, Ashgate/Dartmouth, Aldershot (2000), at 265. 45 Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267; [2010] 3 CMLR 13, 276. 46 H.L.A. Hart, The Concept of Law, Clarendon Press, Oxford (1961), at 199. 47 F. Vibert, Europe: A Constitution for the Millennium, Dartmouth, Aldershot (1995), at 53–54.

the general eu constitutional context21

Although a constitution is intended to provide a stable framework for political association, over time, practical experience may make change desirable; external circumstances may also change. With the passage of time, there will be questions of government arising that never were, and never could have been, envisaged by the drafters of the constitution. Constitutions are designed, through the use of constitutional oversight, to prevent unintended changes while providing the necessary procedure for rule changes that become desired or necessary.48 Changes in the values of a society are one of the hallmarks of political (and economic) transition, necessitating change, reformulation or accommodation of legal culture to the new realities. This has been most marked in Europe and, in the last 25 years, in Central and Eastern Europe in particular. Institutions and legal procedures have been subject to profound change in such circumstances—the extent to which the limitations on judicial competence imposed through the positivist legal tradition have been altered, redefined or even overcome, particularly in the face of European integration, will be the subject of further discussion. b. National Legal Identity: Constitution and Sovereignty National identities also include national constitutional identities, since constitutions are the living expression of the very foundational values of a community, they express what turns a community into a genuine political community of principle.49 Bell has mentioned50 the way in which legal actors and a national legal culture are intrinsically bound up with each other and that apparently common values have significantly different meanings in different judicial cultures: “It is my contention that basic values are understood and implemented in the light of historical and institutional settings … national histories and traditions colour the understanding of common values….” Indeed, there still exists a tendency nowadays—despite the many years of European integration through EU law as well as, e.g., the ECHR and its mechanisms, together with the compulsory component of EU law in legal education across the continent—for the great majority of lawyers to think of ‘their law’ and ‘their legal system’ within the narrower limits of the nation-state. Although EU law has made and continues to make great inroads into the areas formerly regarded as exclusively national or affected by international treaty law, e.g., civil law and private international law respectively, such areas (as with most

48 Ibid., at 164–165. 49 A. Verhoeven, The European Union in Search of a Democratic and Constitutional Theory, Kluwer Law International, The Hague, London & New York (2002), at 324. 50 J. Bell, “Judicial Cultures and Judicial Independence” (2001) 4 CYELS 47, at 47.

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others) are taught only from the national perspective in the local language. Headway of a sort may be made in providing for a comparative approach, e.g., the availability of national court decisions on the application of the Brussels Convention/Regulation,51 yet legal education that generally limits study to a particular state encourages what Habermas52 and Aziz53 have referred to as ‘Verfassungspatriotismus,’ a patriotic loyalty to ‘one’s own constitution.’ The distinctiveness of each EU Member States’ constitution is based not only on different cultural and historical influences but also on the fact that they contain ‘unique’ principles or a national ‘essential core of sovereignty’ which has required strong and sustained defence in the face of the constitutionalisation of the European project. This has been affirmed, e.g., by the Polish Constitutional Tribunal in the European Arrest Warrant case54 and by recognition of national ‘constitutional identity’ by the German Federal Constitutional Court in the Lisbon case,55 as well as by the Czech56 and Hungarian57 constitutional courts in their own Lisbon Treaty rulings. c. Dilemma of Constitutional Justices Faced with European Integration Constitutional court judges are by no means immune to the phenomenon set out in the previous section, bound as they are—through their oath of office—to uphold the State’s constitution and laws. But they must also comply with the obligation of Union loyalty imposed on them by Art. 4(3) TEU58 which states in part:

51 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters: OJ 1972 L299/32; and Council Regulation 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“Brussels I”), as amended: OJ 2001 L12/1 (corrigendum, OJ 2001 L307/28). The national cases on the application of both these instruments, together with the Lugano Convention (OJ 1988 L319/9; superseded by Council Dec. 2007/712/EC: OJ 2007 L339/1) are available at: . Accessed 24 September 2012. 52 J. Habermas, “Staatsbürgerschaft und nationale Identität,” in J. Habermas, Faktizität und Geltung, Suhrkamp, Frankfurt am Main (1992). Although this concept is associated with Habermas, it was in fact the earlier creation of Sternberger: D. Sternberger, Verfassungspatriotismus, Insel, Frankfurt am Main (1990). 53 M. Aziz, “Review of T. Tridimas, The General Principles of EC Law (1999)” (2000) 63 MLR 473–474. In the European context see also, J. Lacroix, “For a European constitutional patriotism” (2002) 50(5) Political Studies 944–958. 54 Dec. P 1/05, 27 April 2005: OTK ZU 2005/4A, Item 42; [2006] 1 CMLR 965. 55 Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267; [2010] 3 CMLR 13, 276. 56 Czech Const. Ct. Decision of 26 November 2008: Case No. Pl. ÚS 19/08; and Czech Const. Ct. Decision of 3 November 2009: Case No. Pl. ÚS 29/09. 57 Dec. 143/2010 (VII.14) AB: ABH 2010, 698. 58 On this Article as Art. 10 EC (ex-Art. 5 EEC), see generally J. Temple Lang, “Community Constitutional Law: Article 5 EEC Treaty” (1990) 27 CML Rev 645.

the general eu constitutional context23 The Member States shall take any appropriate measure, whether general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. They shall facilitate the achievement of the Union’s tasks and shall refrain from any measure which could jeopardise the attainment of the objectives of the Union.

This Union obligation is binding on Member States irrespective of their institutional or constitutional structure.59 The fact that the executive represents the Member State vis-à-vis the Union institutions does not—in the eyes of the ECJ— free the judiciary from its obligations to respect and execute Union law: this is so even if, according to their respective national constitutions, they are independent and sovereign.60 In fact, the ECJ expressly stated in 1984 in von Colson61 that the duty under what is now Art. 4(3) TEU was binding, for matters within their jurisdiction, on the courts.62 National judges (including constitutional justices) therefore have a duty,63 in common with the ECJ, to see that EU law is respected in the application and interpretation of the Treaties.64 In the view of the ECJ “the judicial authorities of the Member States … are responsible for ensuring that [Union] law is applied and respected in the national legal system.”65 The duty of national courts to apply Union law means that they must apply it fully, even if it is inconsistent with the national constitution;66 further, every court which has to decide a case in which an EU law point arises must be able to decide on its own motion to refuse to apply any national rule conflicting with EU law rather than delaying this issue by having to refer the matter to a constitutional court, as required under national law.67 However, the rigours of this ‘immediacy’ doctrine have been somewhat attenuated in the field of human rights protection following the ECJ ruling in Melki.68 59 Case 77/69 Commission v. Belgium [1970] ECR 237, at 243; Case 8/70 Commission v. Italy [1970] ECR 961, at 966. 60 Case 167/73 Commission v. France [1974] ECR 359. 61 Case 14/83 von Colson v. Land Nordrhein-Westfalen [1984] ECR 1891, at 1909. 62 G. Tesauro, “The effectiveness of judicial protection and co-operation between the Court of Justice and national courts,” in K. Thorup & J. Rosenløv (eds.), Festskrift til Ole Due: Liber Amicorum, Gads Forlag, København (1994), 355. 63 J. Temple Lang, “The Duties of National Courts under Community Constitutional Law” (1997) 22 EL Rev. 3, at 3. 64 Case 244/80 Foglia v. Novello (No. 2) [1981] ECR 3045; Joined Cases C-422/93 to C-424/93 Erasun [1995] ECR I-1567, at para. 15. 65 Case C-2/88 Imm. Zwartfeld [1990] ECR I-3365. 66 Case 106/77 Amministrazione delle Finanze dello Stato v. Simmenthal SpA [1978] ECR 629, at paras. 22 and 24, although the national court retains a discretion to decide at what stage of the procedure it is appropriate to refer a question to the ECJ: Case C-348/89 Mecanarte-Metalúrgica de Lagoa Lda. v. Chefe do Serviço da Conferência Final da Alfândega do Porto [1991] ECR I-3277, at paras. 46 and 48. 67 Temple Lang (1997), at 5–6. 68 Joined Cases C-188/10 and C-189/10 Proceedings against Melki and Abdeli [2010] ECR I-5667. See M. Bossuyt & W. Verrijdt, “The Full Effect of EU Law and of Constitutional Review in Belgium and France after the Melki Judgment” (2011) 7 EuConst 335, at 375–388.

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There is a sting in the tail for constitutional justices—on one level, they are required by the ECJ to apply EU law over their own constitution (which they are bound by oath to uphold); on the other level, the ECJ effectively introduces by means of Art. 4(3) TEU a diffuse system of constitutional review through ordinary courts in the field of EU law into what in Germany is regarded as a concentrated system of review. As Alter noted,69 this empowerment of ordinary courts is regarded as a major explanation for those courts’ easy acceptance of EU law supremacy: conversely,70 “the capitis diminutio suffered by constitutional courts” represents another reason why those courts remain hesitant, or even hostile, to the idea of recognising the full force of Union law. 3. Verfassungskern a. Core Principles of Sovereignty The relation between European legal integration and the fundamental principles and values of the Member State constitutions71 still remains far from settled.72 For some, the necessary constitutional settlement can best be achieved through a written European Constitution73 while others are now tending to a less directed, more ‘naturally organic’ growth principle in this field.74 There are those, like Poiares Maduro, who are eloquent in their desire not to advocate a European Constitution at all, when he states:75

69 K.J. Alter, “The European Court’s Political Power” (1996) 19 West European Politics 458, at 459; J.H.H. Weiler, “A Quiet Revolution: The European Court of Justice and its Interlocutors” (1994) 26 Comparative Political Studies 510. 70 De Witte (1999), at 208. 71 In many national constitutional cultures (Walker (1996), at 272), Van Caenegem has argued persuasively that an historical symbiosis exists between “the framework of constitutional government and a broad ethic of constitutionalism,” embracing such ideas as fundamental rights, the separation of powers, the federal division of powers or, even more generally, limited government and the rule of law, or Rechtsstaat, principle itself: R.C. van Caenegem, An Historical Introduction to Western Constitutional Law, CUP, Cambridge (1995), chap. 1. These ideas have been reinforced by studies of more recent constitutions: C. Grewe & H. Ruiz Fabri, Droits constitutionnels européens, Presses universitaires de France, Paris (1995); and D. Rousseau, La justice constitutionnelle en Europe, Montchrestien, Paris (1998). 72 B. de Witte, “Sovereignty and European Integration: The Weight of Legal Tradition” (1995) 2 MJ 145; revised, B. de Witte, “Sovereignty and European Integration: the Weight of Legal Tradition” in Slaughter, Stone Sweet & Weiler (eds.), (1998), chap. 10, 277. 73 L. Siedentop, Democracy in Europe, Penguin Books, London (2000), chap. 5, 81, particularly at 94–97; T. Börzel & Th. Risse, “Who is Afraid of a European Federation? How to Constitutionalise a Multilevel Governance System” (2000) Harvard Jean Monnet Working Paper, No. 7/00. Available at: . Accessed 20 July 2007. 74 J.H.H. Weiler, “Federalism and Constitutionalism: Europe’s Sonderweg” (2000) Harvard Jean Monnet Working Paper, No. 10/00. Available at: . Accessed 20 July 2007. 75 M. Maduro, We, The Court: The European Court of Justice and the European Economic Constitution, Hart Publishing, Oxford (1998), at 175. Weiler also seeks to formulate the dilemma as a

the general eu constitutional context25 European integration not only challenges national constitutions … it challenges constitutional law itself. It assumes a constitution without a traditional political community defined and proposed by that constitution …. European integration also challenges the legal monopoly of States and the hierarchical organisation of the law (in which constitutional law is still conceived of as the “higher law”).

The crux of the whole debate is the question of the protection of national sovereignty and what it actually means within the context of European integration.76 As explained by De Witte:77 The fiction of popular sovereignty can easily accommodate the fact that all state power is exercised by political institutions that act in the name of the people and are accountable to the electorate (directly or through the intermediary of an elected Parliament), but it can less easily accommodate the exercise of power by international institutions that do not act in the name of the people of a single nation and are not, or only very remotely, accountable. This is the reason why the European Community cannot easily be integrated within the traditional account of popular sovereignty. [Emphasis in original.]

He continues by stating that this also explains why the principle of sovereignty has been used by the constitutional courts—in Italy, Germany, France and Spain—as an instrument for regulating the pace of European integration, for draw ing the border between acceptable and unpalatable advances of European law. The attempts of the ECJ at remoulding the European constitutional system were not accompanied by a universal welcome on the part of national, particularly constitutional, courts.78 The reactions on the part of the domestic constitutional courts to the ECJ’s famous doctrinal judgments in this sphere79 have occasionally proved to be hostile. As will later be examined, at the forefront of the reaction has been the German Federal Constitutional Court80 but the constitutional tribunals in Italy, France and Spain have also added their voices.81 Each constitutional judicial entity within these three latter States has, over several decades, developed through case-law its concepts of the core of national sovereignty that act as limitations to the transfer of the exercise of national

“Constitution without Constitutionalism”: J.H.H. Weiler, “‘… We Will Do, And Hearken’ (Ex. XXIV:7): Reflections on a Common Constitutional Law for the European Union,” in R. Bieber & P. Widmer (eds.) The European Constitutional Area, Schulthess, Zürich (1995), 413, at 413. 76 Generally, Th. De Barranger, Constitutions nationales et construction communautaire, LGDJ, Paris (1995). 77 De Witte (1995), at 149; de Witte (1998), at 281. 78 On French administrative courts, e.g., A.F. Tatham, “Effect of European Community Directives in France: The Development of the Cohn-Bendit Jurisprudence” (1991) 40 ICLQ 907. 79 Case 26/62 Van Gend en Loos [1963] ECR 1; Case 6/64 Costa v. ENEL [1964] ECR 585; Case 106/77 Simmenthal [1978] ECR 629; Case C-213/89 Factortame [1990] ECR I-2433. 80 See generally Chapter Three below. 81 See A. Stone Sweet, Governing with Judges: Constitutional Politics in Europe, OUP, Oxford (2000), at 166–193.

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sovereign powers to the EU. The French Constitutional Council82 has developed since 197083 the concept of “the essential conditions for the exercise of national sovereignty.” For example, from its decision on the constitutionality of the 1990 Convention implementing the 1985 Schengen Agreement,84 these essential conditions include the respect of the institutional structure of the French Republic; the continuity of the life of the nation; and the guarantee of the rights and liberties of the citizen. In the decision on the 2004 EU Constitutional Treaty,85 the secular nature of the State was also determined to be an essential condition. The Italian Constitutional Court has established its own ‘counter limits’ to integration86 based on fundamental principles of the Constitution and inviolable human rights that represent the acceptable limitations to the transfer of sovereignty. In SpA Fragd c. Amministrazione delle Finanze dello Stato,87 the Italian Court affirmed that in principle a rule of Union law could not be applied in Italy if it infringed a fundamental principle of the Constitution,88 notwithstanding the fact that the ECJ had already accepted the legality of the rule.89 Fragd thus indicates that the Constitutional Court would be willing to test the consistency of individual rules of European law against fundamental constitutional provisions and those protecting inviolable human rights.90 The Italian Court accordingly reserves for itself the possibility to raise an ordinary control of constitutional legitimacy of EU law, in reference to the fundamental principles and inviolable human rights in the Constitution.91 Shortly put, the control limits conceived at the outset as conditions of the limitations of sovereignty became a limitation as to the primacy of EU law. This position was reaffirmed in later cases of the Constitutional

82 See generally, F. Luchaire, “Le Conseil constitutionnel et la souveraineté nationale” 1991 RDP 1499. 83 Re the Treaty of Luxembourg, Cons. constit. 19 juin 1970, n. 39, Rec. 15. 84 Cons. constit. 25 juillet 1991, n. 294, Rec. 91. See comment by G. Vedel, “Schengen et Maastricht (à propos de la décision n° 91–294 DC du Conseil constitutionnel du 25 juillet 1991)” 1992 RFDA 173. 85 Cons. constit. 19 novembre 2004, n. 505, Rec. 173. 86 R. Guastini, “La primauté du droit communautaire: une révision tacite de la Constitution italienne” (2000) 9 Les Cahiers du Conseil constitutionnel 119, at 120. 87 Corte cost. 21 aprile 1989, n. 232: Giur. cost. 1989, I, 1001; M. Cartabia, “Nuovi sviluppi nelle ‘competenze comunitarie’ della Corte costutuzionale” Giur. cost. 1989, I, 1012. 88 The Court referred to Constitution, Art. 24 concerning judicial protection but could be equally applicable to other provisions also considered as fundamental. 89 H.G. Schermers, “The Scales in Balance: National Constitutional Court v. Court of Justice” (1990) 27 CML Rev. 94. 90 This amounted to a redefinition of the Court’s competence within the limits of its powers to check – “through the control of constitutionality of the law of execution of the Treaty, if whatever norm of the Treaty, as it is interpreted and applied by the Community institutions and organs, is not in conflict with the fundamental principles of the constitutional order nor infringes the inalienable rights of human beings.” 91 M. Cartabia & J.H.H. Weiler, L’Italia in Europa. Profili istituzionali e costituzionali, il Mulino, Bologna (2000), at 129–133, at 171–172.

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Court dealing with the direct effect of directives: S.p.A. Industria Dolciaria Giampaoli v. Ufficio del Registro di Ancona92 and Zerini.93 Lastly, in Spain, the Constitutional Tribunal in the FOGASA case,94 the Tribunal stated that although the conflict between an EU norm and a national law was a ‘selection of the rule to be applied’ problem, that selection could have a constitutional relevance if it violated fundamental rights (excluding Constitution Art. 24(1)95). The Tribunal’s reference to sovereignty as a limit to European integration is perhaps more direct than the reference to fundamental rights that the Tribunal makes, as evidenced by its own Maastricht case96 in which it examined whether Art. 20(2)(b) TFEU (then Art. 8b(1) EC)—which permits EU citizens resident in a Member State but not being a national of it to participate in municipal elections97—was contrary to Constitution Art. 1(2) which says that “national sovereignty rests with the Spanish people, from which all powers derive.” The Tribunal established98 that the Treaty Article in question could only be infringed if the “attribution of the right to vote to foreigners was [in an election to] those organs that hold powers directly derived from the Constitution and from the Statutes of the Autonomous Regions [i.e., the constitutional bloc] and linked to the holding of sovereignty by the Spanish people.” The Tribunal’s position as regards both issues of fundamental rights and sovereignty led commentators to develop a doctrine of a ‘material constitutional nucleus.’99 The main aspects of such nucleus were considered to be fundamental rights as well as ‘structural principles’ of the Constitution (Title I and Art. 10). It accordingly remained less clear as to whether and to what extent this nucleus could be modified, as a consequence of European integration, through the procedures of constitutional reform.100 The existence of constitutional limits, at which

92 Corte cost. 8 aprile 1991, n. 168: Giur. cost. 1991, 327: P.F. Lotito, “Comunità europee: Corte costituzionale e direttive ‘self-executing’” Quad. cost. 1991, 613. 93 Corte cost. 23 marzo 1994, n. 117: Giur. cost. 1994, 785. A. Adinolfi, “The Judicial Application of Community Law in Italy (1981–1997)” (1998) 35 CML Rev. 1313, at 1322. 94 Trib. Const. 31 mayo 1993, STC n. 180/1993: BOE n. 159, 5 julio 1993. 95 Constitution Art. 24(1) provides: “All persons have the right to the effective protection of the judges and courts in the exercise of their rights and legitimate interests, and in no case may there be a lack of defence.” 96 Trib. Const. 10 julio 1992, DTC n. 1/1991: BOE n.177, Suppl. 24 julio 1992. 97 “Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State…” 98 A. Estella de Noriega, “A Dissident Voice: The Spanish Constitutional Court Case Law on European Integration” (1999) 5 EPL 269, at 297. 99 Generally, A. López-Castillo, Constitución e Integración, CEC, Madrid (1996). 100 E. García de Enterría & R. Alonso García, “Spanish report,” in J. Schwarze, The Birth of a European Constitutional Order: The Interaction of National and European Constitutional Law, Vol. 249 Schriftenreihe Europäisches Recht, Politik und Wirtschaft, Nomos Verlagsgesellschaft, Baden-Baden (2001), 287, at 297.

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European integration would meet the boundaries of Spanish constitutionalism,101 was finally confirmed by the Tribunal in its ruling on the 2003 EU Constitutional Treaty102 when it declared that Constitution Art. 93103 incorporated implicit substantive limits to integration, viz., the respect for state sovereignty, basic constitutional structures, and the system of values and fundamental principles consecrated in the Constitution, in particular fundamental rights.104 The point becomes clearer as each constitutional tribunal delivers a new decision in the field of national sovereignty. Through their own case-law, a consensus has emerged among these constitutional tribunals of the existence—in their respective domestic systems—of a concept of an inalienable core of national sovereign rights which remains as a bulwark against further judicial encroachment on the state through ECJ judgments and even the TEU and TFEU. The content of this core is currently determined by the different constitutional courts according to their own national constitutional traditions. Nevertheless, the fact that this process is not occurring within a vacuum has actually given rise to a pan-European horizontal transjudicial dialogue between national constitutional courts, as discussed later in this Chapter, with each one viewing how the others react to the evolutionary development of EU law and the interpretative judgments of the ECJ.105 This perceived cross-fertilisation (discussed presently) is bearing its own fruit, and certain definitive principles are evidently accepted by all the courts under examination in this study, as forming part of the essential, inalienable core of national sovereign rights. These include: fundamental rights; the democratic principle; the rule of law principle; and the nature of state governance (monarchy/ republic; federal/unitary).106

101 Estella de Noriega (1999), at 298. 102 DTC 1/2004 de 13 de diciembre 2004: BOE 4 enero 2005, at para. 2. 103 1978 Spanish Constitution Art. 93: “By means of an organic law, authorisation may be granted for concluding treaties by which powers derived from the Constitution shall be vested in an international organisation or institution. It is incumbent on the Cortes Generales or the Government, as the case may be, to guarantee compliance with these treaties and with the resolutions emanating from the international and supranational organisations in which the powers have been vested.” 104 A. Torres Pérez, “The Judicial Impact of European Law in Spain: ECHR and EU Law Compared” (2011) 30 YBEL 159, at 166–168. 105 Such was the case of the German FCC in its decisions in Solange I (Internationale Handelsge sellschaft: BVerfG 29 Mai 1974: [1974] 2 CMLR 540); and Solange II (Wünsche Handelsgesellshaft: 22 Oktober 1986, BVerfGE 73, 339 (1986); [1987] 3 CMLR 225) vis-à-vis the rulings of the Italian Constitutional Court in Frontini c. Ministero delle Finanze (Corte cost. 27 dicembre 1973, n. 183: Giur. cost. 1973, 2401; [1974] 2 CMLR 372; M. Berri, “Legittimità della normativa comunitaria” Giur. it. 1974, I, 513); and in SpA Granital c. Amministrazione delle Finanze (Corte cost. 5 giugno 1984, n. 170: Giur. cost. 1984, 1098. F. Capelli, “Una sentenza decisive sui rapporti fra CEE e leggi nazionali” Dir. com. scambi. internaz. 1984, 204) respectively. See further below in Chapter One, point C. 106 To this must be added the putative meditative influence of the Lisbon Treaty amendments to the EU and TFEU: see below in Chapter Six, point B.3. See also the FCC in the Lisbon case: below at Chapter Three, point E.2.d.

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b. The Essential Core in the Face of EU Integration Constitutional court justices have, in many respects, arrogated to themselves on the basis of such national uniqueness the right to act as guardians not just of the constitution but of the whole legal culture and heritage of their state. Their decisions, effectively determining the contours of continuing integration, have sought to maintain distinct national identities through reference to their own understanding of national sovereignty and its essential core. For constitutional justices, encroachments upon the core could easily precipitate a course of events the ultimate outcome of which would be the negation of the nation-state like a latter-day ‘Jonah’ and its being ‘swallowed up’ by some EU whale. Judges in constitutional courts are clearly aware of the directions of European integration but are generally wedded to the idea that the concepts of people, nation and constitution are woven into the very fabric of their distinct national cultures. It is evident that the constitutional courts are still coming to terms with a decline in the notion of absolute sovereignty in the post-Westphalian era.107 In the face of increasing EU integration, such courts as influential actors in this process have made their own particular contribution to the debate on the politicisation of sovereignty. Their quandary has been well expressed by Aziz where—although made in reference to the German constitutional debate on EU integration—her remarks highlight the nub of the problem of the sovereignty debate, i.e., identity politics:108 Accordingly, the values which underpin human rights are regarded as being an intrinsic element of the state’s identity and it is this which is both articulated, not only in decisions of constitutional courts … but also in the academic sovereignty debate as a whole…. [W]hat is being fought over is the identity of the nation state. In other words: we (the nation-state) are who we say we are and we reserve the ability to define who we are. We cannot permit others to define who we are, as defining our identity is our sovereign right. [Emphasis in original.]

Her critique of what she refers to as the ‘étatist’ school of thought, as championed by Kirchhof,109 is well reasoned and underlines the school’s premise that the legal strength of Europe lies in its states,110 and that the EU is a ‘union of sovereign 107 See generally A. Linklater, The Transformation of Political Community: Ethical Foundations of the Post-Westphalian Era (1998). 108 M. Aziz, “Sovereignty Lost, Sovereignty Regained? Some Reflections on the Bundesverfassungsgericht’s Bananas Judgment” (2002/03) 9 Col. Jo. Euro L. 109, at 132. Footnote references omitted. 109 P. Kirchhof, “Europäische Einigung und der Verfassungsstaat der Bundesrepublik Deutschland,” in J. Isensee (ed.), Europa als politische Idee und als rechtliche Form, 2nd ed., Duncker & Humblot, Berlin (1994), 63; and P. Kirchhof, “Der Weg Europas ist der Dialog” (1999) 12 EuZW 353. 110 P. Kirchhof, “Deutsches Verfassungsrecht und Europäisches Gemeinschaftsrecht,” in P. Kirchhof & C.-D. Ehlermann (eds.), Deutsches Verfassungsrecht und Europäisches Gemein schaftsrecht, EuR Beiheft 1/1991, 11, at 12.

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states’ or the societas of states.111 Aziz then112 proffers a ‘post-étatist’ view by noting that, while the state should not be regarded as anachronistic, nevertheless obligations arising as a consequence of the EU qualify or ‘go beyond’ the State.113 Such a contrasting theory of the state is predicated on the view of it being porous, able to transcend its boundaries to the extent they are not ‘hermitically sealed,’ not fully independent, having endowed the EU with its sovereign authority, possibly pointing to an emergent universitas.114 This viewpoint has already been challenged by the FCC in the Maastricht115 and Lisbon116 cases. While in the Lisbon case the FCC resorted to a new concept of statehood,117 it stuck rigidly to its well-worn attitude to the EU as a ‘Staatenverbund,’ an association of (sovereign) States.118 C. Transjudicial Communication in the EU 1. Introduction This concept119 amounts to communication between courts, whether national or supranational, across borders120 and has been vital not only in developing the notions of rights and other components of an essential core of sovereignty but also in formulating ‘concerted’ national constitutional court responses to the everdeepening integration of the EU. The current research continues to describe and

111 R. Jackson, “Sovereignty in World politics: a Glance at the Conceptual and historical Landscape” (1999) 47 Political Studies 431, at 449ff. 112 Aziz (2002), at 134. 113 N. MacCormick, Questioning Sovereignty: Law, State, and Nation in the European Commonwealth, OUP, Oxford (1999). 114 Jackson (1999), at 451. 115 Maastricht, 12 Oktober 1993, 2 BvR 2134 und 2159/92: BVerfGE 89, 155; [1994] 1 CMLR 57. See below at Chapter Three, point E.2.a.-b. 116 Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267; [2010] 3 CMLR 13, 276. See below at Chapter Three, point E.2.d. 117 Ibid., at 346; ibid., at 333, when the FCC stated that sovereign statehood represented a pacified area and the order guaranteed therein on the basis of individual freedom and collective selfdetermination. The state was therefore neither a myth nor an end in itself but the historically grown and globally-recognised form of organisation of a viable political community. 118 Ibid., at 348; ibid., at 334, when the FCC noted that the concept of ‘Verbund’ covered a close long-term association of states which remained sovereign, an association which exercised public authority on the basis of a treaty, whose fundamental order, however, was subject to the disposal of the Member States alone and in which the peoples of their Member States, i.e., the citizens of the states, remained the subjects of democratic legitimation. 119 For a more recent consideration of the concept, see F. de Londras & S. Kingston, “Rights, Security, and Conflicting International Obligations: Explaining Inter-Jurisdictional Judicial Dialogues in Europe” (2010) 58 AJCL 359, at 371–387. 120 A.-M. Slaughter, “A Typology of Transjudicial Communication,” in T.M. Franck & G.H. Fox (eds.), International Law Decisions in National Courts, Transnational Publishers Inc., Irvingtonon-Hudson, New York (1996), chap. 4, 37, at 38.

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analyse this process in relation to two constitutional courts that are relative newcomers to European integration. Such type of communication is no real ‘innovation’ but actually forms a normal and consistent part of (national) constitutional adjudication, at least in Europe. Brudner has stated:121 [T]hose who interpret local constitutional traditions take a lively interest in how their counterparts in other jurisdictions interpret their own traditions and in how international tribunals interpret human-rights instruments whose language is similar to that of their own texts. This interest, moreover, is a professional one. Comparative constitutional studies are valued, not as a leisurely after-hours pastime, but for the aid they give to judicial … interpreters of a national constitution.

In her seminal work, Slaughter122 provided clear examples of the typology of trans judicial communication and how it operates among the nations of Europe through identifying three forms: (i) horizontal; (ii) vertical; and (iii) mixed. Horizontal transjudicial communication is said to occur between courts of the same status—whether national or supranational—across national or regional borders. The focus is properly on the awareness of each other’s decisions but with no formal requirement to follow or even to take account of each other’s case-law. Moreover these courts are unlikely to make express reference to or acknowledgement of the fruits of the transjudicial communication by actual citation to another court’s decisions. This is true between the constitutional courts of the EU Member States in their development of the relationship between EU law and national law although there are examples of judicial pronouncements which refer to the decisions of other constitutional courts—the Italian Constitutional Court in Granital referred especially to FCC practice in this field.123 In fact, it could be argued that these two courts often act like ‘Tweedle Dum and Tweedle Dee’ in the face of EU integration! Vertical communication occurs between national and supranational courts, the most developed form of this having emerged between the ECJ and national courts. This experience led, as discussed above, to the ECJ ‘negotiating’ the creation of a constitution for the EC/EU through ‘dialogue’ with national courts, whether constitutional or ordinary. The part of the national constitutional justices in this dialogue is the subject of much of this book. Lastly, mixed transjudicial communication brings together both horizontal and vertical forms. The ECJ participates in this type of communication since it can also serve as a medium for horizontal communication, either as a stimulus or as a

121 A. Brudner, Constitutional Goods, OUP, Oxford (2004), at viii. 122 A.-M. Slaughter, “A Typology of Transjudicial Communication” (1994) 29 U. Rich. L Rev. 99, at 103–112. 123 See below at Chapter Three, point E.2.a.

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conduit for cross-fertilisation of ideas and concepts between national legal systems.124 2. Reception of Constitutional Concepts Mediated Through Constitutional Court Jurisprudence a. Brief Overview of the Theoretical Comparative Context of Reception and Transfer The debate on the use of foreign law by judges of other legal systems, particularly its transfer and reception,125 was ignited by the seminal work of Watson126 and his arguments surrounding the concept of ‘legal transplantation.’ Essentially, Watson claims that legal transplants move or transfer a rule or a system of law from one country to another and is based on diffusion according to which most changes in most legal systems occur as the result of borrowing. He further contends that widespread transfer indicates an absence of an intimate link between law and the broader society. Lastly, Watson champions the study of transplants to guide the study of comparative law. His position is in essence rejected by Legrand—who, as we have already seen, is a strong proponent of the unique nationality of each legal system.127 He challenges Watson’s claims as based on an erroneous concept of a legal rule which is not a mere propositional statement but rather—128 an incorporative cultural form … buttressed by important historical and ideological formations. A rule does not have any empirical existence that can be significantly detached from the world of meanings that defines a legal culture; the part is an expression and a synthesis of the whole: it resonates.

According to Legrand, then, interpretation of a legal rule is the result of a particular understanding of that rule which is influenced by a series of factors which would differ if such interpretation had occurred in another place or era.129 Consequently, a legal rule130 comprises “both the propositional statement as such and its invested meaning—which jointly constitute the rule.” In ‘transplanting’ a legal rule as Legrand understands it, it becomes a different rule since it will be 124 For example, the German constitutional principle of proportionality was adopted by the ECJ and thereby transplanted by judicial decision-making into the ‘alien soil’ of the English common-law system: G. de Búrca, “The Principle of Proportionality and its Application in EC Law” (1993) 12 YBEL 105. 125 J.M. Smits, “Comparative Law and its Influence on National Legal Systems,” in M. Reimann & R. Zimmermann (eds.), The Oxford Handbook of Comparative Law, OUP, Oxford (2006), 477–512. 126 A. Watson, Legal Transplants: An Approach to Comparative Law, Scottish Academic Press, Edinburgh (1974). 127 See above at Chapter One, point B.2.a. 128 P. Legrand, “What ‘Legal Transplants’?,” in D. Nelken & J. Feerst (eds.), Adapting Legal Cultures, Hart Publishing, Oxford (2001), chap. 2, 55, at 59. 129 Ibid., at 58. 130 Ibid., at 60.

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understood differently by the host culture and would be given a cultural-specific meaning different to its original one.131 As such, Legrand concludes, legal transplants are impossible.132 Into this mêlée of diverse opinion, Whitman adds a timely word of caution and moderation:133 [W]e must be careful not to slip into the error of believing that legal practices can be so rooted in their ‘cultures’ that they can never be transplanted … [I]n raising doubts about ‘transplantation’ of legal institutions, we run the risk of neglecting what is unquestionably a fundamentally important issue: legal systems do permit transcultural discussion and transcultural change. Indeed, they undergo transcultural change all the time. [Emphasis in original.]

While acknowledging that legal rules change as they migrate, Whitman rejects Legrand’s bald assertion that legal transplants are logically impossible and concludes:134 “some kind of borrowing is surely taking place and we need some account of what is going on.” Nelken also notes135 “that legal transfers are possible, are taking place, have taken place and will take place.” He readily acknowledges, as will be attested to in this book, that legal transplants are often deliberately sought after by the recipient legal order with countries (and judges) in constitutional transitions often looking to comparative constitutional materials as engines for domestic constitutional change.136 The inadequacies and divisiveness of the ‘legal transplants’ concept in comparative law is matched by its counterpart in comparative constitutional law: ‘constitutional borrowing.’ Choudhry137 clearly acknowledges the impossibility and illegitimacy of constitutional borrowing as a general matter and that it fails to capture the full range of uses to which comparative constitutional materials are put. Bell has considered that ‘cross-fertilisation’ would be the preferred term, implying a more indirect process to transplantation, namely that138— an external stimulus promotes an evolution within the receiving legal system. The evolution involves an internal adaptation by the receiving legal system in its own way. The new development is a distinctive but organic product of that system rather

131 Ibid., at 60. 132 Ibid., at 57. 133 J. Whitman, “The Neo-romantic Turn,” in P. Legrand & R. Munday (eds.), Comparative Legal Studies: Traditions and Transitions, CUP, Cambridge (2003), chap. 10, 312, at 341–342. 134 Whitman (2003), at 342. Emphasis in original. 135 D. Nelken, “Comparatists and Transferability,” in P. Legrand & R. Munday (eds.), Comparative Legal Studies: Traditions and Transitions, CUP, Cambridge (2003), chap. 12, 437, at 443. 136 Ibid., at 443. 137 S. Choudhry, “Migration as a new metaphor in comparative constitutional law,” in S. Choudhry (ed.), The Migration of Constitutional Ideas, CUP, Cambridge (2007), chap. 1, 1, at 20. 138 Bell (1998), at 153.

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In his search for a better term, Choudhry139 settles on the ‘migration of constitutional ideas’ which encompasses a much broader range of relationships between the recipient jurisdiction and constitutional ideas. Walker has summarised the benefits of this migration metaphor:140 Migration … is a helpfully ecumenical concept in the context of the inter-state movement of constitutional ideas [and] presumes nothing about the attitudes of the giver or the recipient, or about the properties or fate of the legal objects transferred. Rather … it refers to all movements across systems, overt or covert, episodic or incremental, planned or evolved, initiated by giver or receiver, accepted or rejected, adopted or adapted, concerned with substantive doctrine or with institutional design or some more abstract or intangible constitutional sensibility or ethos.

Indeed Walker’s work on such migration in the EU is a timely contribution to the debate on transjudicial communication and the use of comparative constitutional law in the Union, particularly by the ECJ. b. Reception and Transfer Through Judicial Decision-making Smith has noted141 that constitutions primarily depend on national phenomena and culture, and that judicial borrowings from other systems may upset the delicate balance of a particular national constitution. Indeed, with respect to the US Constitution, Alford has noted:142 “Using global opinions as a means of constitutional interpretation dramatically undermines sovereignty by utilizing one vehicle—constitutional supremacy—that can trump the democratic will.” The use of non-domestic constitutional and other legal sources lacks any democratic origin in the recipient constitutional system: such sources enjoy no democratic connection to the recipient system and they thus are not democratically accountable as constitutional or legal sources in that system. ‘Judicial borrowings,’ as noted earlier, may be achieved either through ‘transplantation,’ ‘cross-fertilisation’143 or, as more recently argued, ‘migration.’144 In 139 Choudhry (2007), at 21. 140 N. Walker, “The migration of constitutional ideas and the migration of the constitutional idea: the case of the EU,” in S. Choudhry (ed.), The Migration of Constitutional Ideas, CUP, Cambridge (2007), chap. 12, 316, at 320–321. Footnote omitted. 141 Smith (1998), at 101–102. 142 R. Alford, “Misusing International Sources to Interpret the Constitution” (2004) 98 AJIL 57, at 59. 143 J. Bell, “Mechanisms for Cross-fertilisation of Administrative Law in Europe,” chap. 11, 147, at 156, and J. Allison, “Transplantation and Cross-fertilisation,” chap. 12, 169, at 170–176, both in J. Beatson & T. Tridimas (eds.), New Dimensions in European Public Law, Hart Publishing, Oxford (1998). 144 For the advantages of the migration metaphor, see generally K. Lane Scheppele, “The migration of anti-constitutional ideas: the post-9/11 globalization of public law and the international state of emergency,” in S. Choudhry (ed.), The Migration of Constitutional Ideas, CUP, Cambridge (2007), chap. 13, 347–373.

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view of heightened national constitutional sensitivities, cross-fertilisation and migration would be the more acceptable approaches used by the constitutional courts in opening and adapting their systems to ever newer legal realities. For such systems, comparative engagement leads to an increased sense of legal awareness through interpretive clarification and confrontation.145 Bell146 and Markesinis147 have remarked that EU law and the case-law of both the ECJ and the ECtHR have provided common points of reference outside the national tradition and created a common dynamic of policy development and of standards: a process of common judicial development has thus emerged. True, the ECHR and the judgments of the ECtHR have acted as catalysts for change in all systems. Yet they set minimum standards only and have, before constitutional courts, been used—for the most part—merely as supporting arguments for a decision rather than the basis for the decision per se.148 The position of constitutional courts with respect to EU law and ECJ rulings is even more marked. What Mayer149 regards as particularly threatening for legal unity and the uniform interpretation of EU law in the case-law of the highest courts and tribunals is the phenomenon of interpreting EU law from the perspective of the national constitutional order. This, he claims, generates a parallel version of EU law (a sort of constitutional law-version of EU law); moreover, the power to engage in an autonomous parallel interpretation of EU law compatible with the respective constitutions (thereby doubling the standard of scrutiny) has already been claimed by various constitutional courts. In fact, considering the constitutional law framework and the case-law of these courts, it remains a possibility for some domestic constitutional courts to develop a case-law resembling the FCC in Maastricht. He then notes that the emphasis on elements of the national constitutional order that are unalterable, thus ‘supremacy-proof’ and the autonomous interpretation of EU law by Member State courts could lead to results diverging from the ECJ’s findings. In other words, what Dubos previously noted as the emergence of a ‘parallel interpretation’ or ‘constitutional law versions of European law.’150

145 Choudhry (2007), at 23. 146 Bell (1998), at 165. 147 B. Markesinis, The Gradual Convergence, OUP, Oxford (1994), at 21. 148 See generally A. Drzemczewski, European Human Rights Convention in Domestic Law: A Comparative Study, Clarendon Press, Oxford (1983), chap. 4; and R. Blackburn & J. Polakiewicz (eds.), Fundamental Rights in Europe: The Effect of the ECHR on the Legal and Political Systems of Member States, OUP, Oxford (2001). 149 F. Mayer, “The European Constitution and the Courts: Adjudicating European constitutional law in a multilevel system,” in A. von Bogdandy, “European Integration: The New German Scholarship,” Jean Monnet Working Paper 9/03, at 19–20. Available at: . Accessed 18 June 2005. 150 O. Dubos, Les juridictions nationales, juge communautaire: contribution à l’étude des transformations de la fonction juridictionnelle dans les États membres de l’Union européenne, Dalloz, Paris (2001), at 857ff.

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How can this assessment square with the idea that the constitutional courts are mediating the position of EU law in their national systems? The answer is complex. c. The Practice of Constitutional Migration and Transjudicial Communication At one level, the essential core of sovereignty level, the mediation has been conducted on the basis, ostensibly, of the Kooperationsverhältnis (‘relationship of co-operation’) of the German Federal Constitutional Court and, more deeply, on watching what other courts are doing in response to the pressures of EU integration.151 But on another level and in other areas not constituting the essential core of sovereignty, constitutional courts have been open to using EU law and ECJ rulings to support their reasoning.152 Alter’s research into explaining why national judiciaries accepted the supremacy of EU law over national law is enlightening.153 She notes154 that national courts in her study—France, Germany and Italy—accommodated EU law by choosing to change national doctrine to be compatible with EU law supremacy while still rejecting the notion that the Treaties (now TEU and TFEU) had created a new type of legal obligation. Alter prefers the concept of ‘doctrinal negotiation’ to ‘legal dialoguing’ since negotiations imply competing interests where parties recognise that they may not be able ‘to have it as they most like it’: negotiations lead to compromises that take into account the power of negotiating parties, the conflicting interests of the different actors, and the intensity of those interests. Such descriptions of ‘negotiated compromises’ are typical of multi-layered systems. She continues:155 Since the ECJ, national judges, and member states agree that a compromise is better than legal anarchy, each was willing to walk away from their most preferred positions. The ECJ ended up accepting that as far as national judges are concerned, there are limits to the supremacy of European law. National judges ended up changing existing doctrine, and ceding significant legal authority to the ECJ. And member states ended up accepting a significant compromise of national sovereignty. [Emphasis supplied.]

151 This is often seen as one of the main reasons why both Sweden and the United Kingdom have introduced Supreme Courts: House of Lords, European Union Committee, Law and Institutions (Sub-Committee E), “Future role of the European Court of Justice,” EU Sixth Report, Session 2003– 2004, 15 March 2004, chap. 3(2), at paras. 90–91. Available at: . Accessed 10 January 2009. 152 The Austrian Constitutional Court, in the Telecom Control Commission case (VfGH B 1625/98, 24 Februar 1999, VfSlg. 15427), actually held that the directly effective provision of a Directive rendered Constitution Art. 133(4) no longer applicable. 153 K. Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe, OUP, Oxford (2001). 154 Ibid., at 36–37. 155 Ibid., at 38.

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Shapiro has argued156 that applying law means enforcing the interests of the central state over individual actors and subnational agencies and promoting a statedefined hierarchy of values. Political interests are accordingly inherent in the legal process. But Alter goes further,157 identifying that, as a group, judges share certain interests, primarily in the promotion of their independence, influence, and authority. Using her analysis, the situation is even more stark with respect to the small clique of constitutional justices: in protecting their legal autonomy from political bodies, they want freedom to decide a case in the way they regard as appropriate; and in promoting their ability to decide cases, they seek to influence policy, political debate, and the development of legal doctrine, having their interpretation accepted by other judicial and political actors—whether other courts, the executive or legislature as well as other public bodies and agencies. One peculiarity of constitutional court justices—that greatly influences their attitude in such cases to EU law and to national constitutional law—is their academic and professional backgrounds, being largely drawn from beyond the ordinary judiciary.158 The traditional ethos of the regular, continental judiciary has usually been described as ‘positivist,’ bound as it is to notions of judges as civil servants, and with it legislative supremacy and the separation of law and politics.159 In contrast, the basic Kelsenian model160 for constitutional courts saw them populated by law professors and excluded the participation of the ordinary judges.161 Recruitment to European constitutional courts, whether in the 1920s, late 1940s/1950s, or 1990s, came predominantly from legal academics. The reasons for this were outlined by Ferejohn:162 One thing that post-authoritarian systems have in common is that the judges that are still on the bench are implicated, to some extent, in the practices of the previous regime. The citizenry in such circumstances have every sociological reason to be

156 M. Shapiro, Courts: A Comparative Political Analysis, University of Chicago Press, Chicago (1981), at 26–27. 157 Alter (2001), at 45. 158 Other factors which may have a bearing on their choices are their selection on a partisan basis and their generally only limited tenure: P. Magalhães, “Judicial Behavior in Constitutional Courts: The Case of Portugal,” paper presented at the Annual Conference on the Scientific Study of Judicial Politics, Michigan State University, East Lansing, 4 October 1998, at 11–17 and 20–25. 159 For example, M. Cappelletti & D. Golay, “Judicial Review, Transnational and Federal: Its Impact on Integration” (1981) EUI Working Paper No. 4, European University Institute, Florence; and L. Favoureau, “Modèle americain et modèle européen de justice constitutionnelle” (1988) 4 AIJC 51. 160 For further consideration of this model, see below Chapter Two, point A. 161 P. Pasquino, “Gardien de la constitution ou justice constitutionnelle? C. Schmitt et H. Kelsen,” in M. Troper & L. Jaume (eds.), 1789 et l’invention de la Constitution, LGDJ, Paris and Bruylant, Brussels (1994), 141. Interestingly, the Austrian Constitution – under Art. 147(2) – requires that a number of justices be recruited from among the regular judiciary. 162 J. Ferejohn, “Constitutional Review in the Global Context” (2002) 6 Legislation and Public Policy 49, at 51.

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chapter one suspicious of how those officials would go about their business. In other words, there exists a characteristic circumstance of distrust arising naturally in post-authoritarian settings, and that is distrust of the lawmakers as well of the judges. In such circumstances, there is a natural desire to place both the positive lawmakers and the law enforcers under constitutional control.

The answer to the question of how to achieve this was given by Kelsen when he drew up his concept of a constitutional court of professors.163 This model has been used extensively, inter alia, in Central Europe though its evident utility may be challenged: thus, where there is a large pool of expert academics from which to select constitutional justices or where there is an established tradition in constitutional scholarship then the political actors, responsible for selecting such judges, have a much better chance of choosing the best candidates than those states which have a radically smaller pool of constitutional experts or who lack a tradition in constitutional scholarship. One further impact on cross-fertilisation or migration, facilitating the transfers of concepts, is language knowledge. The predominance of English, French and German as the main foreign languages of constitutional courts (regrettably, only based on the author’s own anecdotal evidence and experience) has given decisions and concepts from jurisdictions using such languages a more predominant influence in other EU Member States. This language competence, coupled with legal study abroad, and the creation of courts based on a particular national model, have given a striking importance to German constitutional law and theory in Central Europe.164 The approach of constitutional justices to European integration, with their ‘protection’ of the ‘independence’ of the national legal order, notably in respect of the essential core of national sovereignty, is the focus of later Chapters. Nevertheless, it would be correct to observe that these are problems to which, at this time, there may be no viable solutions. In this context, it is interesting to note the remarks of Poiares Maduro in a review article,165 in which the writer—an exponent of the legal pluralist viewpoint to European integration (to which discourse the present study will return in the Conclusion)—advocated the integration of national deviations from European law within the EU legal order. This latter order would be viewed as integrating the claims of validity of both national and European constitutional law. He noted that any national court decision, even opposing EU law, not only represented a national deviation from the uniform 163 H. Kelsen, “Judicial review of Legislation: A Comparative Study of the Austrian and the American Constitution” (1942) 4 J. Pol. 183, at 185–186. 164 In this respect, see e.g., C. Dupré, Importing the Law in Post-Communist Transitions: The Hungarian Constitutional Court and the Right to Human Dignity, Hart Publishing, Oxford (2003). 165 M. Poiares Maduro, “The Heteronyms of European Law” (1999) 5 ELJ 160, at 167, an article reviewing D. Rossa Phelan, Revolt or Revolution: The Constitutional Boundaries of the European Community, Sweet & Maxwell, London (1997).

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application of EU law but also established, simultaneously, a new principle in the interpretation and application of the EU legal order. He subsequently stated:166 If a national constitutional court is aware that the decision that it will take becomes part of European law as interpreted by the “community” of national courts, it will internalise in its decisions the consequences in future cases and the system as a whole. It will prevent national courts from using the autonomy of their legal system as a form of evasion and free-riding and will engage the different national courts and the ECJ in a true discourse and coherent construction of the EU pluralist legal order.

Such reasoning highlights the point that has already been reached, namely the way in which judgments of national (particularly superior or constitutional) courts in the field of EU law impact on their colleagues in other jurisdictions, operating forms of transjudicial communication to provide cross-fertilisation or migration of constitutional judicial concepts of the essential core of sovereignty. D. Conclusion This Chapter has sought to focus on the context within which Central European constitutional justices operate in making choices as to their approaches to EU integration. Having examined the process by which the ECJ constitutionalised the legal order created under the Treaties as well as having reiterated the need for a national constitutional basis for integration, the study then looked at the context of the conflict between the ECJ and the national constitutional judiciaries in the birth of the new European constitutional order. The national constitutional judiciary is evidently caught in a quandary between upholding the domestic constitutional orders that they have sworn to do on taking office and complying with the requirements of Union loyalty, i.e., recognising the reality of the primacy of EU law as elaborated by the ECJ as an integral and vital part of the European constitutional order, a matter now somewhat more starkly juxtaposed in the actual wording of Art. 4(2) and (3) TEU. As defenders of the individuality of national constitutions—as the unique expression of a people’s sovereign will—it may seem at first sight that constitutional justices would not be open to any form of accommodation to the ECJ position. However, the constitutional courts are deliberative institutions, forums of and conduits for transjudicial communication, thereby susceptible to looking at others’ systems for inspiration and guidance in articulating their own case-law. This openness to judicial borrowings, transplants, cross-fertilisation or migrations of constitutional ideas—a definite hallmark of European constitutional jurisdictions—has afforded the basis of an evolving (though still far from perfect) dialogue between the ECJ

166 Poiares Maduro (1999), at 167.

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and national constitutional courts and between national constitutional courts inter se as they participate in a matter of cross-constitutional dialogue in the face of deepening EU integration. The three central Chapters—on the constitutional courts in Germany, Hungary and Poland, and their responses to EU law—attempt to examine that dialogue. The emphasis in the next Chapter, however, will be on the German model as exerting a strong influence or having a deep impact on the laws and legal systems of the two Central European States. The Conclusion will acknowledge that although national constitutional court judges may be considered as too staunch defenders and preservers of domestic constitutional identity in the face of an ever increasingly integrated Europe, such attitude may be revised in the context of plurilevel constitutional adjudication through a dialogue with the ECJ and allow them to begin, somewhat grudgingly, to accept EU integration as part and parcel of their decision-making.167

167 Even the 2009 decision of the FCC in Lisbon could be viewed as another step in this process.

CHAPTER TWO

THE PREDOMINANCE OF THE GERMAN MODEL IN CENTRAL EUROPE: MIGRATIONS OF LEGAL AND CONSTITUTIONAL IDEAS Background The bilateral processes of rule and experience transfer between sending State and recipient are paradigms of legal transplants, legal migrations or cross-fertilisations as discussed above in Chapter One.1 The matter that gives this book its interest is the way in which the German model described in the succeeding Chapter has acted as the main potential mediating influence on the Hungarian and Polish constitutional courts in the development of their own responses to the implications of EU accession. This Chapter seeks to set out the reasons why the present author argues that the German legal system in general and its constitutional jurisdiction in particular exert such a strong pull on the constitutional courts in Hungary and Poland. In order to demonstrate this argument, it is necessary to explain briefly, first, the breadth of legal models present in the Union with respect to national superior courts’ approaches to EU integration; and, secondly, the group of courts which may be regarded as especially relevant in attempting to choose the dominant model for emulation for the Hungarian and Polish constitutional tribunals. Based on these justifications, the author chooses the German constitutional model vis-à-vis EU integration (see below Section A). Nevertheless, it is apposite to provide a fuller reasoning for selection of the German model as worthy of emulation in Central Europe. These reasons encompass a variety of matters from historical and legal cultural affinities to the migration of constitutional ideas from Germany to Central Europe in the period of transition in the early 1990s (see below Section B).2 All in all, the analysis is able to indicate that the overwhelming attraction of the German constitutional judicial approach to EU integration, as expressed by the Central European constitutional courts in this book, would in any case have proved to be difficult to resist.

1 See above at Chapter One, point C.2. 2 See generally, S. Wood, Germany and East-Central Europe. Political, Economic and Socio-Cultural Relations in the Era of EU Enlargement, Ashgate, Aldershot (2004).

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chapter two A. Relevant Legal Models for Central Europe 1. Introduction

The pre-2004 accession EU Member States exhibited not only a diversity of legal and political systems but also a broad kaleidoscopic spectrum of national (constitutional) judicial attitudes to EU law.3 A detailed discussion of these different judicial responses to the constitutionalisation of EU law is beyond the scope of the present work.4 Nevertheless, they represent—in the majority of cases—serious attempts by domestic judiciaries to accommodate the requirements of EU law with the demands of their own constitutional and legal systems. The spectrum may be said to be represented at its Europhile end by the superior courts of the Benelux states5 and at its Eurosceptic end by the Danish Supreme Court,6 with the remaining higher-level courts occupying various points in between. A choice had to be made in order to reduce the ambit of the preliminary Chapters, before proceeding to examine in more detail the situations in Hungary and Poland. The test adopted to find ‘the right institutional and legal fit’ was broadly a two-stage one and focused on the constitutional courts of these two Central European states: (1) similarity in constitutional court models, being a constitutional and jurisdictional test; and

3 On the broad spectrum of attitudes across national supreme and constitutional courts, see M. Claes, The National Courts’ Mandates in the European Constitution, Hart Publishing, Oxford and Portland (OR) (2006), at 214–245. 4 For useful analyses, the reader is referred to B. de Witte, “Direct effect, supremacy, and the nature of the legal order,” in P. Craig & G. de Búrca, Evolution of EU Law, 2nd ed., OUP, Oxford (2011), chap. 12, 323–362; J. Rideau (ed.), Les Etats membres de l’Union européenne. Adaptations – Mutations – Résistances, L.G.D.J., Paris (1997); A.M. Slaughter, A. Stone Sweet & J.H.H. Weiler (eds.), The European Court and National Courts – Doctrine and Jurisprudence: Legal Change in its Social Context, Hart Publishing, Oxford (1998). 5 On Belgium, see H. Bribosia, “Report on Belgium,” in Slaughter, Stone Sweet & Weiler (1998), chap. 1, 1–39; H. Bribosia, “Applicabilité directe et primauté des traités internationaux et du droit communautaire – Réflexions générales sur le point de vue de l’ordre juridique belge” 1996 RBDI 1. On The Netherlands, see M. Claes & B. de Witte, “Report on the Netherlands,” in Slaughter, Stone Sweet & Weiler (1998), chap. 6, 171ff; and A. Kellerman, “Supremacy of Community law in the Netherlands” (1989) 14 EL Rev. 175. On Luxembourg, M. Thewes, “La constitution luxembourgeoise et l’Europe” (1992) 2 Annales de droit luxembourgeois 65; and E. Arendt, “Le traité de l’Union européenne et la Constitution du Grand-duché de Luxembourg” (1992) 2 Annales de droit luxembourgeois 35. 6 Højesteret (Danish Supreme Court), 6 April 1998, Case I 361/1997, Carlsen v. Rasmussen [1999] 3 CMLR 854; and K. Høegh, “The Danish Maastricht Judgment” (1999) 24 EL Rev. 80.

the predominance of the german model43 (2) similarity in approach to EU law, being more of a legal influences and judicial cultural affinity test. 2. Choice of National Constitutional Courts

The choice of country was initially dictated by the similarity to the type of domestic constitutional review system which exists in Hungary and Poland. Saiz Arnaiz observed that7 two main constitutional review systems are present in Europe: the European, also known as the Kelsenian or concentrated system, and the American, or diffuse system. In the former, review can only be performed by the constitutional court whose decision to annul a provision as unconstitutional has a general effect as a sort of negative legislation. In the latter, judicial review is at the discretion of each judge and tribunal whose decision only affects the parties to the case. In the Member States of the EU, some have chosen the diffuse system (Denmark, Greece and Sweden), while some have a mixture of concentrated and diffuse (Ireland and Portugal). Accordingly, before the 2004 EU enlargement, only Austria, Belgium, France, Germany, Italy, and Spain could be said to adhere to the Kelsenian notion of judicial review.8 Since the constitutional courts of Hungary and Poland (whose practice forms the basis of this study) belong to the concentrated system of review, it was necessary to focus the preliminary investigations on the models which have proved to be the most influential in directing these courts in their approaches to EU law. 3. Choice of Approach to EU Law Having selected the Kelsenian group of constitutional tribunals, the initial research then commenced into the importance of each of these national constitutional models in guiding their Hungarian and Polish counterparts in their approaches to EU law.

7 A. Saiz Arnaiz, “Constitutional Jurisdiction in Europe: Between Law and Politics” (1999) 6 MJ 111, at 111–113. 8 For general overviews of constitutional review in Europe, see C. Grewe & H. Ruiz Fabri, Droits constitutionnels européens, Presses universitaires de France, Paris (1995), at 66–100; and D. Rousseau, La justice constitutionnelle en Europe, Montchrestien, Paris (1998).

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The focus on the various constitutional judicial institutions—Austria,9 Belgium,10 France,11 Germany, Italy12 and Spain13—allowed for an examination of the way in which each developed their ideas on an essential core of sovereignty vis-à-vis EU law.14 Through this preliminary study of West European constitutional case-law in the field of European integration, both academic writings and preaccession judgments of constitutional tribunals in Hungary and Poland led to the formulation of the hypothesis that the German model would probably be most influential.

9 I. Seidl-Hohenveldern, “Constitutional Problems involved in Austria’s Accession to the EU” (1995) 32 CML Rev. 727; Th. Öhlinger, “Die Transformation der Verfassung: Die Staatliche Verfassung und die Europäische Integration” (2002) 124 JBl. 2; T. Schilling, “Anwendungsvorrang des Gemeinschaftsrechts” 1999 EuZW 407; and A. Posch, Vorrang des Gemeinschaftsrecht vor Verfassungsrecht, Jan Sramek Verlag, Wien (2010). 10 The former Cour d’arbitrage (established in 1980 with constitutional jurisdiction) indicated its intention to enforce the primacy of the Constitution over treaties, at least to the extent of its reference standards: Scola europae v. Hermans, CA 3 février 1994, Arrêt no. 12/94: Moniteur belge 6137; Van Damme v. Procureur général près la Cour d’appel d’Anvers, CA 26 avril 1994, Arrêt no. 33/94: Moniteur belge 17034. In addition, it became the first national court enjoying constitutional jurisdiction to make a reference to the ECJ (Re a.s.b.l. Fédération belge des chambres syndicales de médecins, CA 19 février 1997, Arrêt no. 6/97: Moniteur belge 4456). The Cour d’arbitrage was redesignated the Belgian Constitutional Court in 2007 and has become an active proponent of judicial dialogue with the ECJ: E. Cloots, “Germs of pluralist judicial adjudication: Advocaten voor de Wereld and other references from the Belgian Constitutional Court” (2010) 47 CML Rev. 645. 11 L. Favoreu, “Le contrôle de constitutionnalité du Traité de Maastricht et le développement du ‘droit constitutionnel international’” RGDIP.1993.39; B. Genevois, “Le Traité sur l’Union européenne et la Constitution” RFDA.1992.374; B. Genevois “Traité sur l’Union européenne II: Note” RFDA.1992.937; F. Luchaire, “Le Traité d’Amsterdam et la Constitution” RDP.1998.332; S. Wright, “The French Conseil Constitutionnel: International Concerns” (1999) 5 EPL 199 ; and J. Dutheil de la Rochère, “French Conseil constitutionnel: Recent Developments,” in J.M. Beneyto & I. Pernice (eds.), Europe’s Constitutional Challenges in the Light of the Recent Case Law of National Constitutional Courts. Lisbon and Beyond, Nomos, Baden-Baden (2011), 17–30. 12 A. Adinolfi, “The Judicial Application of Community Law in Italy (1981–1997)” (1998) 35 CML Rev. 1313; M. Cartabia & J.H.H. Weiler, L’Italia in Europa. Profili istituzionali e costituzionali, il Mulino, Bologna (2000); F.P. Ruggeri Laderchi, “Report on Italy,” in Slaughter, Stone Sweet & Weiler (1998), chap. 5 ; and R. Miccú, “Toward a (Real) Cooperative Constitutionalism? New Perspectives on the Italian Constitutional Court,” in J.M. Beneyto & I. Pernice (eds.), Europe’s Constitutional Challenges in the Light of the Recent Case Law of National Constitutional Courts. Lisbon and Beyond, Nomos, BadenBaden (2011), 109–130. 13 E. García de Enterría & R. Alonso García, “Spanish report,” in J. Schwarze, The Birth of a European Constitutional Order: The Interaction of National and European Constitutional Law, Vol. 249 Schriftenreihe Europäisches Recht, Politik und Wirtschaft, Nomos Verlagsgesellschaft, Baden-Baden (2001), 287; D.J. Liñán Nogueras & J. Roldán Barbero, “The Judicial Application of Community Law in Spain” (1993) 30 CML Rev. 1135; and A. López-Pina, “The Spanish Constitutional Court, the European Law and the Constitutional Traditions Common to the Member States (art. 6.3 TEU). Lisbon and Beyond,” in J.M. Beneyto & I. Pernice (eds.), Europe’s Constitutional Challenges in the Light of the Recent Case Law of National Constitutional Courts. Lisbon and Beyond, Nomos, Baden-Baden (2011), 137–165. 14 See generally, F.G. Jacobs, “The Constitutional Impact of the Forthcoming Enlargement of the EU: What can be learnt from the experience of the existing Member States?” in A. Kellerman et al. (eds.), EU Enlargement: The Constitutional Impact at EU and National Level, T.M.C. Asser Instituut, Deventer and The Hague (2001), 183ff.

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Since accession in 2004, this hypothesis has proved to be correct and, accordingly, the next Chapter will set out the basic contents of the German model before proceeding to a deeper analysis of and focus on Hungary and Poland. However, it is necessary to explain first in more detail why the German model plays such an important role for the more recent constitutional tribunals in Hungary and Poland, to which issue the Chapter now turns. B. Relevancy of the German Model in Central Europe 1. Introduction In their respective works, Kokott15 and Dupré16 have each presented their ideas on why the Central European courts have been influenced by their German counterpart in developing their case-law in the post-communist era. It is my intention here to outline the points that sustain this approach but by increasing the remit somewhat. The areas of influence or contrast may be determined in the following manner: 1. Historic and legal cultural affinities; 2. Linguistic ability and intellectual stimulus; 3. Constitution and constitutional jurisdiction formation in the post-communist era; and 4. Resultant influences on constitutional judicial practice. These different areas will now be addressed in turn, by focusing on the particular points of reference which illustrate the strength of the connections between the Austro-German systems and those in Central Europe. 2. Historic and Legal Cultural Affinities Despite the fact that Germany did not exist as a political entity until 1871 and Poland did not reappear on the map of Europe till 1918, the influence of laws from the areas now covered by Germany on those of Hungary and Poland law has a long progeny.

15 J. Kokott, “From Reception and Transplantation to Convergence of Constitutional Models in the Age of Globalization – with Special Reference to the German Basic Law,” in Ch. Starck (ed.), Constitutionalism, Universalism and Democracy – a comparative analysis, Nomos Verlag, BadenBaden (1999), section 4, 71. 16 C. Dupré, Importing the law in post-Communist transitions: the Hungarian Constitutional Court and the right to human dignity, Hart Publishing, Oxford (2003).

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a. Middle Ages As long ago as the medieval period,17 Germanic legal influences on civil and particularly commercial rules in the old kingdoms of Poland18 and Hungary19 was still palpable. In contrast, the field of public law eschewed the practice of German legal influences in the actual guise of Roman law. Both the Polish estates and the Hungarian royal councils of the Middle Ages considered Roman law as the imperial law of the Holy Roman Empire (ius Caesareum) and believed that its reception would promote their kingdoms into becoming German vassals.20 As a result, Roman law spread into these two countries only by means of a slow infiltration.21 For such reasons, the present part of the Chapter will largely concentrate on civil and commercial rules until the end of communism. Bartlett22 highlighted the intrinsic link between language, law and legal language, proposing that linguistic nationalism linked to legal particularity and superiority in Europe’s conquered borderlands—in the present case, the Saxons and Swabians in Poland and Hungary23—were instruments in ensuring successful colonisation in these areas. Such ‘conquests’ were not necessarily military: more often, invitations would be issued by the Polish and Hungarian kings inviting Germanic peoples to settle in certain parts of their territory, either as farmers or as merchants in the towns. The high impact of Germanic law was particularly noticeable in the towns as German merchants—as part of the royal dispensation and as a means of encouraging their settlement—were allowed to retain their personal/ local (Germanic) law. In 1244, for example, King Béla IV of Hungary24 ruled that the Germans who settled in Karpfen (modern Krupina in Slovakia) “are not bound to stand

17 On the political, social and economic background, see the contributions in N. Berend (ed.), The Expansion of Central Europe in the Middle Ages, Ashgate, Aldershot (2012). 18 W. Wasiutyński, “Origins of the Polish Law, Tenth to Fifteenth Centuries,” in W.J. Wagner (ed.), Polish Law Throughout the Ages, Hoover Institution Press, Stanford (CA) (1970), 39–62. 19 For example, T. Nótári, “Der Einfluss der Lex Baiuvariorum auf die Gesetze König Stephans I.” (2011) 57 OER 423–440. 20 G. Hamza, The Subsequent Fate of Roman Law in a Comparative Legal Approach: Reading Materials, Eotvos University Press, Budapest (2007), at 49. 21 R. Taubenschlag, “Einflüsse des römischen Rechts in Polen” (1962) IRMAE V 8. 22 R. Bartlett, The Making of Europe: Conquest, Colonization and Cultural Change 950–1350, Penguin Books, London (1993), s.v. “Race Relations on the Frontiers of Latin Europe (1): Language and Law,” chap. 8, 197ff. 23 Others include the English in Wales and Ireland: see generally, R. Davies, Domination and Conquest: The Experience of Ireland, Scotland and Wales 1100–1300, CUP, Cambridge (1990); and the Castilians and Aragonese in Moorish Spain: C.J. Bishko, “The Spanish and Portuguese Reconquest, 1095–1492,” in H.W. Hazard (ed.), The Fourteenth and Fifteenth Centuries (1975), 396–456, vol. 3 of K. Setton (ed.), A History of the Crusades, University of Wisconsin Press, Madison (6 vols., 1955–1989). 24 B. Mezey (ed.), Magyar Jogtörténet, 3rd ed., Osiris Kiadó, Budapest (2004), at 44.

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judgment before any judge … except their own particular judge.”25 In the charter for the new town of Kraków, established in 1257 for German burgesses, the application of the Romano-canonical maxim—to wit, all cases in which the German was defendant should be tried before a German judge—was set out:26 Since it is right that the plaintiff should plead in the court of the accused (actor forum rei sequi debeat), we ordain and will that when it happens that a citizen of the said city brings a case against a Pole of the diocese of Cracow, he should pursue his right before a Polish judge; conversely if a Pole brings a case against a citizen, the advocates [of the town] should give judgment and determine the issue.

Nevertheless, there was no German common law at that time: rather separate laws were administered by town or territorial or feudal courts. The major German cities during the Middle Ages were somewhat more open to legal influences from elsewhere. Their law-finders or ‘Schöffen’—the (elected) members of the court—were sometimes great merchants who at least knew other regimes. Further these cities might themselves exercise a wide influence for when new towns were founded in Poland or Hungary, they might take their law en bloc from older cities. Such daughter towns would, through their Schöffen appeal to the mother town for advice.27 Following on from this practice, the great urban constitutions of the German movement to Central and Eastern Europe—for example, the laws of the towns of Lübeck and Magdeburg28—provided the fundamental legal and institutional structure for hundreds of settlements from Narva (Estonia) to Kyiv (Ukraine).29 As a result, for example, the Sachsenspiegel30 (as used in Saxony) came to be used in

25 H. Helbig & L. Weinrich (eds.), Urkunden und erzählende Quellen zur deutschen Ostsiedlung im Mittelalter, 26 Ausgewählte Quellen zur deutschen Geschichte des Mittelalters, Vol. 2, Wissenschaftliche Buchgesellschaft, Darmstadt (1968–1970), No. 138, at 520. 26 Ibid., at 294; Bartlett (1993), at 209–210. 27 O. Robinson, T. Fergus & W. Gordon, European Legal History, 2nd ed., Butterworths, London (1994), at 112 and at 184–188. 28 H. Lück, “Die Verbreitung des Sachsenspiegels und des Magdeburger Rechts in Osteuropa,” in M. Fansa (ed.), Der Sassenspeyguel. Der Sachsenspiegel – Recht – Alltag, Vol. 2, 10 Beihefte der Archäologischen Mitteilungen aus Nordwestdeutschland, Isensee Verlag, Oldenburg (1995), 37ff. Magdeburg law survived in Poland until Napoleonic times and in Kyiv until 1834. It also had an influence on the 1937 Latvian Civil Code. 29 See generally, W. Schlesinger (ed.), Die deutsche Ostsiedlung des Mittelalters als Problem der europäischen Geschichte, 18 Vorträge und Forschungen, Reichenau-Vorträge 1970–1972, Sigmaringen (1975). 30 The Sachsenspiegel was a privately-composed treatise on law (meaning “the Mirror of the Saxons”), composed by Eike von Repgow in the first half of the 13th century. Von Repgow was a Schöffe (or law-finder), a member of the panel of men who made decisions in the Schöffen courts, presided over by a judge (usually the local lord). Originally produced in Latin, von Repgow brought out a Saxon German version which was subsequently translated in to several German dialects: see generally M. Dobozy, The Saxon Mirror. A Sachsenspiegel of the Fourteenth Century, University of Pennsylvania Press, Philadelphia (1999); and F. Ebel (ed.), Sachsenspiegel – Landrecht und Lehnrecht, Reclam, Stuttgart (1993).

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their respective Saxon daughter towns—either re-founded or newly founded—in the Central European kingdoms.31 Another example is the Göttingen codex of Lübeck law which contains the text of the law as sent to Danzig (present-day Gdańsk in Poland) in response to the request of the local (Polish) prince and the city’s German burgesses:32 in order to maintain the consistency of the law and its application, the German burgesses were allowed to retain a right of appeal from the city courts of Danzig to Lübeck, which jurisdiction the German mother city exercised over its daughter towns throughout the Baltic.33 This practice only finally started to decline in the 15th century,34 but such restrictions only became widespread and effective following the end of the Thirty Years’ War in 1648 and the emergence of absolutist government. In this manner, Germanic law and practice of civil and commercial law (i.e., the law merchant35) gradually came to be observed in the Central European region. Even this brief explanation shows a clear link between the German language, Germanic law and local (Polish/Hungarian) reception of such law and were wellestablished notions by the mid-14th century in Central Europe, although such influence did not lead to the overthrow of the independence of the domestic legal systems in Poland and Hungary. Rather German law—as the ‘modern law’ of the time—acted as the conveyor and conduit of new ideas and legal developments in the Central European kingdoms. b. Renaissance With the reception of Roman law in the Holy Roman Empire in the 15th/16th centuries,36 the result of a combination of factors—the political ambitions of 31 E. Wagner, Geschichte der Siebenbürger Sachsen. Ein Überblick, 7th ed., 1 Schriften zur Landes kunde Siebenbürgens, Edition Wort und Welt Verlag, München (1998), at 10; and Mezey (2004), at 41. 32 J. Hach (ed.), Das alte Lübische Recht, Lübeck (1839), reprinted, Scientia Verlag, Aalen (1969), at 185. 33 See generally, W. Ebel (ed.), Lübecker Ratsurteile, Vols. 1–4, Musterschmidt, Göttingen (1955–1967). 34 As early as 1432, the Elector of Saxony forbade any subject to seek legal advice from outside the Duchy. 35 A. Cordes, “Gewinnteilungsprinzipien im hansischen und oberitalienischen Gesellschaftshandel des Spätmittelalters,” in G. Köbler and H. Nehlsen (eds.), Wirkungen europäischer Rechtskultur. Festschrift für Karl Kroeschell zum 70. Geburtstag, Beck, München (1997), 141ff; G. Dilcher “Marktrecht und Kaufmannsrecht im frühen Mittelalter,” in K. Düwel, D. Claude & H. Jankuhn (eds.), Untersuchungen zu Handel und Verkehr der vor- und frühgeschichtlichen Zeit in Mittel- und Nordeuropa: Berichte über die Kolloquien der Kommission für die Altertumskunde Mittel- und Nordeuropas in den Jahren 1980 bis 1983, Part 3, Vandenhoeck & Ruprecht, Göttingen (1985), 392ff; K. Kroeschell, Studien zum frühen und mittelalterlichen deutschen Recht, Duncker & Humblot, Berlin (1995), s.v. “Bemerkungen zum ‘Kaufmannsrecht’ in den ottonisch-salischen Markturkunden,” 381ff; M. Weber, Zur Geschichte der Handelsgesellschaften im Mittelalter. Nach südeuropäischen Quellen, F. Enke, Stuttgart (1889); reprinted, Schippers, Amsterdam (1964). 36 W. Kunkel, “The reception of Roman law in Germany: an interpretation,” in G. Strauss (ed.), Pre-Reformation Germany, Macmillan, London (1972), 263–281; Robinson, Fergus & Gordon (1994), chap. 11, at 188–197.

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emperor and princes, the desire of litigants, the urge towards system whether in general or local legislation, the growth of professional courts, the work of law faculties—gave Germany some type of common law.37 While Hungary and Poland still maintained their independence,38 the systemisation and professionalisation of the legal system in Germany encouraged a growth in legal learning at university law faculties. The existence of these faculties led to a more scientific attitude to law and, beyond accepting individual doctrines of Roman law, German scholars took a structured and analytical approach to the whole discipline. Hungarian and Polish kings sought to emulate their Germanic (and European counterparts) and themselves founded universities and law faculties.39 The influence of academics at universities in the Empire greatly helped to propagate the German approach to Roman law through discourse and exchange with their colleagues in Poland and Hungary:40 where scholars had once travelled to Bologna and Paris, they now travelled in much greater numbers to Kraków and Vienna for their education, due to financial reasons as much as convenience.41 This reinforced a certain stronger Central European identity among faculties. The arrival of Roman law, the ius civile, was later in Poland than in Hungary: the Poles rejected it in the 13th and 14th centuries for political reasons springing from the constant conflicts with the Teutonic Knights (although canon law was fully accepted). Only under the influence of natural law in the 16th century could the Poles take a more favourable attitude to a system they associated with a hostile Holy Roman Empire.42 c. Nineteenth and Early Twentieth Centuries With their loss of independence, both Hungary and Poland came to be largely dominated by the two emergent Germanic powers, Austria and Prussia (post-1870, the core of the German Empire). Legal development in the areas now covered by both Central European states was therefore heavily influenced by those in Austria and Prussia/Germany, most especially in the later 19th century when Hungary regained some semblance of autonomy and after 1918 with Poland’s reconstructed independence.

37 P. Vinogradoff, Roman Law in Medieval Europe, Clarendon Press, Oxford (1929), chap. 5. 38 Hungary effectively lost hers in 1526 after defeat by the Ottoman Turks at the battle of Mohács and Poland’s first partition occurred in 1772, followed by the two further divisions of the country by Austria, Prussia and Russia in 1793 and 1795. 39 Kraków in 1364 and Pécs in 1367. For the beginnings of Hungarian higher education, see A. Csizmadia, A pécsi egyetem a középkorban [The University of Pécs in the Middle Ages], 40 Studia Iuridica Auctoritate Universitatis Pécs Publicata, Tankönyvkiadó, Budapest (1965). 40 Mezey (2004), at 46–54. 41 Hamza (2007), at 59. 42 Robinson, Fergus & Gordon (1994), chap. 7, at 106; W. Saroka, “Main Institutions of the Polish private law, 1400–1795,” in Wagner (1970), 73–95.

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The Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch or ‘ABGB’) of 181143 had an effect in many parts of the non German-speaking parts of the Austrian Empire as the 19th century progressed. Although it was in force in Hungary44 for only a few years—from 1853 to 1861—, even after the collapse of the Austro-Hungarian Monarchy in 1918, the ABGB held on tenaciously in that part of Poland which had been part of the Austrian side of the Dual Monarchy.45 Indeed, it was only after the Second World War that the ABGB was replaced in 1964 by a new socialist civil code in Poland.46 The German Civil Code (Bürgerliches Gesetzbuch or ‘BGB’) of 190047 and German law generally enjoyed greater prestige in Hungary. In 1861, Hungary repealed the Austrian ABGB after having achieved a certain degree of independence within the Monarchy (confirmed in the 1867 Compromise). Hungarian courts thereafter relied increasingly on German law, in addition to old Hungarian customary law and principles of Austrian law.48 German law also provided the basis for a series of statutes on commercial law and civil procedure: Hungarian commercial and company law being originally regulated in the 1875 Commercial Code49 which corresponded for the most part with the main principles of German law.50 Several drafts for a Hungarian Civil Code were based on German law and, although they never actually became law, the domestic courts treated them as if they had been enacted.51 d. The Interwar Period 1920–1940 During this period, the 1875 Hungarian Commercial Code was itself supplemented in 1930 by an Act on Limited Liability Companies52 which again, implemented into domestic law the main German rules on such companies: the provisions

43 K. Zweigert & H. Kötz, An Introduction to Comparative Law, 2nd ed., Clarendon Press, Oxford (1987), Vol. 1, chap. 13, 163ff. 44 Mezey (2004), at 132. 45 Zweigert & Kötz (1987), at 172. 46 Dz.U. 1964, No. 16, Item 93. 47 H. Coing, “Erfahrungen mit einer bürgerlich-rechtlichen Kodifikation in Deutschland” (1982) 81 Zvgl. RW 1; M. John, Politics and the Law in Late Nineteenth Century Germany. The Origins of the Civil Code, OUP, Oxford (1989); Zweigert & Kötz (1987), chap. 12, 149ff. 48 Mezey (2004), at 136–141. 49 1875: XXXVII.t.cz.: Corpus Juris Hungarici. Magyar törvénytár 1875–1876, 120–207. 50 E. Heymann, Das ungarische Privatrecht und der Rechtsausgleich mit Ungarn, Mohr, Tübingen (1917). 51 Gy. Eörsi, “Richterrecht und Gesetzesrecht in Ungarn” (1966) 30 RabelsZ 117; and Mezey (2004), at 169–172. 52 1930: V.t.-c.: Corpus Juris Hungarici. Magyar törvénytár 1930, 118–172.

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of these two legal instruments were only finally repealed—almost without exception53—by the new Civil Code of 1959.54 In addition, the Hungarians enacted their first law in the field of competition55 through the 1923 Act on Unfair Competition56 which closely adhered to the principles and provisions of the German Competition Act of 192357 (although the impetus for such development originated in the latter part of the 19th century in Austria58). Poland returned to existence in 191859 and while the principal influence was originally Austrian law,60 subsequent legislation and drafts of private law statutes paid attention to German law.61 The 1933 Polish Code of Obligations was considerably influenced by the BGB and the ABGB but also by Swiss and to a lesser extent French civil law.62 Further the structure of the 1934 Polish Commercial Code63 as well as numerous provisions were strongly oriented towards the 1897 German Commercial Code and—regarding the provisions on limited liability companies that were also included—on the 1892 German Act on Limited Liability Companies.64 The supplementary regulation of the companies register, likewise closely related to German law, entered into force at the same time as the new Polish Code on Obligations.65

53 L. Vékás, “Privatrecht und Wirtschaftsverfassung in Ungarn,” in P. Schlechtriem (ed.), Privatrecht und Wirtschaftsverfassung, Nomos Verlag, Baden-Baden (1994), 43ff. 54 Act IV of 1959: MK 1959/82. 55 I. Vörös, “Das neue Wettbewerbsgesetz in Ungarn,” in F.-K. Beier, E.-M. Bastian & A. Kur (eds.), Wettbewerbsrecht und Verbraucherschutz in Mittel- und Osteuropa, Carl Heymanns Verlag, Köln, Berlin, Bonn and München (1992), 160ff. 56 1923: V.t.-c.: Corpus Juris Hungarici. Magyar törvénytár 1923, 20–37. 57 D.J. Gerber, Law and Competition in Twentieth Century Europe: Protecting Prometheus, OUP, Oxford (1998), at 69–114. 58 In Austria, a group of scholars and administrators articulated the idea of using law to encourage economic growth and competitiveness, reduce antagonisms between workers and owners and among regional ethnic groups. It would also have given the administrative elite a voice in economic development without giving them excessive opportunities to interfere with business decisionmaking. The proposed legislation was discussed and almost enacted, but political turmoil within the Monarchy in 1897 prevented its enactment: D.J. Gerber, “The Origins of the European Competition Law Tradition in Fin-de-Siècle Austria” (1992) 36 Am. Jo. Leg. Hist. 405. 59 B. Hełczyński, “The Law in the Reborn State,” in Wagner (1970), 139–176. 60 F. Korkisch, “Die Entstehung des österreichischen Allgemeinen Bürgerlichen Gesetzbuches” (1953) 18 RabelsZ 263. 61 F. Korkisch, “Das Privatrecht Ost-Mitteleuropas in rechtsvergleichende Sicht” (1958) 23 RabelsZ 201. 62 E. Gralla, “Kauf und Eigentumsübertragung im polnischen ZGB (Text mit Einführung)” 1995/2 WiRO 59. 63 Dz. U. 1934, No. 57, Item 502, as variously amended. 64 RGBl. 1892, I, 477, last amended by Gesetz vom 31 Juli 2009: BGBl. 2009, I, 2509. 65 Dz. U. 1934, No. 57, Item 503. E. Gralla, Gesellschaftsrecht in Polen: Eine Einführung mit vergleichenden Tabellen, Verlag Jehle Rehm, München (1994), 1ff.

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With few exceptions, these rules were repealed by the 1964 Polish Civil Code66 although this Code (which maintained the unity of civil law during the Communist period) deviated less from the German civil law tradition than was the case, e.g., in Czechoslovakia.67 In the interwar period, Poland also adopted its first Act against Unfair Competition in 192668 which, at that time, was modelled on the corresponding German and French laws. The Polish law mainly served to protect competitors and provided only indirect protection for the consumer in its criminal provisions, e.g., through provisions relating to misleading trade names.69 This brief presentation of the impact of German law models (and, to a lesser extent, Austrian ones) on the civil and commercial legal fields in Poland and Hungary during the Middle Ages as well as the 19th to mid-20th centuries is merely exemplary of the historical and legal cultural affinities between these areas which continue to influence legal developments down to the present day. Such influence would not have been sustained without an openness to language and academic intercourse. 3. Linguistic Ability and Intellectual Stimulus In the previous section, mention has already been made of the direct link between, on the one hand, language knowledge and intellectual stimulus and, on the other hand, the impact of Austro-German legal models in Central Europe. Even though Latin remained the language of learned discussion and debate across Europe long after the Reformation of the 16th century and Roman law the basis of much continental law,70 it was the influence of academics at universities in the Holy Roman Empire who propagated the Austro-German approach to Roman law and its study throughout Central Europe. The learning and approach to legal studies generally, even beyond Roman law, was affirmed by the founding of university law faculties in Central Europe, staffed by both natives and scholars from the Empire whose exchange, studies and discourse were moulded by the Austro-German model. When German replaced Latin as the legal language of the Habsburg Empire in 1784, it was merely confirming ex post facto a change in usage that had already

66 Dz. U. 1964, No. 16, Item 93. 67 P. Hajn, “Die Entwicklung des Zivilsrechts in der Tschechischen Republik,” in P. Schlechtriem (ed.), Privatrecht und Wirtschaftsverfassung, Nomos Verlag, Baden-Baden (1994), 27ff. 68 Dz. U. 1930, No. 56, Item 467. 69 R. Skubisz, “Wettbewerbsrecht in Polen” in Beier, Bastian & Kur (eds.), Wettbewerbsrecht und Verbraucherschutz in Mittel- und Osteuropa, Carl Heymanns Verlag, Köln, Berlin, Bonn and München (1992), 122, at 124ff. 70 H. Coing, “Roman law as the ius commune of the continent” (1973) 89 LQR 505.

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occurred among lawyers and academics.71 German effectively became the lingua franca for practitioners and professors alike throughout the Austro-Hungarian Monarchy, the German Empire as well as the Baltic territories (due to the presence of large numbers of Germans) and the Balkans. In fact, for example, even though Hungarian became the official language of the Kingdom after the 1867 Compromise with Habsburg Austria, the language of the law, its exposition, argumentation and composition remained grounded in German.72 The impact of Soviet influence after 1944/45 and the ubiquitous compulsory Russian-language learning requirement had comparatively little impact in Hungary and Poland in the legal-language sphere when compared with the situations in Bulgaria, the Baltic States, even Czechoslovakia. Nevertheless, Pandectist influences in various civil law codifications could still be observed in Central Europe.73 The continued teaching of Roman law, as part of legal history, may also have played a pivotal role in this.74 With the post-war reconstruction and the revival of academic studies, an avid interest in ‘bourgeois laws’ in Western Europe or America would have been a sure way to loss of position and possible persecution. Instead, accepting the ‘socialist reality’ while exploring the legal past was permitted, if only to reveal ‘bourgeois’ shortcomings and ‘socialist’ progress. In order to visit the best law faculties in Europe in the fields of Roman law and legal history—located in Austria and West Germany—it was necessary to understand German. Moreover, since foreign trade outside COMECON75 assumed an increasing importance to the Central European states in the 1960s and the main trading partners for the European communist states were Austria and West Germany, German reassumed its position as the lingua franca of business and law (if it had ever really lost that position). Only détente and further relaxation allowed the teaching of English, French, etc., to be considered as being useful beyond the requirements of the State.76 At the time of the change of system in the late 1980s, then, the majority of Hungarian and Polish legal academics and practitioners who spoke a ‘Western’ 71 K. Göczi, “Die deutsch-ungarische Rechtsverbindungen von der frühen Neuzeit bis in die Gegenwart: Wissenstransfer, Kodifikationen und Liaisonen” [2000] OER 216. 72 Dupré (2003), at 9. 73 Hamza (2007), at 76–79 and at 85–88. 74 Ibid., at 53–54 and at 64. 75 The acronym of the Council for Mutual Economic Assistance (or ‘CMEA’) founded in 1949 to facilitate and coordinate the economic development of Eastern bloc States. Its original members were the Soviet Union, Bulgaria, Czechoslovakia, Hungary, Poland, and Romania; the German Democratic Republic joined in 1950: A.F. Tatham, Enlargement of the European Union, Kluwer Law International, Alphen aan den Rijn (2009), at 71–76. 76 A.F. Tatham, “The Impact of Training and Language Competence on Judicial Application of EU Law in Hungary” (2012) 18 ELJ 577, at 587.

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language fluently, or well, spoke German. As a result, when those countries and others in Central and Eastern Europe started to re-orient themselves to Western laws and economics, the mediating legal language for most was German. The German legal model, in particular, therefore enjoyed an in-built advantage over other systems and was profoundly influential in the writing of laws for the new democracies and market economies in Hungary and Poland. Such linguistic skills may be regarded as pivotal in the domestic reception of other countries’ laws.77 The reinforcement of the position of German law in Central European constitutional courts is reflected in the distinctive nature of the composition of the new benches in these institutions:78 in post-authoritarian systems where constitutional review is concentrated and abstract, ordinary judges had no special claim to authority. Moreover, because of their authoritarian past, judges in these systems were at least initially distrusted as arbiters of constitutional and democratic values. Thus, in all post-communist systems, law professors tended to occupy many of the seats on the newly-created constitutional courts—untainted by an authoritarian past—together with some judges. In fact this has remained generally the practice until the present day in Hungary and Poland where a majority of academics occupy the bench in constitutional courts. Moreover, as deliberative institutions, professors are perhaps better suited to the atmosphere of argumentative, academic discourse that characterises the formulation of judgments as well as dissenting and concurring opinions. 4. Constitution Drafting and Constitutional Jurisdiction Formation in the Post-Communist Era With the change of system in Central and Eastern Europe, led by Poland and Hungary, the nations seeking to break with their Communist past79 looked to the Western world for models to emulate. Such re-orientation included the search for viable constitutional models that could be successfully adapted to domestic conditions and requirements. Pre-war constitutional systems in Central and Eastern Europe provided a relative paucity of models and experience upon which to construct a new democratic future.80 77 A. Watson, Legal Transplants: An Approach to Comparative Law, Scottish University Press, Edinburgh (1974), at 92–93. 78 J. Ferejohn & P. Pasquino, “Constitutional Courts as Deliberative Institutions: Towards an Institutional Theory of Constitutional Justice,” in W. Sadurski (ed.), Constitutional Justice, East and West. Democratic Legitimacy and Constitutional Courts in Post-Communist Europe in a Comparative Perspective, Kluwer Law International, The Hague (2002), chap. 1, 21, at 31–32. 79 See the contributions in A. Febbrajo & W. Sadurski (eds.), Central and Eastern Europe After Transition. Towards a New Socio-legal Semantics, Ashgate, Aldershot (2010). 80 But see (a) the Austrian Constitutional Court which had its roots in practice and theory dating back to the 19th century: G. Jellinek, Ein Verfassungsgerichtshof für Österreich, Alfred Hölder, Wien (1885). In the course of his work of drafting the 1920 Constitution for Austria, Kelsen furnished a synthesis of the various ideas on constitutional jurisdiction which led to the creation

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As a result, constitutional (re-) construction started from scratch, engendering the “complete redefinition of terms of political life and of the conditions under which societies are governed.”81 Indeed, the pull of the old democracies— especially those in Western Europe—was particularly strong and represented for the then emerging democracies workable practices, clear signposts on the road back to Europe. Jens Hesse noted82 that what was of most immediate interest in the democratising countries was the political and constitutional reality in Western democracies—“the success of systems of law and political institutions in ensuring democratic stability and effective government, and thereby maintaining the framework for economic prosperity.” a. Influences on the New Constitutions Ludwikowski83 has discussed the very special ambivalent approach to constitutional drafting in Central Europe. The drafters of these new constitutions had no doubts as to their needing to borrow from the West but they wanted to borrow in their own way: on the one hand, drafters faced American and West European universalistic constitutionalism84 with its appeal for the reception of well-tested liberal values; but, on the other hand, such drafters listened to Western scholars suggesting remedies for their drafting problems could be found in domestic traditions rather than in Enlightenment America.85 The new constitutions came to enjoy mixed characters, “blending together features produced by different tastes, cultures, and styles.”86 Such blending and of a Constitutional Court with the revolutionary notion of a norm-controlling competence to decide erga omnes: R. Walter, “Die Organisation der Verfassungsgerichtshofs in historischer Sicht,” in H. Lentze & P. Putzer (eds.), Festschrift für Ernst Carl Hellbling zum 70. Geburtstag, Wilhelm Fink Verlag, Salzburg (1971), at 734–736; and (b) the Czechoslovak Constitutional Court, also dating from 1920: T. Langášek, Ústavní soud Československé republiky a jeho osudy v letech 1920–1948 [Constitutional Court of the Czechoslovak Republic and its fortunes in years 1920–1948], Aleš Čeněk s. r. o., Plzeň (2011). 81 J. Jens Hesse, “Constitutional Policy and Change in Europe: The Nature and Extent of the Challenges,” in J. Jens Hesse & N. Johnson (eds.), Constitutional Policy and Change in Europe, OUP, Oxford (1995), chap. 1, 3, at 4–5. 82 Ibid., at 5. 83 R. Ludwikowski, “Constitutional Culture of the New East-Central European Democracies,” in M. Wyrzykowski (ed.), Constitutional Cultures, Institute of Public Affairs, Warsaw (2000), 55, at 61. 84 S. Katz, “Constitutionalization in East-Central Europe: Some Negative Lessons from the American Experience,” in V. Jackson & M. Tushnet (eds.), Comparative Constitutional Law, Foundation Press, New York (1999), at 286. 85 Brzezinski also notes that in Central European countries like Poland and Hungary, there was a tendency to look to the pre-Communist constitutions as sources for inspiration. Such earlier documents and practices could serve, inter alia, as (i) focal points, allowing the constitution-makers to single out the most salient among the innumerable models that could be adopted; (ii) a source of experience that was particularly relevant because of the sociological continuity with the past; and (iii) a source of symbolism, to affirm the continuity of the nation over time: M. Brzezinski, The Struggle for Constitutionalism in Poland, Macmillan Press Ltd., Basingstoke and London (1998), at 29. 86 Ludwikowski (2000), at 62.

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mixing, as Ludwikowski noted,87 became a significant feature of the constitutional culture in Central Europe and stemmed both from public attitudes and emotions and from aggressive Western lecturing about the universal values of liberal constitutionalism. Such processes gave the new Central European constitutions rather eclectic characters. As regards the use of contemporary models, McWhinney noted:88 “The 1958 constitution of the Fifth French Republic and the Bonn Constitution of 1949 represent, together with the British constitutional system and the American constitution, the principal alternative models or stereotypes for democratic constitution-making at the present time.” Very early on in the process of drafting new constitutions, the Anglo-Saxon models of “ingrained constitutional democracies”89—while regarded as inspirational (e.g., in respect of British parliamentary democracy and the sovereignty of Parliament) and influential (e.g., the US approach to the rule of law, separation of powers and protection of constitutional rights)—were nevertheless regarded as largely unsuitable because of their unique characters.90 Instead, various continental models were utilised. As Paczolay stated in respect of the amendments to the Hungarian Constitution:91 The constitutions of several different Western democracies have had an indelible impact on the current text of the Hungarian Constitution. The objective of the Constitution was to create a document in conformity with European constitutional standards, in order to establish a framework for “Europeanism,” or thinking analogous to the ideals of the post-Franco Spanish Constitution…. For example, the influence of the German Grundgesetz (basic law) and of the Italian Constitution was very strong, and from among of more recent democracies those of Spain and Portugal had a clear impact.

b. Strengths of the German and French Models In respect of Poland and Hungary, constitution-makers felt the pull of the constitutions of France (because of historic cross-pollenisation) and Germany (because of what was perceived as the most successful example of a formerly authoritarian 87 Ibid., at 62. 88 E. McWhinney, Constitution-making: Principles, Process, Practice, University of Toronto Press, Toronto, Buffalo and London (1981), at 6. 89 U. Preuss, “Patterns of Constitutional Evolution and Change in Eastern Europe,” in Hesse & Johnson (eds.) (1995), chap. 5, 95, at 102. 90 For the United Kingdom, British constitutional law was predominantly concerned with the problems of sovereignty, legitimacy, and accountability, and lacked – until comparatively recently – a bill of rights: V. Bogdanor, “Britain: The Political Constitution,” in V. Bogdanor (ed.), Constitutions in Democratic Politics, Gower, Aldershot (1988), 53ff. On the limited impact of American constitutional institutions in general, see K. von Beyme, America as a Model, St. Martin’s Press, New York (1987). 91 P. Paczolay, “The New Hungarian Constitutional State: Challenges and Perspectives,” in A. Dick Howard (ed.), Constitution Making in Eastern Europe, Woodrow Wilson Center Press, Washington, D.C. (1993), chap. 2, 21, at 36. Footnote omitted.

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European polity).92 Both these models had been promulgated in part to prevent the re-emergence of Fascist dictatorship and authoritarian governance of the Second World War era.93 Before the adoption of a completely new constitution in 1997,94 Poland was governed by the 1952 Constitution as amended substantially in 198995 and in 1992 by the Little (or Small) Constitution on the separation of powers.96 At the general political level there was a conflict between which model to adopt:97 the German parliamentary system, with a relatively weak president acting as an arbiter of executive power rather than a chief executive (which model was propounded by the Sejm, the lower chamber of the Polish parliament); or the French semipresidential form of government, vesting the president with full government appointment powers (which model was proposed by the Senate).98 The framework of government in the 1992 Small Constitution found its basic model in the German Constitution although it gave more powers to the President than the 1949 Basic Law. Still ambiguities continued to surround such conflict that were only truly clarified with the coming into force of the 1997 Constitution with its (French Fifth Republic-inspired) semi-presidential system of governance.99 The Polish system of governance, consequently a mixed system, finds its basis through a predominant French influence with German elements. The predominance of the German Constitution is ensured, however, in other areas, e.g., the fundamental principles such as that of the Rechtsstaat. Naturally, no Rechtsstaat clause existed in the 1952 Constitution but was inserted into it by a 1989 amendment100 under Art. 1 to read that Poland was “a democratic state

92 Brzezinski (1998), at 29. 93 Ibid., at 211. 94 W. Osiatynski, “A Brief History of the Constitution,” (1997) 6 EECR, Nos. 2–3, 66. 95 M. Brzezinski & L. Garlicki, “Judicial Review in Post-Communist Poland: The Emergence of a Rechtsstaat?” (1995) 31 Stanford Jo. Intl. Law 13, at 31; M. Exner, “Recent Constitutional Developments in Poland” (1991) 42 ÖZöRV 341; W. Sokolewicz “The April 1989 Change of the Constitution” 1988/3–4 DPC/PCL 8–17. 96 Constitutional Act of 17 October 1992 on the Mutual Relations between the Legislative and Executive Institutions of the Republic of Poland and on Local Government: Dziennik Ustaw Rzeczpospolitej Polskiej [Joumal of Laws of the Republic of Poland], 23 November 1992, no.84, item 426. R. Ludwikowski, “Constitution Making in the Countries of Former Soviet Dominance: Current Development” (1993) 23 Ga. Jo. Intl. & Comp. Law 155, at 219–221. 97 A. Rapaczynski, “Constitutional Politics in Poland: A Report on the Constitutional Committee of the Polish Parliament” (1992) 58 U. Chi. L. Rev. 595. 98 The Polish Constitutional drafts prepared in the early years of the transition were published in Projekty Kostytucyne 1989–1991 [Constitutional Drafts 1989–1991], Wydawnictwo Sejmowe, Warsaw (1992). 99 L. Garlicki, “The Presidency in the New Polish Constitution,” (1997) 6 EECR, Nos. 2–3, 81. 100 Ustawa z dnia 29 grudnia 1989 o zmianie Konstytucji Polskiej Rzeczypospolitej Ludowej [Act of 29 December 1989, Amending the Constitution of the Polish People’s Republic] Dz. U. 1989, Issue 75, Item 444. See M. Brzezinski, “Constitutional Heritage and Renewal: The Case of Poland” (1991) 77 Va. L. Rev. 49, at 103–110.

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under the rule of law which implements the principles of social justice.” The 1997 Constitution repeated this phrasing in Art. 2. These provisions were modelled on the Rechtsstaat clause of the German Constitution.101 As will be examined in the Chapter on Poland,102 the Rechtsstaat implies similar elements according to German and Polish doctrine: human dignity, the supremacy of the Constitution and of the law, the separation of powers, judicial protection, acquired rights and legal certainty.103 The situation in Hungary was overwhelmingly tilted in favour of the German model, adapted to domestic conditions.104 The former Communist Constitution of Hungary105 was completely amended from 1989/1990 onwards106 (and hereafter is referred to simply as the ‘1990 Constitution’107) but technically remained in force until being replaced by the 2011 Constitution.108 In parliamentary matters, the role and powers of the President and in most respects of governance, Hungary (under both the 1990 and 2011 Constitutions) has closely followed the provisions and experience under the German Constitution.109 Hungary,110 like Poland, enshrined the Rechtsstaat principle in Art. 2 of the 1990 Constitution111 that stated that Hungary was “a democratic state under the rule of law where all power belongs to the people exercising its sovereignty through its elected representatives as well as directly.” The development of this provision by the Hungarian Constitutional Court—as will be subsequently referred to112— showed significant influence from German constitutional court practice, whether or not it was expressly acknowledged in decisions.113 The provision is now substantially replicated in Art. B of the 2011 Constitution. 101 Brzezinski (1998), at 166. 102 See below at Chapter Five, point B.1. 103 J. Działocha, “Der Rechtsstaat unter den Bedingungen einer grundlegenden Umformung des Rechtssystems, dargestellt am Beispiel Polen” (1993) 39 OER 1, at 5ff. 104 F. Majoros, “Ungarns neue Verfassungsordnung: Die Genese einer neuen demokratischen Republik nach westlichen Massstäben,” Part I, 1990/2 OER 85; and Part II, 1990/3 OER 161. 105 For the original see Act XX of 1949 on the Constitution of the Hungarian People’s Republic, MK 1949/174, at 1355. This amounted to the first formal written constitution for Hungary in over one thousand years of history, before which enactment its constitution (like that of the United Kingdom) was an amalgam of law, custom and convention dating back centuries. 106 Starting with Act XXXI of 1989 on the Amendment of the Constitution: MK 1989/74. On the process of constitutional transformation, see I. Pogany, “Constitutional Reform in Central and Eastern Europe: Hungary’s Transition to Democracy” (1993) 42 ICLQ 332. 107 For further information, see Chapter Four, Background. 108 Hungarian Fundamental Law (25 April 2011) (‘2011 Constitution’): MK 2011/43. This entered into force on 1 January 2012. 109 Paczolay (1993), at 36–39. 110 Kokott (1999), at 99. 111 Act XXIX of 1990 and Act XL of 1990, both on the Amendment of the Constitution: MK 1990/46 and MK 1990/59, respectively. 112 See below at Chapter Four, point B.2. 113 G. Halmai, “Democracy versus Constitutionalism? The Re-establishment of the Rule of Law in Hungary” in I. Grudzińska Gross, Constitutionalism & Politics, IV Bratislava Symposium 1993, Slovak Committee of the European Cultural Foundation, Bratislava (1994), 301.

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c. German Fundamental Rights Supreme For the list of constitutionally guaranteed fundamental rights under the Polish and Hungarian Constitutions, both States originally used the Bill of Rights in the German Constitution—commencing with the inviolability of human dignity114 in Art. 30 of the 1997 Constitution of Poland115 and Art. 54(1) of the 1990 Constitution of Hungary116 (now contained in an amended form in 2011 Constitution Art. II). Moreover, the constitutional drafters in 1990s Central Europe went beyond the stated rights in the German Constitution and looked for further inspiration in the decisions of the German Federal Constitutional Court (‘FCC’). For example,117 German Constitution Art. 2(1)118 which protects a citizen’s right to free development of their personality—when read in conjunction with the protection of human dignity secured under Art. 1(1)—protects a general personality right119 which must be balanced with the public’s right to information.120 According to the FCC,121 the general personality right implies a basic right to ‘informational selfdetermination,’ i.e., a right to determine about the divulgence and transmission of one’s personal data. Such right was expressly provided for by 1990 Hungarian Constitution Art. 59122 and 1997 Polish Constitution Art. 51, and has since been interpreted by constitutional tribunals in Central Europe, generally following the lines set by the FCC. Nevertheless, German constitutional law and practice were not the only inspirations for the human rights provisions in the Polish and Hungarian Constitu tions of the 1990s.123 With these two States, eager to join the Council of Europe,124 114 Kokott (1999), at 82. 115 See generally, T. Diemer-Benedict, “Die Grundrechte in der neuen polnischen Verfassung” (1998) 58 ZaöRV 205. 116 On this right, see generally, Dupré (2003). 117 Kokott (1999), at 86–87. 118 1949 German Constitution, Art. 2(1): “Everyone has the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or against morality.” 119 H. Jarass, “Artikel 2,” in H. Jarass & B. Pieroth (eds.), Grundgesetz für die Bundesrepublik Deutschland, 6th ed., C.H. Beck, München (2002), Rn. 1 and 25ff. 120 Lebach, 5 Juni 1973, 1 BvR 536/72: BVerfGE 35, 202. 121 Volkszählung, 15 Dezember 1983, 1 BvR 209, 269, 362, 420, 440 and 484/83: BVerfGE 65, 1. 122 Personal data protection is now dealt with in Art. VI of the 2011 Constitution. 123 See, generally, M. Wyrzykowski, “Recepcja w prawie publicznym: Tendencje rozwojowe konstytucjonalizmu w Europie Środkowej i Wschodniej [Reception in Public Law: The Tendencies of Development of Constitutionalsim in Central and Eastern Europe]” 1992/11 Państwo i Prawo 23. 124 Poland became a member of the Council of Europe on 26 November 1991, signing the ECHR. On 2 October 1992, the Sejm (according to the then rules in force) expressed its approval through the adoption of a statute ratifying the Convention which statute was signed by the President of the Republic on 15 December 1992: although passed in October, the statute was not officially published until the next month: Dz. U. 1992, No. 85, Item 427, 1485. The instruments of ratification of the Convention were deposited on 19 January 1993: L. Garlicki, “Ratyfikacja Konwencij o ochronie praw czeowieka i podstawowych wolnośi” [Ratification of the Convention on the Protection of Human Rights and Fundamental Freedoms], Biuletyn – Ekspertyzy i opinie prawne, Kancelaria Sejmu, 1992,

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the rights set out in the ECHR were also extremely influential—so much so that the new Bill of Rights in the 1990 Hungarian Constitution, to a great extent, was a translation of the freedoms guaranteed in the Convention.125 As for the rights under the 2011 Constitution, Hungarian law-makers were further influenced by the EU Charter on Fundamental Rights. d. German Model of Constitutional Adjudication also Supreme Among the most important provisions of the new constitutions were those concerned with the constitutional jurisdiction. In this respect, the model for nearly all former Communist States in Central and Eastern Europe126 was the German one. In its establishment, the Polish Constitutional Tribunal pre-dates the system change of the late 1980s/early 1990s: thus constitutional review of laws required reconciliation of various political and social aspirations with the leading role of the United Workers (Communist) Party, a basic feature of the then system but totally alien to systems where such review had originated.127 In the 1982 amendment to the 1952 Constitution,128 Art. 33a introduced the institution of a constitutional tribunal129 but this was not implemented until the passing of the 1985 Constitutional Tribunal Act.130 The German constitutional No. 1(4), at 32–35. Hungary signed the ECHR on 6 November 1990 and ratified it on 15 October 1992: it entered into domestic force through Act XXXI of 1993 (MK 1993/41). 125 A. Drzemczewski, “Ensuring Compatibility of Domestic Law with the European Convention on Human Rights Prior to Ratification: The Hungarian Model” (1995) 16 HRLJ 241; L. Sólyóm, “The Interaction between the Case-Law of the European Court of Human Rights and the Protection of Freedom of Speech in Hungary,” speech delivered at Conference, Autumn 1996, Strasbourg [copy on file with the author of the present work]; and A. Ádám, Alkotmányi értékek és Alkotmánybíráskodás [Constitutional values and Constitutional jurisdiction], Osiris Kiadó, Budapest (1998), chap. 3, at 89–99. 126 With the notable exception of Estonia which has a Constitutional Review Chamber as part of its Supreme Court. Information available at: . Accessed 24 September 2012. 127 J. Stembrowicz, “Trybunal Konstytucyjny,” Tygodnik Powszechny 7 kwietnia 1985 [“Constitutional Tribunal,” Universal Weekly, 7 April 1985], at 3, translated in Polish News Bulletin, 20 April 1985. 128 L. Garlicki, “Reforma wymiaru sprawiedliwósci a kontrola konstytucyjnósci ustaw” [The Reform of the Justice System and the Constitutional Review of Laws]” 1982/1–2 PiP 34. 129 M. Brzezinski, “The Emergence of Judicial Review in Eastern Europe: The Case of Poland” (1993) 41 AJCL 153; R. Ludwikowski, “Judicial Review in the Socialist Legal System: Current Developments” (1988) 37 ICLQ 89, at 90; and J. Wróblewski “Trybunał Stanu i Trybunał Konstytucynjny – związki instytucjonalne i problemy wspólne [Tribunal of State and Constitu tional Tribunal, Institutional Connections and Common Problems]” 1986/8 PiP 9. 130 Ustawa z dnia 29 kwietnia 1985 o Trybunale Konstytucyjnym [Constitutional Tribunal Act of 29 April 1985], Dz. U. 1985, No. 22, Item 98, at 245. The procedure and operation of the Tribunal was governed by a separate Act: Uchwała Sejmu Rzeczypospolitej Ludowej z dnia 31 lipca 1985 w sprawie szczegółowego trybu postępowania przed Trybunałem Konstytucyjnym [Parliament Resolution of 31 July 1985 on the Special Mode of Proceedings Before the Constitutional Tribunal], Dz. U. 1985, No. 39, Item 184, at 493. For further discussion of the Constitutional Tribunal generally see, e.g., W. Sokolewicz, “Kontrola konstytucynjości prawa w państwie socjalistycznym. Zagadnienie form organizacyjnyc [Review of Constitutionality of Law in a Socialist State. The problem of Organizational

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court subsystem was the model for the Constitutional Tribunal’s organisation, jurisdiction, and procedure: nevertheless, “these models had to be adapted to the specific realities of the Polish State.”131 Consequently the operation of the Constitutional Tribunal was initially circumscribed to ensure that its practice was congruent with, and not a challenge to, the concept of parliamentary (and Party) supremacy.132 The Tribunal’s powers were altered after the system changes in 1989 and 1990 but it was only with the 1997 Constitution and the 1997 Constitutional Tribunal Act133 that the Polish Tribunal was invested with powers comparable to those exercised by its German counterpart.134 The drafters of the 1989 amendments to the then Hungarian Constitution were minded to provide an independent institution, able to operate effectively in what was expected to be a system of political governance still dominated by the (ex-) Communist party after the first free elections in 1990.135 A Constitutional Court, modelled on that of Germany and imbued with similar powers and jurisdiction,136 was established under new Constitution Art. 32/A and the 1989 Constitutional Court Act.137 As will be seen in Chapter Four, Art. 24 of the 2011 Constitution and the 2011 Constitutional Court Act have been similarly influenced by the FCC.138 5. Resultant Influences on Constitutional Judicial Practice Having considered the way in which the German model exercised great influence over those creating the new constitutional orders in Poland and Hungary— exceptionally so in respect of the constitutional jurisdiction—, it is necessary to Forms],” in K. Działocha et al. (eds.), Konstytucja w społeczeństwie obywatelskim: księga pamiątkowa ku czci Prof. Witolda Zakrzewskiego [The Constitution in a Civic Society Commemorative Homage to Prof. Witold Zakrzewski], Krajowa Agencja Wydawnicza, Kraków, (1989), at 187ff. 131 Interview with M. Wyrzykowski, Professor of Constitutional Law, University of Warsaw, on 23 May, in Warsaw, Poland referred to in Brzezinski (1998), at 142. 132 Brzezinski (1998), at 155. 133 Ustawa z dnia 1 sierpnia 1997 r. o Trybunale Konstytucyjnym [Act of 1 August 1997 on the Constitutional Tribunal]: Dz. U. 1997, No. 102, Item 643. 134 In contradistinction with the 1985 Act, the 1997 Act provided that (a) decisions of the Constitutional Tribunal were final (from September 1999, in order words, two years after the entry into force of the 1997 Constitution: Art. 239); (b) the Tribunal was empowered to review treaties visà-vis the Constitution; and (c) the institution of constitutional complaint was introduced. Nevertheless, the Constitutional Tribunal was deprived of the right under the 1985 Act to deliver generally binding interpretations of statutes. 135 In the process of constitutional reform, the independence of the Constitutional Court came to assume great significance based mainly on opposition (i.e., non-communist/democratic groups’) fears that the “key positions in the political system would remain in the hands of the Communists”: P. Paczolay, “Judicial Review of the Compensation Law in Hungary” (1992) 13 Mich. Jo. Intl. Law 806, at 807. 136 In fact, at that time, possessing an even broader jurisdiction with the actio popularis, viz., that every citizen has the right to challenge the constitutionality of legal norms before the Court. 137 Act XXXII of 1989 on the Constitutional Court: MK 1989/77, at 1283. L. Sólyom, “Aufbau und dogmatische Fundierung der ungarischen Verfassungsgerichtsbarkeit” (2000) 46 OER 230. 138 See below Chapter Four, Background and points A.2.b. and A.3.b.

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look a little beyond the provisions themselves and rather examine briefly the judicial practice. In this respect, the influence of German constitutional law did not stop with the enactment of the new Constitutions and the (re-) foundation of the constitutional tribunals. Since the fundamental bills of rights were so similar to the German, as were the powers and jurisdictions of the constitutional courts, it would have been somewhat disingenuous of the Polish and Hungarian constitutional judiciary to have simply ignored the practice of their German colleagues in these areas.139 Dupré has already fully examined the influence of the FCC’s case-law in the field of human dignity on the decisions of the Hungarian Constitutional Court.140 Similar effects have already been noted in this Chapter in both Hungary and Poland on the right to informational self-determination as well as the contents of the principle of the Rechtsstaat.141 These instances of application, influence or adaptation of particularly German constitutional cases142 on decisions by the Polish Constitutional Tribunal and the Hungarian Constitutional Court are not isolated or limited examples. Rather they represent a broad tendency, on the part of the Central European constitutional judiciary, to look to the well-established practice of the FCC—either expressly, or by reference to a phrase such as ‘general European principles’ (which effectively means the German case-law),143 or by implication144—as the most salient precedents on which to formulate their own rulings in their (newly-emerged) democratic orders. The premium placed on German constitutional rulings by the Hungarian145 and Polish146 constitutional judiciary continues to be high, down to 139 L. Sólyom, “The Hungarian Constitutional Court and Social Change” (1994) 19 Yale Jo. Intl. L 223, in which the author describes how the court’s efforts to establish itself as a “countermajoritarian” institution committed to the rule of law, self-consciously drew on extra-national legal sources in its work. 140 Dupré (2003). 141 See above at Chapter Two, points B.4.-B.5. 142 But see also the impact of the jurisprudence of the ECtHR on the constitutional tribunals in Hungary (Sólyom (1996) and Ádám (1998), at 89–99) and Poland (L. Leszczyński, “Application of the European Convention in the Polish Courts: An Impact on the Judicial Argumentation,” (1996) 2 EEHRR 19). 143 C. Dupré, “Importing German Law: the Interpretation of the Right to Human Dignity by the Hungarian Constitutional Court” (2000) 46 OER 144. 144 In the area of environmental protection, the Hungarian Constitutional Court used the provisions of the 1972 Stockholm and 1992 Rio Declarations without express reference to them: A.F. Tatham, “International Environmental Treaties before Hungarian Courts,” in M. Anderson & P. Galizzi (eds.), International Environmental Law in National Courts, British Institute of Interna tional and Comparative Law, London (2002), chap. 7, 127, at 139–140. 145 J. Seitzer, “Experimental Constitutionalism: A Comparative Analysis of The Institutional Bases of Rights Enforcement in Post-Communist Hungary,” in S.J. Kenney, W.M. Reisinger & J.C. Reitz, Constitutional Dialogues in Comparative Perspective, Palgrave Macmillan, Basingstoke (1999), chap. 3, 42–61. 146 For example, the Polish Constitutional Tribunal in Dec. Kp 3/08 (18 February 2009: OTK ZU 2009/2/A, Item 9, at para. III.6.1) in dealing with the requirement of precision in drafting

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the present, due to the historical, legal and socio-cultural influences already described more fully earlier on in this Chapter. C. Conclusion In summary, then, it was an almost inescapable phenomenon that the Hungarian and Polish constitutional tribunals would be susceptible to the influence of their German counterpart in formulating their own approaches to EU law after (and, as will be examined, even before) accession to the Union. It would be heretical of the present author to determine that the Hungarian and Polish courts were predestined to acquiesce to German doctrinal orthodoxy in respect of their domestic constitutional court system.147 And yet the weight of historic and legal cultural affinities, as well as geographic proximity, linguistic knowledge, intellectual interchange, formation of post-communist constitutions and constitutional jurisdictions, patterns of judicial thinking—all have combined to produce an ineluctable impact on the approach of constitutional judges in Central Europe. In this process, the constitutional judges have not shied away from admitting these influences: indeed—as will be seen—they have used the reasoning of the FCC in their own arguments as well as making explicit reference to relevant case-law in seeking to bolster their own decision-making. This active engagement in constitutional migration and horizontal transjudicial communication (already apparent in the period after the change of regime in 1989/1990) has necessarily provided a fertile ground for bringing forth the thesis that, given such judicial interchange between national jurisdictions, a similar impact would be felt in the Hungarian and Polish constitutional tribunals in developing their particular understanding of the position and role of EU law in their own systems. In short, based on the propositions in this Chapter, it is therefore contended that there is a strong probability that the Hungarian and Polish constitutional judicial organs—in addressing their respective national positions vis-à-vis EU law—will be heavily influenced by the established model of Germany. In approaching such issue—the focus of this book—it will be necessary in Chapter Three to present the German model as it deals with the constitutional implications of EU membership, before embarking upon a more thorough examination (in succeeding Chapters) of the possible application of this model in the constitutional judicial practice of Hungary and Poland. legislation, noted that the term “specificity of law” derived its origins from the German doctrine and was an element of the concept of a state under the rule of law. 147 With unreserved apologies to the sometime lawyer, John Calvin, who took the doctrine of predestination (previously and variously propounded by St. Augustine, Luther and Zwingli) to its strictly logical conclusion: G. Harkness, John Calvin. The Man and His Ethics, Abingdon Press, New York (NY) (1957), at 72–77.

CHAPTER THREE

THE GERMAN FEDERAL CONSTITUTIONAL COURT AND EUROPEAN LAW: A CASE OF “THUS FAR, AND NO FURTHER”? Background In presenting the German model, the approach of the Federal Constitutional Court (‘Bundesverfassungsgericht,’ hereafter ‘FCC’) to European integration, the current writer was naturally overwhelmed by the abundance of literature on this issue. Setting out the model has accordingly been no easy task and clearly forms a work in itself.1 Nevertheless, this Chapter seeks to provide an exposition of the basic traits of the model—with reference to the decisions of the FCC—that might provide guiding principles for the constitutional tribunals in Hungary and Poland which latter courts’ responses are to be analysed in Chapters 4 and 5 respectively. In order to facilitate the making of comparisons between these three jurisdictions, the present author has considered it apposite to ensure inter-chapter structural consistency. Consequently, the approach used in this Chapter will be maintained in the succeeding Chapters on the Hungarian Constitutional Court and the Polish Constitutional Tribunal. The three Chapters therefore commence with an outline of constitutional review, concentrating on the main procedures by which European law issues come before the relevant constitutional tribunal (A.). The research then examines the essential core of sovereignty, i.e., that part of a State’s existence without which it would cease to be: while the German Constitution2 has an express provision in this respect, Art. 79(3)3 known as the eternity clause, the Hungarian and Polish courts (like their Austrian counterpart4) have in some way attempted to formulate an essential core through interpretation 1 For a detailed description of the FCC case-law regarding EU integration, in German see: H.-W. Rengeling, A. Middeke & M. Gellermann (eds.), Handbuch des Rechtsschutzes der Europäischen Union, C.H. Beck, München (2003), chap. 35, 628–659. In English, see J. Kokott, “German constitutional jurisprudence and European integration” [1996] EPL 237 and 413; J. Kokott, “Report on Germany,” in A.M. Slaughter, A. Stone Sweet & J.H.H. Weiler, The European Court and National Courts – Doctrine and Jurisprudence: Legal Change in its Social Context, Hart Publishing, Oxford (1998), chap. 3, at 86–107; and K. Alter, Establishing the Supremacy of European Law, OUP, Oxford (2001), chap. 3, at 64–123. 2 The present author has used the expression ‘Constitution’ rather than ‘Basic Law’ which is a direct translation of the German ‘Grundgesetz.’ 3 Constitution Art. 79(3) provides: “Amendments to this Basic Law affecting the division of the Federation into Länder, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible.” 4 The Austrian constitutional order, unlike the German one, has no ‘eternity clause.’ As a result, the Austrian Constitution can be amended, subject to the necessary procedural requirements (see

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of the Constitution, inspired by the German model (B.). Each Chapter continues by addressing the issue of transfers of sovereignty in the face of European integration, providing a constitutional matrix within which the courts examined have operated. In respect of Germany, it is necessary to address the legal situation before (C.II.) and after (C.III.) the coming into force of the amendments to the Constitution, resulting from the ratification of the 1992 Maastricht Treaty. The focus of this book is the case-law of the respective constitutional courts. Due to the fact that the FCC has been judicially active for many years in negotiating the extent of the impact of European law domestically, the content of its model in this field has been the subject of a number of important cases and the object of intense and incisive criticism both at home and abroad. For this reason, the exposition of the FCC model vis-à-vis European law has proved to be somewhat lengthy. The discussion in the Chapter looks first at the FCC’s acceptance of certain principles and matters regarding European law: supremacy or priority of application; direct effect; as well as references to the European Court of Justice (‘ECJ’) (D.). However, since all is not so rosy in the German garden for European blooms, the Chapter looks at the limits the FCC has put on its acceptance of European law, basically its defence of the essential core of sovereignty; its review of national legislation transposing European law into the domestic system; as well as refusals to refer questions to the ECJ (E.). The Conclusion, heavily influenced by the 2009 Lisbon Treaty case,5 seeks to discern the extent both to which the FCC has attempted to maintain any semblance of continuing judicial dialogue with the

Constitution Arts. 42, 44 and 50). Nevertheless, since the 1950s, the Austrian Constitutional Court (‘VfGH’) has developed its own concept of an essential core of sovereignty through the identification of its basic structural principles or building blocks (Bausteine). The process started in 1952 in the Voralberg Nationality case (VfGH G 17/52, 16 Dezember 1952, VfSlg 2455) in which the VfGH ruled that what was meant by a total revision of the Constitution under Art. 44(3) was “a revision such that it touched one of the principal Bausteine of the Federal Constitution.” The VfGH counted in the group of such Bausteine the democratic principle; the principle of a state under the rule of law; and the federal principle. It has subsequently added to this list: see R. Walter & H. Mayer, Grundriß des öster reichischen Bundesverfussungsrechts, 8th ed., Manz Verlag, Wien (1996), at 146ff; F. Ermacora (ed.), Österreichische Bundesverfassungsgesetze, 12th ed., Böhlau Verlag, Wien/Köln (1989), at 11ff. On the issue of sovereignty in relation to EU accession, see H. Schäffer, “Österreichischer Landesbericht,” in J. Schwarze (ed.), The Birth of a European Constitutional Order, Nomos, Baden-Baden (2001), at 372–373. 5 On this case see H. Baddenhausen, “Die neue Begleitgesetzgebung zum Vertrag von Lissabon nach Verabschiedung vom Bundestag und Bundesrat” (2009) 36 EuGRZ 543; C.D. Classen, “Legitime Stärkung des Bundestages oder verfassungsrechtliches Prokrustesbett? Zum Urteil des BVerfG zum Vertrag von Lissabon” (2009) 64 JZ 881–889; D. Doukas, “The verdict of the German Federal Constitutional Court on the Lisbon Treaty: Not Guilty, but don’t do it again” (2009) 35 EL Rev. 866– 888; U. Everling, “Europas Zukunft unter der Kontrolle der nationalen Verfassungsgerichte. Anmerkungen zum Urteil des Bundesverfassungsgerichts vom 30. Juni 2009 über den Vertrag von Lissabon” (2010) 45 EuR 91–107; K.F. Gärditz & C. Hillgruber, “Volkssouveränität und Demokratie ernst genommen – Zum Lissabon-Urteil des BVerfG” (2009) 64 JZ 872–881; T. Giegerich, “The Federal

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ECJ and to which the Hungarian and Polish counterparts might be influenced in following their German cousin. A. Constitutional Review 1. Introduction Following on from the negative experiences of the Weimar Republic6 and the Third Reich, the drafters7 of the 1949 Constitution8 sought to provide a constitutional guarantor of democracy and the state under the rule of law (‘Rechtsstaat’),9 independent of the executive and legislature, and with the power to strike down unconstitutional laws as well as upholding the fundamental rights of individuals.10 In seeking a model from which to derive guidance and inspiration, the drafters turned to the Austrian Constitutional Court (‘Verfassungsgerichtshof ’) which had been established in 1920,11 based on ideas going back to the 19th

Constitutional Court’s Judgment on the Treaty of Lisbon – The Last Word (German) Wisdom Ever Has to Say on a United Europe?” (2009) 52 GYIL 9–43; D. Hanf, “L’encadrement constitutionnel de l’appartenance de l’Allemagne a l’Union européenne. L’apport de l’arrêt ‘Lisbonne’ de la Cour constitutionnelle fédérale” (2009) 45 CDE 639–710; P. Kiiver, “The Lisbon Judgment of the German Constitutional Court: A Court-Ordered Strengthening of the National Legislature in the EU” (2010) 16 ELJ 578–588; P.-C. Müller-Graf, “Das Karlsruher Lissabon-Urteil: Bedingungen, Grenzen, Orakel und integrative Optionen” (2009) 32/4 Integration 331–360; J. Schwarze, “Die verordenete Demokratie. Zum Urteil des 2. Senats des BVerfG zum Lissabon-Vertrag” (2010) 45 EuR 108–117; and F. Wohlfahrt & J. Kottmann, “Der gespaltene Wächter? – Demokratie, Verfassungsidentität und Integrationsverantwortung im Lissabon-Urteil” (2009) 69 ZaöRV 469–470. 6 On the Weimar Republic, see H. Schneider, “Die Reichsverfassung vom 11. August 1919,” in J. Isensee & P. Kirchhof, Handbuch des Staatsrechts der Bundesrepublik Deutschland, Vol. I, 2nd ed., C.F. Müller Verlag, Heidelberg (1995), chap. 3, 85ff. 7 For the German constitutional tradition, see E. Kern, Geschichte des Gerichtsverfassungsrechts, C.H. Beck, München/Berlin (1954); H.W. Koch, A Constitutional History of Germany in the nineteenth and twentieth centuries, Longman, London/New York (1984); R. Wahl, “Der Konstitutionalismus als Bewegungsgeschichte” (2005) 44 Der Staat 571; and W. Heun, “Die Struktur des deutschen Konstitutionalismus des 19. Jh. im verfassungsgeschichtlichen Vergleich” (2006) 45 Der Staat 365. 8 For a detailed account of the formation of the 1949 Constitution, see A. Hopfauf, “Einleitung,” in B. Schmidt-Bleibtreu, H. Hofmann & A. Hopfunf (eds.), GG: Kommentar zum Grundgesetz, 11th ed., Carl Heymanns Verlag, Köln/München (2008), 1, at 1–60; J.F. Golay, The Founding of the Federal Republic of Germany, University of Chicago Press, Chicago (1964); and W. Heun, The Constitution of Germany: A Contextual Analysis, Hart Publsihing, Oxford and Portland (OR) (2011), at 9–24. On reunification, it was kept in force: R. Piotrowicz & S. Blay, The Unification of Germany in International and Domestic Law, Editions Rodopi BV, Amsterdam/Atlanta (GA) (1997), at 36–38. 9 In Western Europe at about that time, such process also occurred in Italy and in France: A.J. Zurcher (ed.), Constitutions and Constitutional Trends since World War II, New York University Press, New York (1955). 10 H. Simon, “Verfassungsgerichtsbarkeit,” in E. Banda, W. Maihofer & H.-J. Vogel (eds.), Handbuch des Verfassungsrechts der Bundesrepublik Deutschland, 2nd ed., Walter de Gruyter, Berlin and New York (1994), para. 34, Rn. 3ff. 11 H. Steinberger, “Ausländische Einflüsse bei der Entstehung des Grundgesetzes,” in K. Stern (ed.), 40 Jahre Grundgesetz: Entstehung, Bewährung und internationale Ausstrahlung, C.H. Beck,

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century.12 Thus, the genesis of the FCC in Germany may be found in its Austrian predecessor. The jurisdiction of the FCC13 is to be found in the 1949 Constitution and in the 1951 Act on the Federal Constitutional Court (‘CCA’),14 which enlarges upon the relevant provisions of the Constitution. For the purposes of this study, the two main proceedings before the FCC which are most relevant are constitutional review and constitutional complaints. 2. Types of Constitutional Review As regards constitutional review, this is linked to the requirement in Constitution Art. 20(3) that all federal and Land legislation is subject to the constitutional order. As a result, even if a statute has been adopted by the correct procedures, it is not automatically compatible with the Constitution since its substance must also conform with the Constitution: in particular, it must not violate the basic rights of the individual.15 The FCC must check that the legislature acts in accordance with the provisions of the Constitution when making laws and provides for various types of procedure by which the FCC may perform its tasks in this respect. First, under CCA s. 13(6) in conjunction with Constitution Art. 93(1)(2), when the FCC conducts an abstract norm control (‘abstrakte Normenkontrolle’), the question of the unconstitutionality of a (provision of a) statute does not arise in the context of a particular case in which the challenged statute is in issue. Instead, such proceedings are commenced purely to challenge the constitutionality of a (provision of a) statute as such. The FCC thus decides independently of a specific dispute on the compatibility of federal law or Land law with the Constitution or on the compatibility of Land law with other federal law. Only the Federal Government, a Land government or at least one third of the Members of the

München (1990), 53; and R. Machacek, Austrian Contributions to the Rule of Law, N.P. Engel, Kehl, Strasbourg and Arlington (1994), at 50. 12 G. Jellinek, Ein Verfassungsgerichtshof für Österreich, Alfred Hölder, Wien (1885); and, of course, Hans Kelsen, see, e.g., R. Walter, “Die Organisation der Verfassungsgerichtshofs in historischer Sicht,” in H. Lentze & P. Putzer (eds.), Festschrift für Ernst Carl Hellbling zum 70. Geburtstag, Wilhelm Fink Verlag, Salzburg (1971), at 734–736 13 See generally, D.C. Umbach & T. Clemens, Bundesverfassungsgerichtsgesetz: Mitarbeiter kommentar und Handbuch, C.F. Müller Juristische Verlag, Heidelburg (1992); G. Sturm, “Artikel 93,” in M. Sachs (ed.), Grundgesetz Kommentar, 2nd ed., C.H. Beck, München (1999), at 1750–1775; G. Sturm, “Artikel 94,” in Sachs (1999), at 1775–1782; G. Roellecke, “Aufgaben und Stellung des Bundesver fassungsgerichts im Verfassungsgefüge,” in Isensee & Kirchhof, (1998), Vol. II, chap. 53, 665; and W. Löwer, “Zuständigkeiten und Verfahren des Bundesverfassungsgerichts,” in Isensee & Kirchhof (1998), Vol. II, chap. 56, at 737. 14 Different procedures are set out in detail in the Bundesverfassungsgerichtsgesetz (the Federal Constitutional Court Act), BVerfGG (‘CCA’), 12 März 1951, 1951 BGBl., I, 243; as republished on 11 August 1993, 1993 BGBl., I, 1474. 15 Constitution Art. 1(3) states expressly that the basic rights listed in it are binding upon the legislature. .

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Bundestag may apply for such proceedings.16 The subject of such review may be any legal rule of the Federation or of a Land—in other words, not just laws adopted by parliament but also government decrees or the by-laws of independent public bodies.17 Secondly, under CCA s. 13(11) in conjunction with Constitution Art. 100(1), when conducting a concrete norm control of specific laws (‘konkrete Normenkontrolle’), the FCC is seised of a reference from a domestic court. Every German court is entitled and duty-bound to examine whether legal provisions are compatible with the Constitution. Under Constitution Art. 100(1), it must stay its proceedings and obtain a decision from the FCC if it considers a statutory provision to be incompatible with the Constitution.18 The FCC merely decides whether or not the legal rule submitted is compatible with the Constitution: it does not decide on the legal dispute itself which was the cause of the submission.19 Lastly, when requested by a court under Constitution Art. 100(2),20 the FCC must decide whether or not a rule of international law is an integral part of federal law and whether such rule directly creates rights and duties for the individual according to Constitution Art. 25.21 3. Constitutional Complaints (Fundamental Rights Protection) Under Constitution Art. 93(1)(4a) and (4b),22 anyone who claims that his fundamental rights have been breached by a public authority (i.e., legislation, administrative and judicial decisions) may make a constitutional complaint to the FCC. This form of complaint is an extraordinary legal remedy available to the individual for the maintenance of his basic rights and reflects the special importance which the German Constitution attaches to these rights vis-à-vis public authority. The basic rights embodied in the Constitution23 are not mere programmatic tenets but 16 By this means in particular the Opposition in the Bundestag, provided that it holds at least one third of the seats, has recourse to the FCC if it considers a law adopted by the majority of the deputies to be unconstitutional. 17 A variation of the review of law in general is contained in Constitution Art. 93(1)(2a), inserted into the Constitution in 1994, according to which the FCC can also rule in case of disagreement as to whether a law meets the requirements of Constitution Art. 72(2) which gives the Federation the right to legislate concurrently with the Länder. Applicants may be the Bundesrat, a Land government or a Land parliament. 18 A Land law may also be challenged as being incompatible with a federal law: Constitution Art. 100(1). 19 For details, see CCA ss. 80–82. 20 CCA s. 13(12) and cf. CCA ss. 83 and 84. 21 Constitution Art. 25 reads: “The general rules of public international law form part of the Federal law. They take precedence over the laws and directly create rights and duties for the inhabitants of the Federal territory.” 22 Read in conjunction with CCA s. 13(8a). 23 Cf. the rights listed in Constitution Arts. 1–19, e.g. equal rights for men and women, freedom of religion, expression, assembly and profession, and the right to property as well as allied rights, e.g., the right to a lawful judge, Constitution Art. 101(1).

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are directly enforceable law binding the legislature, the executive and the judiciary.24 If an individual feels that one of his basic rights has been violated by any act of a public authority, be it a federal or a Land authority, he may have direct recourse to the FCC: he does not need to instruct a lawyer or pay court fees. A constitutional complaint may be entered by any person, whether natural or legal, and where basic rights apply not just to Germans but to everyone (e.g., equality before the law and freedom of expression): thus foreigners, too, may enter a constitutional complaint if such rights are violated and recently the FCC has recognised this for companies established in the EU.25 While a constitutional complaint may relate to any act by a public authority violating a basic right,26 the requirement for lodging such a complaint is that there is no other means of eliminating the violation of that right. In principle all remedies within the relevant branch of jurisdiction (e.g., civil, criminal or administrative) must therefore first be exhausted before having recourse to the FCC.27 If these remedies prove unsuccessful, a person may enter a constitutional complaint with the FCC within one month of the decision being announced or received by the court of last instance (CCA s. 93(1)).28 The complainant has to petition the FCC to grant leave which must be granted if the complaint is of fundamental constitutional significance or if it is indicated to enforce fundamental rights (CCA s. 93a(2)). According to the FCC,29 the constitutional complaint serves a dual function: first as a means of extraordinary judicial relief giving the citizen the possibility to defend their basic rights; and, secondly, it serves in addition the function of preserving the objective constitutional order and of serving the interpretation and development of constitutional law.30 In its case-law, the FCC has used the European Convention on Human Rights (‘ECHR’)31 and the European Court of Human Rights (‘ECtHR’)32 case-law in its judgments but in combination with the relevant right under the Constitution.33

24 Constitution Art. 1(3). 25 Le-Corbusier-Möbeln, 19 Juli 2011, 1 BvR 1916/09: BVerfGE 129, 78. See J. Oliva, “Legal Persons from EU Member States and their Entitlement to Fundamental Rights under the German Basic Law” (2011) 54 GYIL 659. 26 In other words, a law, a directive of an administrative agency, or a court decision. 27 An example of the operation of the principle of subsidiarity, cf. CCA s. 90(2). 28 In exceptional circumstances, the FCC may decide immediately on a complaint lodged before all remedies have been exhausted if it is of general relevance or if recourse to other courts first would entail a serious and unavoidable disadvantage for the complainant. 29 In re Firma K., 28 Juni 1972, 1 BvR 105/63 and 275/68: BVerfGE 33, 247, at 258–259. 30 It is the subject of some debate as to whether or not the constitutional complaint in each case exclusively serves the individual interests of citizens: see, e.g., K. Schlaich, Das Bundesver fassungsgericht, C.H. Beck, München (1997), at 180–182. 31 Convention on the Protection of Human Rights and Fundamental Freedoms, signed in Rome, 4 November 1950: CETS 005. 32 Arts. 19–51 ECHR. 33 Görgülü, 14 Oktober 2004, 2 BvR 1481/04: BVerfGE 111, 307.

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However, the FCC has consistently ruled34 that violations of the ECHR per se cannot serve as a basis for an individual constitutional complaint before it. B. Essential Core of Sovereignty 1. Introduction Although the drafters of the 1949 Constitution provided a mechanism for its amendment by a two-thirds majority vote in each house of Parliament,35 the socalled ‘Ewigkeitsklausel’ (‘eternal guarantee’ or ‘eternity clause’)36 of Constitution Art. 79(3) limits this power of amendment: “Amendments of the Constitution affecting the division of the Federation into Länder, the participation in principle of Länder in legislation, or the basic principles laid down in Arts. 1 and 20, are inadmissible.” These latter two Articles state: Article 1. (1) The dignity of man is inviolable. To respect and protect it is the duty of all state authority. (2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world. (3) The following basic rights bind the legislature, the executive and the judiciary as directly enforceable law. Article 20. (1) The Federal Republic of Germany is a democratic and social federal state. (2) All state authority emanates from the people. It is exercised by the people by means of elections and voting and by separate legislative, executive and judicial organs. (3) Legislation is subject to the constitutional order; the executive and the judiciary are bound by the law.

One of the main results achieved in the 1949 Constitution is that the essential core of sovereignty of Germany—the structural principles37 including the state under the rule of law (Rechtsstaat), democracy, and protection of fundamental human

34 EMRK, 14 März 1973, 2 BvR 621/72: BVerfGE 34, 384, at 395; Reparationsschäden, 13 Januar 1976, 1 BvR 631/69 and 24/70: BVerfGE 41, 126, at 141; and Äußerungsrecht und Berücksichtigungsrecht, 17 Mai 1983, 2 BvR 731/80: BVerfGE 64, 135, at 157. 35 Constitution Art. 79(1) and (2) which state: “(1) This Constitution can be amended only by statutes which expressly amend or supplement the text thereof…. (2) Any such statute requires the consent of two thirds of the members of the House of Representatives [Bundestag] and two thirds of the votes of the Senate [Bundesrat].” 36 P. Kirchhof, “Die Identität der Verfassung in ihren unabänderlichen Inhalten,” in Isensee & Kirchhof, (1995), Vol. I, chap. 19, 775; J. Lücke, “Artikel 79,” in Sachs (1999), Rdn. 20–47, at 1511–1519; and R. Sannwald, “Artikel 79,” in Schmidt-Bleibtreu, Hofmann & Hopfunf (2008), 1665–1680, especially at 1672–1679. 37 M. Sachs, “Artikel 20,” in Sachs (1999), Rdn. 1–175, at 743–799; and H. Hofmann, “Artikel 20,” in Schmidt-Bleibtreu, Hofmann & Hopfunf (2008), 634, at 657–658.

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rights—are found in these unamendable constitutional provisions. The contents of these principles have been fleshed out and interpreted by the FCC in its case-law. 2. State Based on The Rule of Law (‘Rechtsstaat’) The State must ensure justice and legal certainty. Constitution Art. 20(3) embodies the rule of law principle by stating that all governmental activities—legislative, executive, judicial—are bound by law and justice.38 The Constitution goes beyond raising the rule of law39 in an unspecified manner to the rank of a structural principle by providing a variety of institutions and norms which fall under the general Rechtsstaat principle and seek to implement it.40 In addition to the guarantees of basic rights considered separately below, one may mention the separation of powers;41 the independence of the judiciary;42 the ban on extraordinary courts;43 the right to a hearing conducted in accordance with the law, the prohibition on retroactive criminal laws, and on receiving more than one sentence for the same crime.44 The German approach is that all these constitutional guarantees are regarded as safeguards falling under the rule of law since all of them are ultimately instrumental in protecting the individual’s rights and freedoms against the power of the State.45 Over and above the specific items mentioned in connection with the Rechtsstaat in the Constitution, this principle is regarded by both the FCC46 and 38 Constitution Art. 20(3). 39 U. Karpen, “Rule of Law,” in U. Karpen, The Constitution of the Federal Republic of Germany, Nomos Verlagsgesellschaft, Baden-Baden (1988), 172ff; P. Kunig, Das Rechtsstaatsprinzip: Überlegungen zu seiner Bedeutung für das Verfassungsrecht der Bundesrepublik Deutschland, Mohr Siebeck, Tübingen (1986); E. Schmidt-Aßmann, “Der Rechtsstaat,” in Isensee & Kirchhof, (1995), Vol. I, chap. 24, 987; M. Sachs, “Artikel 20,” in Sachs (1999), s.v. “Rechtsstaat,” Rdn. 74–165, at 766–797; and H. Hofmann, “Artikel 20,” in Schmidt-Bleibtreu, Hofmann & Hopfunf (2008), 634, at 664–681. 40 V. Götz, “Legislative and Executive Power under the Constitutional Requirements entailed in the Principle of the Rule of Law,” in Ch. Starck (ed.), New Challenges to the German Basic Law, 49 Studien und Materialien zur Verfassungsgerichtsbarkeit, Nomos Verlagsgesellschaft, Baden-Baden (1992), chap. 6, 141, at 143. 41 State authority emanating from the people is exercised by specific legislative, executive and judicial organs: Constitution Art. 20(2), second sentence. This principle implies a distinction between legislative, executive and judicial functions and their allocation to specific organs (“separation of powers”) as well as mutual checks and curbs of those organs (“balance of powers”): E. Schmidt-Aßmann, “Der Rechtsstaat,” in Isensee & Kirchhof (1995), Vol. I, chap. 24, 987, at 1009–1023; M. Sachs, “Artikel 20,” in Sachs (1999), s.v. “Gewaltenteilung,” Rdn. 79–93, at 769–773; and H. Hofmann, “Artikel 20,” in Schmidt-Bleibtreu, Hofmann & Hopfunf (2008), 634, at 663–664. 42 Constitution Art. 97. 43 Constitution Art. 101. 44 Constitution Art. 103. 45 Götz (1992), at 144. 46 Application of the Rechtsstaat principle to Land legislatures, 1 Juli 1953, 1 BvL 23/51: BVerfGE 2, 380; Re des hamburgischen Hundesteuergesetzes, 24 Juli 1957, 1 BvL 23/52: BVerfGE 7, 89, at 92 et seq.;

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legal theory47 as constitutionally binding on the legislator, the executive and the courts. Legal certainty is one of the most important requirements deduced from the Rechtsstaat principle and was drawn on48 to establish that administrative decisions—in which an individual is awarded some type of benefit (the grant of a permission, social benefit or subsidy)—cannot be simply modified or repealed ex post facto, even when the administrative authority in question may have reason to believe that its earlier decision was legally unsound.49 Legal certainty is also advanced to challenge the legality of retroactive legislation,50 retroactive punishment already being prohibited by Constitution Art. 103(2). The FCC further developed the Rechtsstaat to ensure material guarantees of the principle and their protection, notably through the principles of proportionality51 and equality.52 In re Paul H., 26 Februar 1969, 2 BvL 15, 23/68: BVerfGE, 25, 269, at 290; In re Karl-Heinz O., 26 Mai 1970, 1 BvR 668, 710/68 and 337/69: BVerfGE 28, 264, at 272; Constitutionality of Art. 232(2) of the Zivilprozeßordnung, 8 Mai 1973, 2 BvL 5, 6, 7, 13/72: BVerfGE 35, 41, at 47; Constitutionality of Art. 211 of the Strafgesetzbuch, 21 Juni 1977, 1 BvL 14/76: BVerfGE 45, 187, at 236; and Legal Assistance Treaty of 11 September 1970 between the Federal Republic of Germany and Austria, 22 März 1983, 2 BvR 475/78: BVerfGE 63, 343, at 353. 47 K. Stern, Das Staatsrecht der Bundesrepublik Deutschland, 2nd ed., C.H. Beck Verlag, München (1984), Vol. I, para. 20 II; Schmidt-Aßmann (1987), sec. 24, No. 3. 48 Application of the Rechtsstaat principle to Land legislatures, 1 Juli 1953, 1 BvL 23/51: BVerfGE 2, 380. 49 Götz (1992), at 145. 50 H. Hofmann, “Artikel 20,” in B. Schmidt-Bleibtreu, H. Hofmann & A. Hopfunf (eds.), GG: Kommentar zum Grundgesetz, 11th ed., Carl Heymanns Verlag, Köln/München (2008), 634, at 675– 676; V. Götz, “Bundesverfassungsgericht und Vertrauensschutz,” in M. Drath & Ch. Starck (eds.), Bundesverfassungsgericht und Grundgesetz, FS aus Anlaß des 25 jährigen Bestehens des Bundesver fassungsgerichts, Vol. 2, J.C.B. Mohr (Paul Siebeck), Tübingen (1976), 421 et seq.; B. Pieroth, Rückwirkung und Übergangsrecht: verfassungsrechtliche Maßstäbe für intertemporale Gesetzgebung, Vol. 395 Schriften zum öffentlichen Recht, Duncker und Humboldt, Berlin (1981). 51 The basic idea behind the principle of proportionality is that, even when the legislature is specifically authorized to restrict basic rights, the restriction must be reasonable: In re Admiral a. D., 15 Dezember 1965, 1 BvR 513/65: BVerfGE 19, 342, at 348; and Überwachung des Brief-, Post- und Fernmeldeverkehrs, 15 Dezember 1970, 2 BvF 1/69, 2 BvR 629/68 and 308/69: BVerfGE 30, 1, at 20. Decisions of the FCC have identified three elements in the principle: (1) the limitation must be adapted to the achievement of a legitimate purpose; (2) it must be necessary to that end; and (3) the burden it imposes must not be excessive: Kontaksperregesetz, 1 August 1978, 2 BvR 1013, 1019, 1034/77: BVerfGE 49, 24, at 58; Erzwingungshaft zur Abgabe einer eidesstaatlichen Versicherung, 19 Oktober 1982, 1 BvL 34, 55/80: BVerfGE 61, 126, at 134; and In re landwirtschaftliche Unternehmer, 31 Mai 1988, 1 BvL 22/85: BVerfGE 78, 232, at 245–247. See K. Hesse, Grundzüge des Verfassungsrechts der Bundesrepublik Deutschlands, 17th ed., Müller, Heidelberg (1990), Nos. 317ff; and Th. Maunz & R. Zippelius, Deutsches Staatsrecht, 27th ed., C.H. Beck, München (1988), at 93ff. 52 Expressed in Constitution Art. 3(1) and developed by the FCC: Southwest State, 12 Oktober 1951, 1 BvR 201/51: BVerfGE 1, 14; In re Firma St. AG, 7 November 1972, 1 BvR 338/68: BVerfGE 34, 103, at 115; In re Peter D., 27 März 1973, 2 BvR 311/72: BVerfGE 35, 1; In re H., 21 Juni 1977, 2 BvR 308/77: BVerfGE 45, 363, at 375; and In re Herr B. und Frau T., 7 Oktober 1980, 1 BvL 50, 89/79, 1 BvR 240/79: BVerfGE 55, 72, at 88. See Ch. Starck, “Die Anwendung des Gleichheitssatzes,” in Ch. Link (ed.), Der Gleichheitssatz im modernen Verfassungsstaat: Symposium zum 80. Geburtstag von Gerhard Leibholz am 21. Nov. 1981, Vol. 20 Studien und Materialien zur Verfassungsgerichtsbarkeit, Nomos Verlag, Baden-Baden (1982), 51; and Th. Würtenberger, “Equality,” in U. Karpen, The Constitution of the Federal Republic of Germany, Nomos Verlagsgesellschaft, Baden-Baden (1988), 67.

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The sovereignty of the people exists meaning that all state authority emanates from the people.53 The concept inherent in the Constitution is that a representative (or indirect) democracy54 which guarantees that political power is—effectively—bound by legal or constitutional restrictions.55 Representation is realised according to Constitution Art. 20(2) by the people electing their representatives for the lower chamber of the Federal Parliament (Bundestag) and the Land Parliaments, in general, direct, free, equal, and secret elections.56 Although elements of direct (plebiscitory) democracy can be found at both Land and local municipal level,57 this was almost completely eschewed by the drafters of the 1949 Constitution at the federal level due to the experiences of the Weimar Republic58 and the subsequent Nazi regime:59 the only real example being Constitution Art. 29 that lays down a plebiscitory procedure for restructuring the Länder.60 Consequently, the use of referenda in Germany to decide political issues is severely curtailed. Political parties, under Constitution Art. 21, form an indispensable element of democracy and participate in the political opinion-forming process of the people. Such process is clearly of vital importance61 because it results in the formation of 53 Constitution Art. 20(2), first sentence. 54 P. Badura, “Die parliamentarische Demokratie,” in Isensee & Kirchhof, (1995), Vol. I, chap. 23, 953; E.-W. Böckenförde, “Demokratie als Verfassungsprinzip,” in Isensee & Kirchhof, (1995), Vol. I, chap. 22, 887; M. Sachs, “Artikel 20,” in Sachs (1999), s.v. “Demokratie,” Rdn. 11–45, at 747–757; and H. Hofmann, “Artikel 20,” in Schmidt-Bleibtreu, Hofmann & Hopfunf (2008), 634, at 661–662. 55 G. Ress, “The Constitution and the Requirements of Democracy in Germany,” in Ch. Starck (ed.), New Challenges to the German Basic Law, 49 Studien und Materialien zur Verfassungsgerichts barkeit, Nomos Verlagsgesellschaft, Baden-Baden (1991), chap. 5, 111, at 118–119. 56 Constitution Arts. 38 and 28. 57 P. Krause, “Verfassungsrechtliche Möglichkeiten unmittelbarer Demokratie,” in Isensee & P. Kirchhof (eds.), Handbuch des Staatsrechts (1995), Vol. II, chap. 39, 313; A. Weber, “Direkte Demokratie im Landesverfassungsrecht” (1985) DÖV 178; and H.H. von Arnim, “Möglichkeiten unmittelbarer Demokratie auf Gemeindeebene” (1990) DÖV 85. 58 C. Schmitt, Volksentscheid und Volksbegehren. Ein Beitrag zur Auslegung der Weimarer Verfassung und zur Lehre von der unmittelbaren Demokratie, Vol. 2 Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, Walter de Gruyter, Berlin and Leipzig (1927); and H. Hofmann, “Bundesstaatliche Spaltung des Demokratiebegriffs?” in W. Barfuß (ed.), Festschrift für Karl H. Neumayer, Nomos Verlag. Baden-Baden (1985), 281, at 286ff. 59 H. Schneider, “Volksabstimmungen in der rechtstaatlichen Demokratie,” in O. Bachof et al. (eds.), Forschungen und Berichte aus dem öffentlichen Recht. Gedächtnisschrift für Walter Jellinek: 12. Juli 1885–9. Juni 1955, Isar Verlag, München (1955), 155–174. The subject-matter of the three referenda held during the Nazi era clearly show post-war opposition to such process in the new German Constitution: (1) the withdrawal of Germany from the League of Nations, 12 November 1933; (2) the confirmation of Hitler as State President, 19 August 1934; and (3) the annexation of Austria, 10 April 1938. 60 See also Constitution Arts. 118 and 118a which allow for plebiscites specifically for the restructuring of what is now the Land of Baden-Württemberg, and for the Länder of Berlin and Brandenburg, respectively. 61 E.G. Mahrenholz, “Bundesverfassungsgericht und Parteistaatlichkeit,” in Stern (1990), 93, at 96.

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a government (Constitution Art. 63) by Parliament through the means of general parliamentary elections held under Constitution Art. 38. In this way, Germany can be regarded as a ‘party state.’62 4. Protection of Fundamental Human Rights The guaranteed basic rights of the individual63 are given a prominent position in the Constitution, exemplified by the fact that the Constitution begins with a Bill of Rights (Grundrechtskatalog).64 In order to emphasise that human rights are not a mere appendage to the Constitution Art. 1(2) states that “the German people acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.” Since human rights were completely trampled on and obliterated during the Nazi hegemony, the State is therefore directed both to respect and affirmatively to protect them, and Constitution Art. 79(3) protects them even against constitutional amendment.65 The detailed catalogue of specific rights bind the legislature, the executive and the judiciary as directly enforceable law.66 None of the enumerated freedoms though is absolute: several of them (e.g., life and bodily integrity; freedom from bodily restraint; expression; outdoor assembly, occupational freedom) are expressly made subject to restriction by or on the basis of statute. Even those freedoms not expressly subject to restriction (e.g., religious, artistic, and academic freedoms) are understood to be implicitly limited by other constitutional provisions, most obviously the guarantee of human dignity in Constitution Art. 1(1).67 Although rights may be limited, the legislature’s power to do so is itself subject to restrictions. Under Constitution Art. 19(1) and (2), a statute limiting basic rights must be a general one, must identify the rights affected and must not impinge upon the essence or essential content of the right. 62 G. Leibholz, Der Parteienstaat des Bonner Grundgesetzes, Schwann, Düsseldorf (1951). Early on in its work, the FCC determined that “[t]oday, any democracy is inherently a party state”: Der Südschleswigsche Wählerverband, 5 April 1952, 2 BvH 1/52: BVerfGE 1, 208, at 223. See more recently, R. Stöss, “Parteienstaat oder Parteiendemokratie?” in O. Gabriel, O. Niedermayer & R. Stöss (eds.), Parteiendemokratie in Deutschland, 1st ed., Vol. 13 Schriftenreihe der Bundeszentrale für politische Bildung, Westdeutscher Verlag, Bonn (1997), 13ff. 63 AA.VV., “Artikel 2” to “Artikel 19,” in Sachs (1999), at 155–742; P. Häberle, “Die Menschenwürde als Grundlage der staatlichen Gemeinschaft,” in Isensee & Kirchhof, (1995), Vol. I, chap. 20, 815; W. Höflung, “Artikel 1,” in Sachs (1999), Rdn. 1–105, at 120–155; M. Sachs, “Vor Artikel 1,” in Sachs (1999), Rdn. 1–136, at 79–119; AA.VV., “Artikel 1” to “Artikel 19,” in Schmidt-Bleibtreu, Hofmann & Hopfunf (2008), 95–633. 64 Constitution Arts. 1–19. For a general introduction to the fundamental rights provisions of the Constitution, see Stern (1984), Vol. V, para. 45. 65 On Art. 79(3) of the Constitution, see R. Sannwald, “Artikel 79,” Schmidt-Bleibtreu, Hofmann & Hopfunf (2008), 1665, at 1672–1680. 66 Constitution Art. 1(3). 67 See, e.g., Mephisto, 24 Februar 1971, 1 BvR 435/68: BVerfGE 30, 173, at 193–196.

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The guarantee of the protection of basic rights is maintained only as long as they are not abused to eliminate the free democratic basic order which has made them possible in the first place. The drafters of the Constitution opted for a ‘contentious’ or ‘militant democracy,’ reflected in Constitution Arts. 18 and 21(2):68 whoever abuses certain basic rights, namely freedom of expression or opinion— in particular freedom of the press,69 freedom of teaching,70 freedom of assembly,71 freedom of association,72 privacy of posts and telecommunications,73 property,74 or the right of asylum75—in order to combat the free democratic basic order forfeits those basic rights. Due to the fact that Germany operates a modified dualist system,76 the ECHR77 became part of the domestic legal order by ordinary statute.78 It accordingly does not enjoy the rank of constitutional law79 and so does not prevail over other ordinary statutes.80 Nevertheless, national courts are obliged to observe and apply the ECHR, as interpreted by the ECtHR:81 where they fail to do so, this results in violation of a fundamental right of the Constitution, viz., due respect for the ECHR under the

68 Socialist Reich Party, 23 Oktober 1952, 1 BvB 1/51: BVerfGE 2, 1, at 12–13; and Communist Party, 17 August 1956, 1 BvB 2/51: BVerfGE 5, 85. 69 Constitution Art. 5(1). 70 Constitution Art. 5(3). 71 Constitution Art. 8. 72 Constitution Art. 9. 73 Constitution Art. 10. 74 Constitution Art. 14. 75 Constitution Art. 16a. 76 For more, see below at Chapter Three, point C. 77 On the generally positive and co-operative relationship between the ECtHR and the FCC in the protection of human rights, see: F. Hoffmeister, “Die Europäische Menschrechtskonvention als Grundrechtsverfasung und ihre Bedeutung für Deutschland” (2001) 40 Der Staat 365; I. Pernice, “BVerfG, EGMR und die Rechtsgemeinschaft” (2004) 15 EuZW 705; and J. Limbach, “Die Kooperation der Gericht in der zukünftigen europäischen Grundrechtsarchitektur” (2000) 27 EuGRZ 417. 78 BGBl. 1952, II, 686, and reissued recently: BGBl. 2003, II, 1054. 79 Unlike in Austria which incorporated it into the Constitution in 1964: Verfassungsnovelle, BGBl. 1964/59. See generally A. Drzemczewski, European Human Rights Convention in Domestic Law: A Comparative Study, Clarendon Press, Oxford (1983) chap. 4, at 92 ff.; A. Kohl, “The Influence of the Human Rights Convention on Austrian Law” (1970) 18 AJCL 237, at 240; K. Berchtold “The European Convention on Human Rights and the Austrian Legal Order: Some Experiences” (1975) VIII RDH/HRJ 383, at 384; M. Nowak, “General considerations on the ECHR from the point of view of public international law and domestic law,” in F. Ermacora, M. Nowak & H. Tretter (eds.), Die Europaïsche Menschenrechtskonvention in der Rechtsprechung der österreichische Rechtsordnung, W. Braumüller, Wien (1983), at 48. 80 Görgülü, 14 Oktober 2004, 2 BvR 1481/04: BVerfGE 111, 307, at para. 46. See H.-J. Cremer, “Zur Bindungswirkung von EGMR Urteilen/Anmerkung zum Görgülü-Beschluß des BVerfG vom 14. 10. 2004” (2004) 31 EuGRZ 686; U. Di Fabio, “Das Bundesverfassungsgericht und die internationale Gerichtsbarkeit,” in A. Zimmermann & U. Heinz (eds.), Deutschland und die internationale Gerichtsbarkeit (2004), 107; and R. Hoffmann, “The German Federal Constitutional Court and Public International Law: New Decisions, New Approaches?” (2004) 47 GYIL 9. 81 Görgülü, 14 Oktober 2004, 2 BvR 1481/04: BVerfGE 111, 307, at paras. 61–66.

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Rechtsstaat principle, which can be challenged by a constitutional complaint before the FCC.82 C. Transfers of Sovereignty and European Integration 1. Introduction Having already examined the essential core of sovereignty subsisting in the Constitution and interpreted by the FCC, it is necessary to examine how Germany—and, in particular, the FCC—has managed to balance the requirements of the eternity clause with the demands of European integration. In this sense, two periods are relatively easy to discern: first, the original German membership of the EEC, as achieved under Constitution Art. 24 (C.II.); and, secondly, the continued membership of the EU, post Maastricht Treaty, as based on new Constitution Art. 23 (C.III.). These periods and their respective case-law will now be addressed in turn. It will be seen that an initial ‘integrationist’ approach by the FCC during the 1960s and early 1970s, gave way to caution on human rights protection from the mid 1970s in a series of cases (usually referred to in the text as Internationale Handelsgesellschaft, Steinike & Weinlig, and Wünsche Handelsgesellschaft but which, as will be explained in the relevant sections, are also referred to colloquially in German as Solange I, Vielleicht, and Solange II, respectively). Eventually, this led to the FCC evolving an increasingly ‘state-centric’ attitude on protecting the core of sovereignty in the face of the increasing demands of deepening integration in the 1990s and 2000s. 2. Transfers of the Exercise of Sovereignty a. Pre-1992 Constitutional Provisions: EEC Membership According to the provisions of the 1949 Constitution in force at the time of the creation of the EEC and German membership, two provisions are particularly relevant to European integration: (a) the Preamble affirms the will of the German people, in giving itself this new Constitution, “to serve world peace as an equal partner in a united Europe”; and (b) Constitution Art. 24(1) explicitly provides that Germany “may, by legislation, transfer sovereign powers to international institutions”83 and is regarded as the opening norm of national 82 Thus individuals obtain a remedy by which they can demand respect of the ECHR, especially in the ECtHR’s interpretation: M. Hartwig, “Much Ado About Human Rights: The FCC Confronts the European Court of Human Rights” (2005) 6 German LJ 869, at 893; and D. Richter, “Does International Jurisprudence Matter in Germany? – The Federal Constitutional Court’s New Doctrine of ‘Factual Precedent’” (2006) 49 GYIL 51. 83 The German original refers to “zwischenstaatliche Einrichtungen” which may also be rendered “intergovernmental” or “inter-State institutions.” The phrase “sovereign powers” or “sovereign rights” is used to translate the phrase “Hoheitsrechte.”

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sovereignty.84 Pernice has asserted that from the very beginning, Germany was accordingly constituted to be a member of a broader political system.85 The Constitution itself did not take any dogmatic position between monism and dualism: however, the Parliamentary Council, when drafting the Constitution in 1948, preferred a rather dualistic approach by underlining the aim of reunification of the divided Germany.86 The Constitutional Court has also not taken any theoretical position and, in its case-law, has used both concepts.87 In the period of time under consideration in this section and, despite strong academic debate to the contrary,88 a moderated dualistic concept prevailed.89 This German concept of moderated dualism required the passing of the Ratification Act for the EEC and EAEC Treaties,90 in accordance with Constitution Art. 24(1) and Art. 59(2).91 The same procedure was subsequently used in respect of the ratification of the Single European Act in 1986:92 later revisions, as will be seen below, were subject to a different constitutional basis following on from the ratification of the Maastricht Treaty.93 However, the German concept of dualism leads to another matter: the Ratification Act opening the domestic legal order and allowing the taking of direct and prior effect of European norms (under Constitution Art. 24(1)) was only

84 See generally, Ch. Hillgruber, “Artikel 24,” in Schmidt-Bleibtreu, Hofmann & Hopfunf (2008), at 755–770; O. Rojahn, “Artikel 24,” in I. von Münch & P. Kunig (eds.), Grundgesetz-Kommentar, Band 2, C.H. Beck, München (1995), 129, particularly paras. 49–79, at 163–181; Chr. Tomuschat, “Artikel 24,” in R. Dolzer, K. Vogel & K. Graßhof (eds.), Kommentar zum Bonner Grundgesetz (looseleaf ), C.F. Müller Juristische Verlag, Heidelburg (1981, as updated), paras. 8–99, at 15–73. 85 I. Pernice, “Constitutional Law Implications for a State Participating in a Process of Regional Integration: German Constitution and ‘Multilevel Constitutionalism,’” in E. Riedel (ed.), German Reports on Public Law, Vol. 12 Beiträge zum ausländischen und vergleichenden öffentlichen Recht, Nomos Verlag, Baden-Baden (1998), 40, at 41. 86 M. Hilf, “General Problems of Relations between Constitutional law and International Law,” in Ch. Starcke (ed.), Rights, Institutions and Impact of International Law according to the German Basic Law, Nomos Verlag, Baden-Baden (1987), section 8, 177, at 180. 87 Konkordat, 21 März 1957, 1 BvR 65/54: BVerfGE 6, 290, at 295; and Vermögenswerte in der Schweiz, 8 Juni 1977, 1 BvL 4/75: BVerfGE 45, 83, at 96. 88 A. Verdross & B. Simma, Universelles Völkerrecht: Theorie und Praxis, 3rd ed., Duncker und Humblot, Berlin (1984), 55ff; and I. Seidl-Hohenveldern, Völkerrecht, 5th ed., Heymann, Köln (1984), No. 377. 89 M. Schweitzer, Staatsrecht, Vol. III, C.F. Müller, Heidelburg (1986), 11ff; and W. Rudolf, Völkerrecht und deutsches Recht, Mohr, Tübingen (1967), at 283ff. 90 BGBl. 1957, II, 753. Germany had similarly passed an earlier ratification statute to ratify the ECSC Treaty: BGBl. 1952, II, 448. 91 Constitution Art. 59(2) reads: “Treaties which regulate the political relations of the Federation or relate to matters of federal legislation requires the consent or the participation, in the form of a federal statute, of the bodies competent in any specific case for such federal legislation. As regards administrative agreements, the provisions concerning the federal administration are applicable.” 92 BGBl. 1986, II, 1102. G. Ress, “Das deutsche Zustimmungsgesetz zur Einheitlichen Europäischen Akte” (1987) 14 EuGRZ 361. 93 See below at Chapter Three, point C.2.b.

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an ordinary statute voted on by a simple majority. The FCC, possessing the competence to review the constitutionality of statutes, has never hesitated in declaring itself competent in examining all statutes, including treaty ratification statutes (Vertragsgesetze).94 The FCC95 further held96 that transfers of sovereignty97 under Constitution Art. 2498 did not permit the basic structure99 of the Constitution to be altered and that any such transfer100 under Constitution Art. 24 had to be authorised by statute.101 Moreover,102 such transfers were to be regarded in the same way as laws seeking to make changes to the Constitution, i.e., by requiring a special majority to be achieved in both houses of the German Parliament.103 German public law academia maintained that Constitution Art. 24(1) only permitted a limited and materially defined transfer of sovereign rights to the then Community. The transfer of the entirety of state power and, as a consequence, the accession of Germany to a federal European state, could not be achieved by virtue 94 National Implementation of EEC Regulations, 5 Juli 1967, 2 BvL 29/63: BVerfGE 22, 134, at 146– 152; and Steinike & Weinlig, 25 Juli 1979, 2 BvL 6/77: BVerfGE 52, 187. 95 For a detailed description of the FCC case-law, see J. Kokott, “German constitutional jurisprudence and European integration” [1996] EPL 237 and 413; J. Kokott, “Report on Germany,” in A.M. Slaughter, A. Stone Sweet & J.H.H. Weiler, The European Court and National Courts – Doctrine and Jurisprudence: Legal Change in its Social Context, Hart Publishing, Oxford (1998), chap. 3, at 86–107; and K. Alter, Establishing the Supremacy of European Law, OUP, Oxford (2001), chap. 3, at 64–123. 96 Internationale Handelsgesellschaft, 29 Mai 1974, 2 BvL 52/71: BVerf GE 37, 271, at 279; [1974] 2 CMLR 540, at 550. 97 On sovereignty generally and especially in the face of European integration, see H.G. Koppensteiner, Die Europäische Integration und das Souveränitätsproblem, A. Lutzyer, BadenBaden (1963); H. Quaritsch, Staat und Souveränität, s.v. Die Grundlagen, Vol. 1, Athenäum Verlag, Frankfurt am Main (1970); P. Kirchhof, “Der deutsche Staat im Prozeß der europäischen Integration,” in Isensee & Kirchhof, Vol. VII (1992), chap. 183, 855; A. Randelzhofer, “Staatsgewalt und Souveränität,” in Isensee & Kirchhof, Vol. I (1995), chap. 15, 691; and L. Wildhaber, “Entstehung und Aktualität der Souveränität,” in G. Müller et al. (eds.), Staatsorganisation und Staatsfunktionen im Wandel, Festschrift für Kurt Eichenberger zum 60. Geburtstag, Helbing & Lichtenhahn, Basel (1982), 131ff. 98 See generally, J. Kokott, “Report on Germany,” chap. 3, in Slaughter, Stone Sweet & Weiler (1998), at 86–107. 99 This basic structure was considered above at Chapter Three, point B.1. In particular respect of European law, see Chr. Kirchener & J. Haas, “Rechtliche Grenzen für Kompetenzübertragungen auf die Europäische Gemeinschaft” Juristen Zeitung 1993, 760–771; and I. von Münch, Staatsrecht, Band I, 5th ed., Kohlhammer, Berlin (1993). 100 H. Mosler, “Die Übertragung von Hoheitsgewalt,” in Isensee & Kirchhof, Vol. VII (1992), chap. 175, 599. 101 See generally, J. Schwarze, “Deutscher Landesbericht” in J. Schwarze, The Birth of a European Constitutional Order: The Interaction of National and European Constitutional Law, Vol. 249 Schriftenreihe Europäisches Recht, Politik und Wirtschaft, Nomos Verlagsgesellschaft, Baden-Baden (2001), 109, at 129–136. 102 Eurocontrol I, 23 Juni 1981, 2 BvR 1107, 1124/77 und 195/79: BVerfGE 58, 1, at 35ff. 103 Foster observed: “Article 24 does not appear to allow the complete transfer of sovereign powers from Germany, in effect the dissolution of the German state by abdication of all state power and the transfer of the power to establish further powers to another body. Until recently this point had not been developed as it was generally accepted that a complete transfer of powers could not be envisaged.” See N. Foster, “The German Constitution and E.C. Membership” [1994] PL 392, at 394.

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of Art. 24(1).104 In Internationale Handelsgesellschaft,105 the FCC focused on German constitutional identity and observed106 that Art. 24 “[did] not open up the way to amending the basic structure of the Constitution, which forms the basis of its identity, without a formal amendment to the Constitution, that is, it does not open up any such way through the legislation of the inter-state institution.” Article 24 thus nullified any amendment of the then EEC Treaty which would have destroyed “the identity of the valid constitutional structure” of Germany by encroaching on the structures which went to make it up. The FCC accordingly held that Art. 24 of itself could not cover a transfer of legislative power to an international organisation which altered or amended an ‘inalienable essential feature’ of German constitutional identity, e.g., provisions on fundamental rights protection. Article 24(1) did not allow legislation of the intergovernmental institution to change the basic structure of the Constitution on which its identity was founded.107 Such a change would require a constitutional amendment.108 As will be seen,109 the issue of constitutional identity was raised in the Lisbon Treaty case. b. Constitutional Amendments Post-1992: The European Union Constitution Art. 24 was not regarded as providing a sufficient constitutional basis for the continued progress in European integration under the terms of the Maastricht Treaty110 since the Treaty touched the core of German sovereignty more than the previous European Community Treaties.111 To provide a firmer constitutional basis for the EU under the Maastricht Treaty, Germany adopted a new Art. 23 that essentially codified the conditional conception of European integration previously articulated by the FCC:112

104 Th. Schilling, “Die deutsche Verfassung und die europäische Vereinigung” (1991) 116 AöR 32, at 40–44. 105 Internationale Handelsgesellschaft, 29 Mai 1974, 2 BvL 52/71: BVerfGE 37, 271; [1974] 2 CMLR 540. 106 Ibid., at 278ff; ibid., at 550. 107 Kokott (1998), at 86. 108 BVerfGE 37, 271, at 278; [1974] 2 CMLR 540, at 550. 109 See below at Chapter Three, point E.2.d. 110 N. Kloten, “Europäische Perspektiven nach Maastricht” (1993) 13–14 Europa-Archiv 397, at 406. 111 Since it moved Member States more towards a political union and contemplated common foreign and security policies as well as unification of various internal policies, including judicial policies: Kloten (1993), at 406. 112 See Ch. Hillgruber, “Artikel 23,” in Schmidt-Bleibtreu, Hofmann & Hopfunf (2008), at 733–755, esp. 742–749; Rojahn “Artikel 23,” Band 2 (1995), at 83ff; R. Breuer, “Die Sackgasse des neuen Europaartikels (Art. 23 GG)” 1994 NVwZ 417; P. Wilhelm, “Europa im Grundgesetz: Der neue Artikel 23” 1992 BayVBl. 705; and L. Michael, “Die Wiedervereinigung und die europäische Integration als Argumentationstopoi in der Rechtsprechung des Bundesverfassungsgerichts: Zur Bedeutung der Art. 23 S.2 a.F. und 23 Abs. 1 S.1 n.F. GG” (1999) 124 AöR 583.

the german federal constitutional court81 (1) With a view to establishing a united Europe, the Federal Republic of Germany shall participate in the development of the European Union that is committed to democratic, social, and federal principles, to the rule of law, and to the principle of subsidiarity, and that guarantees a level of protection of basic rights essentially comparable to that afforded by this Constitution. To this end the Federation may transfer sovereign powers by a law with the consent of the Bundesrat. The establishment of the European Union, as well as changes in its treaty foundations and comparable regulations that amend or supplement this Constitution, or make such amendments or supplements possible, shall be subject to paragraphs (2) and (3) of Article 79.

This paragraph guarantees that a complete parliamentary process is observed with the full participation of the Länder and that the fundamental principles of the State set out in Constitution Art. 20113 are also observed before any transfer of powers can occur.114 Fears that the traditional notion of sovereignty (the classic criterion of state quality of Germany under Constitution Art. 79(3))115 could no longer act as a brake on the dynamic process of integration and that Maastricht Treaty ratification would result in the permanent and irreversible extension of EC and EU competences, led to a challenge, before the FCC, on the constitutionality of such ratification.116 The FCC held that Constitution Art. 23 was subject to the principle of democracy under Constitution Art. 38,117 which prohibited the dilution of the legitimacy of exercising state power through the electoral process. In accepting the arguments put by the petitioner—that since German citizens could influence law-making in the EU by electing members to the German Parliament, the Parliament had to be able to control the power it delegated to the EU by means of Constitution Art. 23—the FCC held that the EU could not develop further by an amendment to the basic treaty instruments or by an extension of the EU’s powers without the approval of two thirds of each house of the Parliament.

113 See above at Chapter Three, point B.1. 114 For a more general discussion of Constitution Art. 23, see U. di Fabio, “Der Neue Artikel 23 des Grundgesetzes,” (1993) 32 Der Staat 191ff. Some observers took the view, however, that the addition of Art. 23 was superfluous because Constitution Arts. 24 and 25, as with all other provisions of the Constitution, had to conform to the basic state principles in Constitution Arts. 20 and 79: K.A. Schachtschneider et al., “Maastricht Urteil: Bemerkungen,” Juristen Zeitung 1993, 751. 115 D. Murswiek, “Maastricht und der Pouvoir Constituant. Zur Bedeutung der verfassunggebenden Gewalt im Prozeß der europäischen Integration” (1993) 32 Der Staat 161, at 163–168; Hanf (1994), at 412. 116 Maastricht, 12 Oktober 1993, 2 BvR 2134 und 2159/92: BVerfGE 89, 155; [1994] 1 CMLR 57. J. Kokott, “Deutschland im Rahmen der Europäischen Union – zum Vertrag von Maastricht” (1994) 11 AöR 207; U. Everling, “Das Maastricht-Urteil des Bundesverfassungsgerichts und seine Bedeutung für die Entwicklung der Europäischen Union (1994) 17 Integration 165; I. Winkelmann (ed.), Das Maastricht-Urteil des Bundesverfassungsgerichts vom 12. Oktober 1993: Dokumentation des Verfahrens mit Einführung, Duncker & Humblot, Berlin (1994); J. Wieland, “Germany in the European Union – The Maastricht Decision of the Bundesverfassungsgericht” (1994) 5 EJIL 259. 117 Constitution Art. 38 reads that “the Members of the German Parliament’s Lower House shall be elected in general, direct, free, equal, and secret elections.”

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The Parliament therefore had to participate in maintaining Germany’s rights as a member of European institutions and in formulating the German government’s EU policy.118 The transfer of the exercise of functions and powers of the Bundestag to EU institutions could occur “to such an extent that the minimum requirements … for democratic legitimation of the sovereign power exercised in respect of citizens are no longer satisfied”:119 this would consequently deprive the democratic principle of its essential content, a matter which would be constitutionally impermissible.120 The FCC’s interpretation of Art. 23 in fact determined that121 the EU would remain predominantly an association of sovereign states (‘Staatenverbund’) and Germany one of the ‘Masters of the Treaties’ (‘Herren der Verträge’), preserving its quality as a sovereign State, even after the entry into force of the Maastricht Treaty. According to the FCC, then, the Treaty regarded Member States as independent and sovereign, and protected their national identities.122 Member States established the EU123 to “exercise some of their sovereignty jointly.” Even after the Maastricht Treaty, Germany would continue to be a member of a ‘Staatenverbund’ that derived its authority solely from the Member States.124 This idea of conferral of authority by the States on the Union and the concept of a Staatenverbund was reiterated in the 2009 Lisbon case,125 in which the FCC—in these matters—largely built and expanded on its reasoning in Maastricht. In Lisbon, the petitioners challenged the constitutionality of three statutes: (i) the Act ratifying the Treaty of Lisbon;126 (ii) the Act amending the Constitution (Arts. 23, 45 and 93);127 and (iii) the Act extending and strengthening the Rights of the Bundestag and the Bundesrat in European Union Matters.128 On the issue of sovereignty, the petitioners essentially argued that the EU’s evolution into a federal State (with the consequent loss of sovereignty by Germany) infringed the competences of the Federal Republic. The Lisbon case repeats the Maastricht formulae in a number of ways: the Member States remain the ‘Masters of the Treaties’129 who have conferred the 118 BVerfGE 89, 155, at 187; [1994] 1 CMLR 57, at 88–89. 119 Ibid., at 171–172; ibid., at 77. 120 Ibid., at 182; ibid., at 84. 121 Ibid., at 190; ibid., at 91. 122 Ibid., at 182–187; ibid., at 84–88. 123 Ibid., at 189; ibid., at 90. 124 Ibid., at 190; ibid., at 88. 125 Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267; [2010] 3 CMLR 13, 276. 126 Gesetz vom 8. Oktober 2008 zum Vertrag von Lissabon vom 13. Dezember 2007: BGBl. 2008, II, 1038. 127 Gesetz zur Änderung des Grundgesetzes vom 8. Oktober 2008: BGBl. 2008, I, 1926. 128 Gesetz über die Ausweitung und Stärkung der Rechte des Bundestages und des Bundesrates in Angelegenheiten der Europäischen Union: BT-Drucksache 16/8489. 129 BVerfGE 123, 267, at 348–349; [2010] 3 CMLR 13, 276, at 334–335.

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exercise of some of their powers on the EU, an example of an ‘international or supranational organization,’130 whose primary Treaty law ‘constituting the powers of the Union’ merely remained an ‘abgeleitete Grundordnung,’ i.e., a derivative legal order. Moreover EU citizenship enjoyed only a derivative status that did not challenge the existence of the German people (‘Staatsvolk’).131 Consequently, the Union remained, as in Maastricht, a ‘Staatenverbund,’ “an association of sovereign States to which sovereign powers are transferred.” But Thym argues132 that whereas the notion of ‘Staatenverbund’ in the Maastricht ruling had mainly served the classification of the legal status quo without any direct impact on further evolution, the Lisbon ruling juxtaposes Staatenverbund with Bundesstaat—federal statehood—thereby transforming Staatenverbund “from a descriptive categorization of the state of European integration into a prescriptive constitutional finality of future developments.”133 Nevertheless, the FCC in Lisbon gives a clear and brief definition of this concept:134 it covers a close long-term association of States which remain sovereign, an association which exercises public authority on the basis of a treaty, whose fundamental order, however, is subject to the disposal of the Member States alone and in which the peoples of their Member States, i.e., the citizens of the States, remain the subjects of democratic legitimation. Against this background, Thym observes135 the Staatenverbund continues to serve as the conceptual underpinning for the derivative character of the European legal order whose ultimate authority rests with the Member States.136 The FCC in Lisbon noted then that the 1949 Constitution thus not only assumes sovereign statehood but also guarantees it137 and such statehood is even protected138 by Constitution Art. 79(3), the ‘eternity clause.’ Integration of Germany 130 Ibid., at 351–352; ibid., at 336. 131 Ibid., at 404–406; ibid., at 365–367. 132 D. Thym, “In the Name of Sovereign Statehood: A Critical Introduction to the Lisbon Judgment of the German Constitutional Court” (2009) 46 CML Rev. 1795, at 1799. 133 Thym notes that such prescriptive, normative understanding of Staatenverbund had always been advocated in the extra-judicial writings of (now former) Constitutional Court Judge Kirchhof: see, e.g., P. Kirchhof, “The European Union of States,” in A. von Bogdandy & J. Bast (eds.), Principles of European Constitutional Law, 2nd ed., Hart Publishing, Oxford and Portland (OR) and C.H. Beck, München (2010), chap. 20, 735, at 741–746 and at 751–761. 134 BVerfGE 123, 267, at 348; [2010] 3 CMLR 13, 276, at 334. 135 Thym (2009), at 1799. 136 BVerfGE 123, 267, at 349–350 and 395–396; [2010] 3 CMLR 13, 276, at 335 and 361–362, in which the FCC also underlines the fact that Art. 50 TEU on the right to withdrawal from the EU emulates the pre-existing option of withdrawal under national constitutional and public international law: see A.F. Tatham, “‘Don’t Mention Divorce at the Wedding, Darling!’: EU Accession and Withdrawal after Lisbon,” in A. Biondi, P. Eeckhout & S. Ripley (eds.), EU Law after Lisbon, OUP, Oxford (2012), 128, at 148–154. For a similar point with respect to the Maastricht ruling, see M. Herdegen, “Maastricht and the German Constitutional Court: Constitutional Restraints for an Ever Closer Union” (1994) 31 CML Rev. 235, at 242–244. 137 Ibid., at 343 and 347–348; ibid., at 331 and 334. 138 Ibid., at 343; ibid., at 331.

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into a European federal State—and the consequent loss of sovereignty—would therefore require the German people freely to adopt a new Constitution,139 according to Constitution Art. 146.140 While the Constitution was open to European integration and enshrined the principle of openness to European law (‘Europarechtsfreundlichkeit’)141—which principle makes its first appearance in German constitutional case-law142—the Member States remained sovereign and transfers of power to the Union had to remain limited and, in principle, revocable,143 with the FCC remaining as the guardian of the Constitution, monitoring and controlling the further transfer of powers (when called upon) in combination with the German legislature and people.144 D. National Constitutional Court Acceptance 1. Introduction The FCC has enjoyed—even to this day—a somewhat tempestuous relationship with the ECJ, as exemplified by the 2009 Lisbon Treaty decision.145 Its position as a protagonist defending the sovereignty of the State, controlling the limits of European integration and protecting the essential core of the constitutional identity of Germany in such integration process is the subject of Section E below. Nevertheless, despite its tenacious attitude to sovereignty preservation in the face of deepening integration, the FCC has—in certain respects—successfully integrated the effects of the ECJ’s constitutionalisation of the Treaties into the domestic legal order. This section seeks to highlight and analyse a number of these related areas. 139 Ibid., at 343–344; ibid., at 331–332. 140 Constitution Art. 146: “This Basic Law, which since the achievement of the unity and freedom of Germany applies to the entire German people, shall cease to apply on the day on which a constitution freely adopted by the German people takes effect. 141 BVerfGE 123, 267, at 344 and 346–347; [2010] 3 CMLR 13, 276, at 332–333. The concept amounts to a conscious innovation derived from the German principle of friendliness towards public international law. The FCC has previously derived from this principle a general rule of interpretation that, in case of doubt, the Constitution as well as all ordinary statutes have to be interpreted as much as possible in conformity with German obligations under public international law: Eurocontrol I, 23 Juni 1981, 2 BvR 1107, 1124/77 und 195/79: BVerfGE 58, 1, at 34; and Eurocontrol II, 10 November 1981, 2 BvR 1058/79: BVerfGE 59, 63, at 89. See generally on this new concept: J. Ziller, “Zur Europarechtsfreundlichkeit des deutschen Bundesverfassungsgerichtes. Eine ausländische Bewertung des Urteils des Bundesverfassungsgerichtes zur Ratifikation des Vertrages von Lissabon” (2010) 65 ZÖR 157. 142 The term had earlier appeared in Polish constitutional case-law: Dec. K 11/03, 27 May 2003: OTK ZU 2003/5A, Item 43, and Dec. K 33/03, 21 April 2004: OTK ZU 2004/4A, Item 31. 143 BVerfGE 123, 267, at 348–350; [2010] 3 CMLR 13, 276, at 334–335. 144 As seen below at Chapter Three, points E.2.b. and E.2.d.-f. 145 Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267; [2010] 3 CMLR 13, 276. On previous cases, see, e.g., Alter (2001), chap. 3, at 64–123.

the german federal constitutional court85 2. Supremacy/Priority of Application

Complying with the traditionally dualist approach of the FCC and German doctrine, Section C above has shown that it was neither the EEC Treaty nor Constitution Art. 24 that formed the basis for the effect of European law internally. Rather it was the German Ratification Act for the Treaties, enacted under Constitution Art. 24(1) and Art. 59(2),146 which contained the requisite (application-of-law) instructions to domestic bodies—including the courts—as to which law was to be applied.147 In this way, it was the Ratification Act that ordered the legal effect of (then) EEC law (including its primacy and direct effect) in the national legal domain.148 The FCC observed in Wünsche149 that Constitution Art. 24(1) made it possible to open up the German legal system in such a way that its exclusive claim to control in its sphere of sovereignty could be withdrawn and room could be given for the direct validity and application of a law from another source within that sphere of sovereignty. However international law did not contain any general rule arising out of the agreed practice of States or undoubted legal acceptance to the effect that States were required to incorporate their treaties into their domestic law and to accord them thereunder such priority of validity or application as against domestic law. Internal priority of validity or application only arose by virtue of an ‘applicationof-law’ instruction to that effect under the domestic law, and that also applied in the case of treaties the content of which required the parties to provide for internal priority of validity or application. However, the FCC continued,150 Art. 24(1) had made it possible constitutionally for treaties which transferred sovereign rights to international institutions and the law established by such institutions to be accorded priority of application as against the internal law of Germany by the appropriate internal applicationof-law instruction. That is what had occurred in respect of the three founding Treaties and the secondary legislation made on their basis by the Community

146 “Treaties which regulate the political relations of the Federation or relate to matters of Federal legislation require the consent or participation, in the form of a Federal law, of the bodies competent in any specific case for such Federal legislation….” 147 In re Kloppenburg, Bundesfinanzhof (“BFH”) 25 April 1985, V R 123/84: BFHE 143, 383. According to the FCC, the direct applicability of Regulations was therefore a combined result of European law demanding direct applicability and German law with its application-of-law instruction in the Acts of Accession: see Wünsche Handelsgesellschaft, 22 Oktober 1986, 2 BvR 197/83: BVerfGE 73, 339; [1987] 3 CMLR 225. 148 W. Roth, “The Application of Community Law in West Germany: 1980–1990,” (1991) 28 CML Rev. 137, at 138. In order to accede to the founding Treaties (and later to the SEA and TEU), the Federal Republic was required to enact a statute making the relevant Treaties applicable in the national system. 149 Wünsche Handelsgesellschaft, 22 Oktober 1986, 2 BvR 197/83: BVerfGE 73, 339, at 374–375; [1987] 3 CMLR 225, at 256. Footnote omitted. 150 Ibid., at 257.

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organs when the German Parliament had passed the ratification statutes to the relevant Treaties under Constitution Arts. 24(1) and 59(2). For example, from the application-of-law instruction of the German Ratification Act for the EEC Treaty, which extended to Art. 189(2) EEC (now Art. 288(2) TFEU), arose the immediate validity of the EEC Regulations and the precedence of their application over internal law. Briefly put, the German dualist concept recognises the primacy of European law for most of the cases involving conflicts between domestic and European norms, but not in cases involving conflicts with the fundamental constitutional principles protected in Constitution Art. 79(3): the implications for this will be examined in Section E below. How then did this approach to ‘application-of-law’ requirements convert into a German judicial recognition of the primacy of European law? Such instruction did, in fact, make the FCC more amenable to principles enunciated by the ECJ. From the beginning in dealing with European law, the FCC relied on the ECJ’s position on the autonomous character of European law. In its first decision, in 1967,151 the FCC held that Community acts no longer needed to be confirmed or ratified (‘bestätigt (‘ratifiziert’)’) in order to take direct effect in the national legal system, and that they could not be modified by Member States. Consequently, through its case-law, the FCC recognised the primacy of European law over national law not in the form of ‘priority of validity’ (Geltungsvorrang) but rather of ‘priority in application’ (Anwendungsvorrang), e.g., in the Alfons Lütticke case.152 The proceedings concerned the complainant German company which claimed, before the local customs office, that the difference in tax rates imposed on imported milk powder as opposed to the domestic product, breached the prohibition on internal discriminatory taxation under Art. 95 EEC (now Art. 110 TFEU). The matter eventually came before the FCC which ruled153 that—since the creation of the common market—German courts had to apply those legal provisions that stemmed from an autonomous non-state sovereign authority and which, on the basis of their interpretation by the ECJ, had direct effect internally and, by being given priority, overlaid and overrode

151 European Community Regulations, 18 Oktober 1967, 1 BvR 248/63 und 216/67: BVerfGE 22, 293, at 296. 152 Alfons Lütticke GmbH (“Milk powder”/”Milchpulver”), 9 Juni 1971, 2 BvR 225/69: BVerfGE 31, 145. This idea would subsequently be followed by the Austrian Constitutional Court based on Constitution Art. 83(2) which states that “no one may be deprived of his lawful judge:” VfGH B2300/95, 11 Dezember 1995, VfSlg. 14390; VfGH B3486/96, 26 Juni 1997, VfSlg. 14889; and VfGH B614/01 and B1642/02, 30 September 2003, VfSlg. 16988. See generally on references from the Austrian courts to the ECJ: G. Reichelt (ed.), Vorabentscheidungensverfahren vor dem Gerichtshof der Europäischen Gemeinschaft – Europäische Erfahrungen und österreichische Perspektiven, Manz, Wien (1998); and C. Stix-Hackl, “Österreichische Gerichte und das Vorabentscheidungsverfahren” [1998] AnwBl. 375. 153 BVerfGE 31, 145, at 173–174.

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inconsistent national law (the so-called ‘priority of application’ of European law domestically). It was only through this concept of priority of application that Community (now Union) nationals could put into effect the subjective rights that they had been granted. Further, the FCC excluded itself from this process, stating that it was not competent to answer the question whether a provision of German law was incompatible with a European law provision invested with priority. In such cases, it was for the national court seised of the matter to ensure the priority of application of Art. 95 EEC (now Art. 110 TFEU) over the conflicting national tax legislation.154 The FCC’s recognition of the priority of application of European law over inconsistent domestic norms155 was reiterated in the Lisbon case.156 According to the FCC,157 the primacy of application of European law thus remained—even with the entry into force of the Lisbon Treaty—an institution conferred under an international agreement, i.e., a derived institution which would have legal effect in Germany only by means of the order to apply the law given by the Ratification Act of the Treaty of Lisbon. This connection of derivation was not altered by the fact that the institution of the primacy of application was not explicitly provided for in the Treaties but has been obtained in the early phase of European integration by means of interpretation by ECJ case-law. Moreover, in respect of Declaration 17 Concerning Primacy annexed to the Treaty of Lisbon,158 the FCC observed that Germany did not recognise an absolute primacy of application of European law, which would be constitutionally objectionable, but merely confirmed the legal situation as the FCC had interpreted it. The foundation and the limit of the applicability of European law in Germany was, according to the FCC,159 the order to apply the law which was contained in the Ratification Act of the Treaty of Lisbon, which could only be given within the limits of the current constitutional order.160 In this respect, it was irrelevant as to

154 This viewpoint was subsequently reaffirmed in the Kloppenburg case when the FCC stated (Kloppenburg, 8 April 1987, 2 BvR 687/85: BVerfGE 75, 223, at 244–245; [1988] 3 CMLR 1, at 20) that Community legal rules had to be given precedence by German courts if they conflicted with national law. Such precedence over subsequent and previous national law was based on an unwritten rule of primary EEC law which, by virtue of the German statutes ratifying the Community Treaties – in conjunction with Constitution Art. 24(1) – had to be applied in the same way as national law. 155 As in Kloppenburg, the priority of application of European law over conflicting national law being reinforced by the existence of an ECJ ruling in the matter was also demonstrated in Alcan (17 Februar 2000, 2 BvR 1210/98: (2000) 35 EuR 257) by reference to Case C-24/95 Land Rheinland-Pfalz v. Alcan Deutschland [1997] ECR I-1591, at 1606. 156 Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267, at 398–399; [2010] 3 CMLR 13, 276, at 362–363. 157 Ibid., at 400; ibid., at 366. 158 Ibid., at 331–332; ibid., at 361–362. 159 Ibid., at 402; ibid., at 364–365. 160 Wünsche Handelsgesellschaft, 22 Oktober 1986, 2 BvR 197/83: BVerfGE 73, 339, at 374 et seq.; [1987] 3 CMLR 225, at 256 et seq.

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whether the primacy of application161 was provided for in the Treaties themselves or in Declaration 17 of the Lisbon Treaty, since the primacy of European law only applied by virtue of the order to apply the law issued by the Act ratifying the Treaties. Lastly, the primacy of application rule only reached as far as Germany approved this conflict of law rule and was permitted to do so:162 it could not displace the original powers of the Member States which had to remain competent to examine whether or not the EU had respected the borderlines that delimited its area of jurisdiction.163 Such approach has been subsequently reconfirmed in the Honeywell case.164 3. Direct Effect The issue of the direct effect of European law before the FCC has largely been affirmed although there are instances of rejection. In the 1971 decision of Lütticke,165 the FCC accepted that Constitution Art. 24(1), by permitting the transfer of sovereign rights to international institutions, would imply at the same time the recognition of the direct effect of acts of European institutions and their priority of application. German courts, the FCC continued,166 had to apply those legal provisions which stemmed from an autonomous non-State sovereign authority and which, on the basis of their interpretation by the ECJ, had direct effect at the municipal level and superimposed themselves upon and displaced conflicting national law. As a result, national law which did not conform to the demands of European law had to remain unapplied. This affirmation was not accepted in such an unproblematic fashion in other Member States—the French Conseil d’Etat was initially dismissive167 and took till 1990 to recognise the principle of direct effect,168 while the Italian Constitutional 161 This point the FCC had already essentially recognised for Community law (see Alfons Lütticke GmbH, 9 Juni 1971, 2 BvR 225/69: BVerfGE 31, 145, at 174). 162 At this point, the FCC referred to M. Nettesheim, “Die Kompetenzordnung im Vertrag über eine Verfassung für Europa” (2004) 39 EuR 511, at 545–546; H. Sauer, Jurisdiktionskonflikte in Mehrebenensystemen: die Entwicklung eines Modells zur Lösung von Konflikten zwischen Gerichten unterschiedlicher Ebenen in vernetzten Rechtsordnungen, Springer Berlin (2008), at 162 et seq.; R. Streinz, Europarecht, 8th ed., Müller, Heidelberg/ München/Landsberg/Berlin (2008), at Rn. 224 et seq. 163 C. Tomuschat, “Lisbon – Terminal of the European Integration Process? The Judgment of the German Constitutional Court of 30 June 2009” (2010) 70 ZaöRV 251, at 262–263. 164 Honeywell, 6 Juli 2010, 2 BvR 2661/06: BVerfGE 126, 286, at 301–303; [2011] 1 CMLR 33, 1067, at 1084–1085. 165 Alfons Lütticke GmbH, 9 Juni 1971, 2 BvR 225/69: BVerfGE 31, 145. 166 Ibid., at 174–175. 167 Syndicat Géneral de Fabricants de Semoules de France: ce 1 mars 1968, Rec. 149; [1970] CMLR 395; and Ministre de l’Intérieur v. Cohn-Bendit: ce 22 décembre 1978, Rec. 524; [1980] 1 CMLR 543. 168 Nicolo: ce 20 octobre 1989, Rec. 190; [1990] 1 CMLR 173; Boisdet: ce 24 septembre 1990, Rec. 251; [1991] 1 CMLR 3; and Rothmans International France SA and Philip Morris France SA; and Arizona Tobacco Products GmbH Export KG and Philip Morris France SA: ce 28 février 1992, Rec. 78 et 81; [1993] 1 CMLR 253.

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Court was finally explicit on this principle in the late 1980s.169 Reaffirmation of the FCC acceptance of this European law principle occurred in Kloppenburg,170 where the direct effect of the Sixth VAT Directive171 was at issue: Germany had failed to transpose the Directive into national law by the relevant deadline.172 While under the terms of the Directive, loan agents were to be exempt from VAT, such exemption was not recognised by German law. The complainant claimed exemption on the basis of the Directive—which exemption had had to be applied to her since the ECJ’s decision in Grad v. Finanzamt Traunstein173—even though it conflicted with the relevant German VAT law. On appeal, the Fiscal Court of Lower Saxony referred the matter to the ECJ which, applying its previous ruling in Becker,174 gave direct effect to the relevant provision of the Sixth VAT Directive.175 On the basis of this ruling, the Fiscal Court allowed the complainant’s appeal but, on further appeal by the tax office, this was overturned by the Federal Fiscal Court (Bundesfinanzhof).176 This federal court refused to grant the complainant the tax exemption sought and ruled that it was unconstitutional for Directives to have any direct effect as long as they had not been properly transposed. She challenged this refusal as unconstitutional before the FCC which, on the point of direct effect (and having discussed the development of this principle by the ECJ177), noted that the effects of a Directive normally reached European citizens only by way of the implementing measures taken by the respective Member State. However, it acknowledged178 that where a Directive had not been duly implemented by a Member State, particularly if it had not been implemented within the specified time limit, the ECJ had granted private individuals the right to invoke, before national courts, the obligations imposed by the Directive as against contrary national law, provided that they fulfilled the criteria for direct effect, i.e., the 169 Provincia autonoma di Bolzano v. Presidente del Consiglio dei ministri: Corte cost. 11 luglio 1989, n. 389: Riv. dir. internaz. 1989, 404; S.p.A. Industria Dolciaria Giampaoli v. Ufficio del Registro di Ancona: Corte cost. 8 aprile 1991, n. 168: Giur. cost. 1991, 327; and Zerini: Corte cost. 23 marzo 1994, n. 117: Giur. cost. 1994, 785. 170 Kloppenburg, 8 April 1987, 2 BvR 687/85: BVerfGE 75, 223; [1988] 3 CMLR 1. 171 Directive 77/388/EEC: OJ 1977 L145/1. 172 It eventually managed to achieve it, through Federal Law of 26 November 1979 (BGBl. 1979, I, 1953) with effect from 1 January 1980. 173 Case 9/70 Grad v. Finanzamt Traunstein [1970] ECR 825. 174 Case 8/81 Becker v. Finanzamt Münster-Innenstadt [1982] ECR 53. 175 Case 70/83 Kloppenburg v. Finanzamt Leer [1984] ECR 1075. 176 In re Kloppenburg, 25 April 1985, VR 123/84: BFHE 143, 383. 177 Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v. Tariefcommissie [1963] ECR 1; Case 9/70 Grad v. Finanzamt Traunstein [1970] ECR 825; Case 20/70 Transports Lesage & Cie SA v. Hauptzollamt Freiburg [1970] ECR 861; Case 23/70 Haselhorst v. Finanzamt Düsseldorf-Altstadt [1970] ECR 881; Case 33/70 SpA SACE v. Finance Minister of the Italian Republic [1970] ECR 1213; Case 8/81 Becker v. Finanzamt Münster-Innenstadt [1982] ECR 53; Case 255/81 R.A. Grendel GmbH v. Finanzamt für Körperschaften in Hamburg [1982] ECR 2301; and Case 70/83 Kloppenburg v. Finanzamt Leer [1984] ECR 1075. 178 Kloppenburg, 8 April 1987, 2 BvR 687/85: BVerfGE 75, 223, at 237–238; [1988] 3 CMLR 1, at 15.

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obligations were clear and unconditional and in this connection needed no further implementing act in order to be applied. The FCC then cited extensively, with approval, from the ECJ ruling in Becker179 (and its discussion on Directives) before stating:180 ….The actual purpose of enabling an individual to invoke a directive is not to extend the Community’s legislative power, but to sanction effectively and, in particular, constitutionally, the member-State’s obligation created by the directive…. No doubt this does amount to a slight development of the law by the Court of Justice … and is not merely an amplification in a particular case of a system of sanctions already provided generally by the Treaty: the sanctioning of the non-fulfilment of directives … by making it possible “to invoke the directive” in an action by the private individual against the member-State, creates a new category of sanction.

Although a novel type of sanction, its main idea fitted in with the structure of the then EEC which had been founded on law and justice, had been aligned by the ECJ precisely with that fundamental structure and had been developed from it. The FCC further observed that the ECJ’s existing case-law on the direct effect of Directives did not overstep the general limits to the scope of the (then) Community’s authority: Directives were not being extended or added to by new kinds of Community act; and Member States’ obligations to obey Directives were not being increased or made more stringent. Rather the efficacy of certain types of Directive was being increased with the aim of greater assurance that Member States comply with them. In fact, the FCC welcomed the ECJ’s interpretative caselaw on direct effect of Directives since, in view of the considerable differences between Member States in implementing Directives, the principle of direct effect of Directives created equality in the application of the law among Community (later Union) nationals.181 4. References to the European Court of Justice The understanding of the FCC in its relationship with the ECJ was enunciated in the Internationale Handelsgesellschaft case,182 where the FCC observed183 that the ECJ had jurisdiction to rule on the legal validity of the norms of European law (including the unwritten ones which it considered to exist) and on their construction. It did not, however, the FCC said, decide incidental questions of German law with binding force on the State. Consequently, statements in the reasoning of ECJ 179 Case 8/81 Becker v. Finanzamt Münster-Innenstadt [1982] ECR 53. 180 Kloppenburg, 8 April 1987, 2 BvR 687/85: BVerfGE 75, 223, at 241–242; [1988] 3 CMLR 1, at 18. Footnote omitted. 181 For further applications for the principle of direct effect, see e.g., Working Hours Equality, 28 Januar 1992, 1 BvL 16/83 und 10/91: BVerfGE 85, 191. 182 Internationale Handelsgesellschaft, 29 Mai 1974, 2 BvL 52/71: BVerfGE 37, 271; [1974] 2 CMLR 540. 183 Ibid., at 281–282; ibid., at 551–552.

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judgments that a particular aspect of a European norm accorded or was compatible in its substance with a constitutional rule of national law (e.g., in the present case, with a guarantee of fundamental rights in the Constitution) constituted nonbinding obiter dicta. In the framework of this jurisdiction, the ECJ determined the content of European law with binding effect for all Member States. Accordingly, under the terms of Art. 177 EEC (now Art. 267 TFEU), German courts had to obtain the ruling of the ECJ before they raised the question of the compatibility of the norm of European law which was relevant to their decision with guarantees of fundamental rights in the Constitution. The FCC continued184 that it could itself – decide incidental questions of Community law in so far as the requirements of Article 177 of the Treaty, which are also binding on the Bundesverfassungsgericht, are not present or a ruling of the European Court, binding under Community law on the Bundesverfassungsgericht, does not supervene.

Yet despite the implication from the wording of the latter paragraph, the FCC has so far never made a reference to the ECJ. Further understanding of its relationship with the ECJ came in Steinike & Weinlig.185 The Frankfurt am Main Court made a reference to the FCC seeking constitutional examination of the question whether Arts. 92–94 EEC (now Arts. 107–109 TFEU)—as interpreted by the ECJ in a preliminary ruling in the same case186 to mean that a national court was, in certain cases, prevented from ascertaining the incompatibility of a national statute with Art. 92 EEC (now Art. 107 TFEU)—were applicable in Germany. The FCC declared the lower court’s reference inadmissible. It noted that the relationship between the European and national legal orders was not one of standing side by side starkly and in isolation—rather these systems were, in many ways, geared to one another, intertwined with one another and exposed to reciprocal influences.187 The FCC continued by observing that the reference procedure amounted to the co-ordination of jurisdictions and was directed at collaboration between the national courts and the ECJ:188 “In the interest of the purpose of the Treaty, of integration, of certainty of law and of equality of application of law, they serve to ensure that Community law is interpreted and applied as uniformly as possible by all courts in the sphere of applicability of the EEC Treaty.” The FCC clearly envisaged the existence of a relationship of transjudicial communication between itself and the ECJ, established through the operation of Art. 177 EEC (now Art. 267 TFEU). The FCC subsequently returned to this point in 184 Ibid., at 281–282; ibid., at 552. 185 Steinike & Weinlig (‘Vielleicht’), 25 Juli 1979, 2 BvL 6/77: BVerfGE 52, 187; [1980] 2 CMLR 531. 186 Case 78/76 Firma Steinike & Weinlig v. Federal Republic of Germany [1977] ECR 595. 187 The FCC cited Art. 215(2) EEC (now Art. 340(2) TFEU) and the general principles referred to in it. 188 BVerfGE 52, 187, at 200–201; [1980] 2 CMLR 531, at 535. ECJ case references omitted.

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Wünsche189 where, having referred to the exclusive competences of the ECJ under Art. 177 EEC, it noted that the legal orders of the Member States and the EEC were in various ways related to each other, interconnected and open to reciprocal effects:190 That becomes particularly clear in the allocation of jurisdiction under Article 177 orientated towards co-operation between the courts of member-States and the European Court. In the interests of the Treaty objectives of integration, legal security and uniformity of application it serves to bring about the most uniform possible interpretation and application of Community law by all the courts within the sphere of application of the EEC Treaty.

This viewpoint was reinforced in the Maastricht decision,191 where the FCC again made reference to the Kooperationsverhältnis (‘relationship of co-operation’ or ‘co-operative relationship’)192 as the basis of its links with the ECJ. Consequently,193 where a Council decision was implemented by EC secondary legislation and constitutional rights were infringed as a result, then the ECJ or the FCC would offer adequate protection of those rights. In this case, the FCC and the ECJ were in a relationship of co-operation for the guarantee of constitutional protection under which they complemented one another. The FCC’s exposition of a fundamental interrelationship between the domestic and European legal orders through the pivotal preliminary reference procedure is laudable, but does not hide the fact that the FCC has never seen fit to use this procedure. Moreover, the Lisbon case does not repeat the offer of a relationship of co-operation but rather states that its novel ultra vires review of European law vis-à-vis the Constitution194 would only be carried out “[if] legal protection cannot be obtained at the Union level.”195 The ECJ will, in this event, have to be seised of a question by the Art. 267 TFEU preliminary reference procedure: in principle, it will be enough for the German court to continue its enforcement of the reference obligation of the federal higher courts.196 The constitutional identity 189 Wünsche Handelsgesellschaft, 22 Oktober 1986, 2 BvR 197/83: BVerfGE 73, 339; [1987] 3 CMLR 225. 190 Ibid., at 368; ibid., at 251–252. 191 Maastricht, 12 Oktober 1993, 2 BvR 2134 und 2159/92: BVerfGE 89, 155; [1994] 1 CMLR 57. 192 On this point, see G. Hirsch, “Europäischer Gerichtshof und Bundesverfassungsgericht – Kooperation oder Konfrontation?” (1996) 49 NJW 2457. Hirsch indicated ((1996), at 2466) that the proper functioning and further existence of the then Community depended on the respect of the ECJ-created principles of autonomy, supremacy, direct and indirect effect of European law, based on a further underlying principle of European law’s integration with national law into one united legal system which was composed, nevertheless, of two distinct but intertwined legal orders: see also Pernice (1998), at 43–44. 193 BVerfGE 89, 155, at 178; [1994] 1 CMLR 57, at 81–82. Later confirmed in Ermächtigung des Krankenkassenverbände für Arztnei- und Hilfsmittelfestbeträge, 17 Dezember 2002, 1 BvL 28, 29 und 30/95: BVerfGE 106, 275, at 294–296. 194 See below at Chapter Three, point E.2.d. for a complete explanation. 195 BVerfGE 123, 267, at 353–354; [2010] 3 CMLR 13, 276, at 337–338. 196 Thym (2009), at 1810. This obligation is discussed below at Chapter Three, point D.4.a.

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review197 set out in the Lisbon case, while arguably requiring the FCC to make a reference to the ECJ, is unlikely to bear such fruit for some time. Nevertheless, the FCC seems to be preparing itself in a gradual manner for this momentous step: e.g., in Data Retention,198 decided after Lisbon, it mentioned the possibility of its making use of the Art. 267 TFEU procedure. Subsequently, its ruling in Honeywell199 seemed to imply that it might itself be under a duty to refer to the ECJ before exercising its ultra vires review:200 Prior to the acceptance of an ultra vires act [by the FCC] of the European bodies and institutions, the ECJ should therefore be afforded the opportunity – in the framework of Art. 267 TFEU – to interpret the Treaties as well as to rule on the validity and interpretation of the acts in question. As long as the ECJ has not yet had the opportunity to clarify the EU law questions which have arisen, the FCC should not determine for Germany the inapplicability of Union law (cf. [Lisbon:] BVerfGE 123, 267, at 353).

The FCC has continued to exhort national courts to refer questions to the ECJ before turning to it. As will be seen,201 it has withdrawn itself from reviewing provisions of EU secondary legislation—even of national measures implementing a Directive—against German fundamental rights provisions. However, even in the case where the relevant Directive leaves the German legislature a degree of latitude in its transposition, the national court—if it is unclear whether and to what degree such EU law leaves this latitude to Member States—is required to make an Art. 267 reference before making a submission to the FCC.202 The FCC’s refusal so far to refer questions is therefore not to say that its attitude is inimical to the ECJ, even post Lisbon. Rather it has been tempered with the desire to transfer the responsibility for making references onto the courts (at whatever instance) in the German system. It has done this in various ways, including (a) acceptance that a court’s failure to make a reference to the ECJ breaches the German constitutional right to a lawful judge; and (b) recognition of the priority of ECJ rulings. a. Lawful Judge Under Constitution Art. 101(1), everyone has a right to their ‘lawful judge’ (‘gesetzli cher Richter’). This provision, which protects the right of the citizen to have their 197 For a full discussion, see below at Chapter Three, point E.2.d. 198 Data Retention, 2 März 2010, 1 BvR 256/08, 1 BvR 263/08 and 1 BvR 586/08: BVerfGE 125, 260, at 308. 199 Honeywell, 6 Juli 2010, 2 BvR 2661/06: BVerfGE 126, 286; [2011] 1 CMLR 33, 1067. Hanf (2010), at 541–546; and Proelß (2011), at 256–261. 200 BVerfGE 126, 286, at 304; [2011] 1 CMLR 33, 1067, at 1085. 201 See at Chapter Three, points E.2.a., E.2.c. and E.3. 202 Review of Statutes Transposing EU Secondary Legislation, 4 Oktober 2011, 1 BvL 3/08: BVerfGE 129, 186, at 200–202; and earlier Data Retention, 2 März 2010, 1 BvR 256/08, 1 BvR 263/08 and 1 BvR 586/08: BVerfGE 125, 260, at 306–307.

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case heard by the lawfully constituted court having jurisdiction in the matter, was intended to prevent the establishment of special courts which might be less impartial than the ordinary courts.203 Article 267(3) TFEU (originally Art. 177(3) EEC, and subsequently renumbered as Art. 234(3) EC) states that a court “against whose decision there is no judicial remedy” is obliged to make a reference to the ECJ when its judgment depends on a question of European law. Until the ECJ’s ruling in Köbler,204 there was no remedy at EU level for individuals against a national court’s decision not to refer to the ECJ. However, the FCC has itself created such a remedy: having already considered the matter,205 it confirmed its view in Wünsche thereby recognising the ECJ as being a ‘lawful judge’ within the terms of the second sentence of Constitution Art. 101(1), read in conjunction with Art. 234(3) EC (ex-Art. 177(3) EEC): although the FCC had not previously determined the ECJ to be a ‘statutory court’ within the meaning of Constitution Art. 101(1), the ECJ nevertheless fulfilled the FCC’s own criteria206 for a legally-established judicial organ, independent and impartial, and satisfying the rule of law requirements of due process. The FCC stated:207 The functional interlocking of the jurisdiction of the European Communities with those of the member-States, together with the fact that the Community Treaties, by virtue of the instructions on the application of law given by the ratification legislation under Articles 24(1) and 59(2), first sentence, of the Constitution, and the subordinate law passed on the basis of the Treaties are part of the legal order which applies in the Federal Republic and have to be adhered to, interpreted and applied by its courts, give the European Court the character of a statutory court….

This was predicated on the fact that the German ratification statutes of the several Community Treaties conferred on the ECJ judicial functions which included in particular the ECJ’s jurisdiction to give preliminary rulings. Such classification of the ECJ as a statutory court under Constitution Art. 101(1) was not impeded by reason of the fact that a reference for a preliminary ruling amounted to an objective interim procedure in which the parties to the main action had no right of application of their own and which primarily served the

203 R. Müller-Terpitz, “Artikel 101,” in Schmidt-Bleibtreu, Hofmann & Hopfunf (2008), 2085–2100. 204 As will be subsequently examined, the ECJ in that case provided a remedy for damages arising from judicial liability: Case C-224/01 Köbler v. Austria [2003] ECR I-10239 and its related case-law, e.g., Case C-173/03 Traghetti del Mediterraneo SpA v. Italy [2006] ECR I-5177. For an analysis of this case, see below at Chapter Six, point C.4.b. 205 See, e.g., Firma E.K., 13 Oktober 1970, 2 BvR 618/68: BVerfGE 29, 198. 206 Eurocontrol II, 10 November 1981, 2 BvR 1058/79: BVerfGE 59, 63, at 91. 207 Wünsche Handelsgesellschaft, 22 Oktober 1986, 2 BvR 197/83: BVerfGE 73, 339, at 367–368; [1987] 3 CMLR 225, at 251. U. Wölker, “Wann verletzt eine Nichtvorlage an den EuGH die Garantie des gesetzlichen Richters?” (1988) 15 EuGRZ 97; and Chr. Vedder, “Ein neuer gesetzlicher Richter?” (1987) 40 NJW 526.

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purpose, inter alia, of interpreting European law. Rather, in the eyes of the FCC, such a reference formed part of a uniform legal dispute, for the outcome of which the ECJ’s ruling was decisive. The right of an individual involved in the main action to demand implementation of the guarantees in Art. 101(1) also extended to the observation of the duty, set out in Art. 177 EEC (now Art. 267 TFEU) to commence proceedings for a ruling regardless of the legal nature of the proceedings and the rules which constituted its substance. However, having ruled that the ECJ could be a ‘lawful judge’ within the terms of Constitution Art. 101(1), the FCC found in Wünsche that such right had not been infringed in that case. Instead it turned to exercise this guarantee shortly after in Kloppenburg.208 In that case, the FCC found that the Federal Fiscal Court (Bundesfinanzhof) was bound by the interpretation of the Sixth VAT Directive, given by the ECJ in a preliminary ruling in answer to a reference from a German lower fiscal court. If the Federal Fiscal Court had not wanted to follow the view of the law stated by the ECJ, the FCC said, then it should have requested another preliminary ruling from the ECJ—since the interpretation of the Sixth VAT Directive was a question on which the Federal Fiscal Court had to give judgment. Such reference would have had to include its objection to the ECJ’s previous ruling, and particularly its competence (which, according to the Federal Fiscal Court, it did not possess), to develop European law. According to the FCC,209 the objectively arbitrary way in which the Federal Fiscal Court had avoided the obligation to request a further reference from the ECJ constituted a breach of the fundamental constitutional right to a lawful judge (statutory court) of Mrs. Kloppenburg. She was therefore able to seise the FCC due to this infringement of her constitutionally guaranteed right, allowing it to reverse the judgment of the Federal Fiscal Court on the grounds of violation of the right to a lawful judge and to refer the case back to that Court for new consideration— either to make a new reference to the ECJ in the terms the FCC had already outlined or to accept the earlier reference made by the lower fiscal court and so allow Mrs. Kloppenburg’s claim for repayment of tax. The FCC went on to develop this line of case-law and thus to establish210 that a German court—which had not referred a question to the ECJ—violated the principle of a lawful judge only if either (a) the court of final instance had gone fundamentally against a decision of the ECJ on a question that was material to the settlement of the dispute; or (b) in the absence of an ECJ ruling, it had manifestly gone beyond its discretionary power to decide whether it must refer the question to the ECJ. 208 Kloppenburg, 8 April 1987, 2 BvR 687/85: BVerfGE 75, 223; [1988] 3 CMLR 1. 209 Ibid., at 245; ibid., at 20–21. 210 Exclusion of Part-time Employees from Company Pension Scheme, 5 August 1998, 1 BvR 264/98: (1999) 52 NJW 46 L; 1998 NZA 1246.

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More recently however, it has declared211 that the refusal to refer is generally only acceptable in the light of Constitution Art. 101(2) if the relevant EU norms have already been the subject of an ECJ decision or if the correct application of EU law is evident in a way that leaves no room for doubt. In thereby accepting the CILFIT doctrine, the FCC basically found that a national court would only comply with the right to a lawful judge if it comprehensively established that the ECJ had already decided the relevant question on EU law or that the correct answer to such question was evident. In cases of mandatory references to the ECJ, the fundamental right to a lawful judge is infringed if a German court does not try sufficiently to be informed of the relevant European law and therefore misjudges its obligation to refer.212 In addition, claims on the alleged a violation of the duty to refer to the ECJ and with it the right to a lawful judge must state clearly whether the action concerned the interpretation of European law rather than a question of application of a European legal rule to the individual case; failure to do so renders the claim inadmissible.213 However, it must also be emphasised, that the FCC (for many years) interpreted the right to a lawful judge through the ECJ reference procedure as binding all domestic courts except itself.214 Honeywell215 further added to this case-law. The case, it will be recalled, concerned inter alia the complaint that the Federal Labour Court should have referred

211 T. Gmbh & Co. KG (Preliminary Reference Concerning the Collective Redundancies Directive), 25 Februar 2010, 1 BvR 230/09: (2010) 37 EuGRZ 247; [2010] 3 CMLR 47, 1286, subject to the rider in Honeywell, 6 Juli 2010, 2 BvR 2661/06: BVerfGE 126, 286, at 316; [2011] 1 CMLR 33, 1067, at 1093. See M. Bäcker, “Altes und Neues zum EuGH als gesetzlichem Richter” (2011) 64 NJW 270, at 271–272; and A. Proelss, “Enforcement of the Obligation to Refer to the European Court of Justice Under Article 267(3) TFEU” (2010) 53 GYIL 927. 212 Rinke, 9 Januar 2001, 1 BvR 1036/99: (2001) 54 NJW 1267 (present author’s translation): “Accordingly, there is an infringement of the obligation to make a reference particularly in those cases where a court of final instance basically fails to comply with its obligation. There is also an infringement where the ECJ has not given judgment on an issue of Community law that is liable to determine the outcome of a case or if its existing rulings do not perhaps exhaustively deal with the issue. If it appears that a further development of the case-law of the ECJ is not merely a remote possibility, in such a way there is an infringement of the second sentence of Constitution Art. 101(1) according to the FCC if a court of competent jurisdiction of final instance exceeds its discretion in such cases to an unacceptable degree. This can particularly be the case where it is manifestly possible to take issue with the position adopted by that court on a question of Community law on which the outcome in the main case turns. The FCC could basically only conduct its review on the basis of this rule if it were adequately acquainted with the reasons why the court of final instance ruling on the merits had declined to make a reference for a preliminary ruling to the ECJ.” 213 Biobronch Cough Sweets, 30 Januar 2002, 1 BvR 1542/00: (2002) 55 NJW 1486. 214 P. Sensburg, “Die Vorlagepflicht an den EuGH: Eine einheitliche Rechtsprechung des BVerfG” (2001) 54 NJW 1259; and F.C. Mayer, “Das Bundesverfassungsgericht und die Verpflictung zur Vorlage an den Europäischen Gerichtshof” (2002) 37 EuR 239. 215 Honeywell, 6 Juli 2010, 2 BvR 2661/06: BVerfGE 126, 286, at 315–317; [2011] 1 CMLR 33, 1067, at 1092–1094.

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to the ECJ the question as to whether or not the principle of protection of legitimate expectations under EU and national law required the ECJ ruling in Mangold216 to be subject to a time restriction and not enjoy retroactive effect. In this respect the FCC reaffirmed its previous case-law, according to which the standard of arbitrariness which it generally applied when interpreting and applying competence norms also applied to the obligation to make a reference to the ECJ in accordance with Art. 267(3) TFEU.217 It continued:218 The standard of arbitrariness is also applied where a breach of Art. 267(3) TFEU is under discussion. The FCC is not required by EU law to review fully the violation of the obligation to submit under EU law and to orientate it in line with ECJ case-law on Art. 267(3) TFEU …. Article 267(3) TFEU does not require any additional legal means for reviewing the content of the obligation to make a reference… A court of last instance under Art. 267(3) TFEU is by definition the last instance before which individuals can assert the rights vested in them on the basis of EU law (Case C-224/01 Köbler v. Austria [2003] ECR I-10239, at para. 34).

Thus the courts with special jurisdiction (like the Federal Labour Court) maintained, through the interpretation and application of Union law, an area of discretion for their own assessment and judgment. The FCC was only required to guard the observance of the limits of this discretion and was thus not the superior court for the review of references to the ECJ. The Mangold approach to the FCC’s parameters of intervention in such matters was subsequently affirmed219 in Reprographic Levy under the Copyright Act.220 The FCC observed that the Federal Supreme Court had evidently not considered either EU law or the need for an ECJ reference, even though there were strong arguments in favour of the obligation to refer. In observing its parameters for intervention as regards infringement of the right to a lawful judge, the FCC held that the decisive factor was not primarily the justifiability of the domestic court’s interpretation of the substantive EU law relevant to the case in question, but rather the justifiability of its handling of the obligation to refer under Art. 267(3) TFEU.221

216 Case C-144/04 Mangold v. Helm [2005] ECR I-9981. 217 Firma E.K., 13 Oktober 1970, 2 BvR 618/68: BVerfGE 29, 198, at 207; and Absatzfonds, 31 Mai 1990, 2 BvL 12, 13/88, 2 BvR 1436/87: BVerfGE 82, 159, at 194. 218 Honeywell, 6 Juli 2010, 2 BvR 2661/06: BVerfGE 126, 286, at 316; [2011] 1 CMLR 33, 1067, at 1093. 219 M. Schröder, “Die Vorlagepflicht zum EuGH aus europarechtlicher und nationaler Perspektive” (2011) 46 EuR 808, at 816–826. 220 Reprographic Levy under the Copyright Act, 30 August 2010, 1 BvR 1631/08: (2011) 64 NJW 288. See Bächer (2011), at 271–272. 221 Subsequently applied, e.g., in Safeguarding Employees’ Rights in Privatisation, 25 Januar 2011, 1 BvR 1741/09: BVerfGE 128, 138; Le-Corbusier-Möbeln, 19 Juli 2011, 1 BvR 1916/09: BVerfGE 129, 78; Review of Statutes Transposing EU Secondary Legislation, 4 Oktober 2011, 1 BvL 3/08: BVerfGE 129, 186; and V. GmbH, 29 Mai 2012, 1 BvR 640/11: 2012 NVwZ 1033. See also M. Foerster, “Zur Vorlagepflicht an den EuGH bei Unionsrecht umsetzendem nationalen Recht” (2012) 67 JZ 511–518.

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b. ECJ Ruling Priority This particular approach was expounded in Steinike & Weinlig.222 Here the FCC ruled that domestic rules,223 allowing a ruling on constitutionality to be sought before it, did not confer jurisdiction on it to declare EEC Treaty provisions to be applicable in Germany contrary to the effect which the ECJ had already attributed to such Treaty provisions in a preliminary ruling in the same (original) proceedings. It further stated:224 The judgments of the European Court of Justice issued in accordance with Article 177 EEC Treaty [now Art. 267 TFEU] are binding on all national courts concerned with the same original proceedings. This follows from the sense and purpose of Articles 177 and 164 EEC [now Art. 267 TFEU and Art. 19 TEU]. In this respect, they are also binding on the Bundesverfassungsgericht in proceedings involving the interlocutory review of norms under Article 100(1) GG.

The FCC reinforced its position, in the final paragraph of its judgment, where it clearly affirmed the priority of the ECJ rulings in interpreting primary European law (i.e., Treaty provisions) although it left open the question with respect to secondary or derived European law:225 “The Court leaves open whether and, if so, to what extent—for instance, in view of political and legal developments in the European sphere occurring in the meantime—the principles contained in [Solange I] can continue to claim validity without limitation in respect of future references of norms of derived Community law.” Thus German courts—including the FCC—were bound to accept as binding on them the ECJ’s interpretation of Treaty Articles. This was extended to secondary legislation in the Kloppenburg case226 which concerned the rulings of the ECJ giving direct effect to certain provisions of Directives and the failure of the Federal Fiscal Court to follow them.227 More recent confirmation of the FCC itself being bound by ECJ rulings came in the Honeywell case228 when, in reference to the possible need for an ultra vires review in that case, the FCC held that it had to comply with such rulings in principle as a binding interpretation of EU law. Consequently, the FCC, through these and other cases, clearly reinforced the priority of the ECJ’s interpretations of provisions both of the Treaties as well as of European secondary legislation. Such interpretations were generally applicable

222 Steinike & Weinlig, 25 Juli 1979, 2 BvL 6/77: BVerfGE 52, 187; [1980] 2 CMLR 531. 223 Constitution Art. 100(1) and CCA ss. 80ff. 224 BVerfGE 52, 187, at 201–202; [1980] 2 CMLR 531, at 535. 225 Ibid., at 202–203; ibid., at 537. Emphasis in original. 226 Kloppenburg, 8 April 1987, 2 BvR 687/85: BVerfGE 75, 223; [1988] 3 CMLR 1. 227 Ibid., at 240; ibid., at 17. Footnote omitted. 228 Honeywell, 6 Juli 2010, 2 BvR 2661/06: BVerfGE 126, 286, at 304; [2011] 1 CMLR 33, 1067, at 1085.

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and subject only to the ultimate review power of the FCC itself.229 Nevertheless, such approach is not a blanket one: as will be seen subsequently in the latter part of this Chapter.230 E. Limits to National Court Acceptance 1. Introduction The FCC—like higher, supreme or constitutional courts in certain other EU Member States231—has not accepted without question the constitutionalisation of the European legal order, as created and managed by the ECJ. In this respect, a number of aspects have been challenged or confronted by the FCC but, so far, they have not led to open conflict with their European counterpart although (as will be examined later) its ruling in the Lisbon case232 could render an eventual clash more likely. 2. Essential Core as Limitation to Integration One initial remark should be made as regards the eternity clause—Constitution Art. 79(3)—in the context of Community/Union membership. This clause is imposed on all powers constituted through the Constitution since European law itself has its basis in the Constitution;233 thus European law is also subject to the eternity clause. As a result, any provision of European law which challenges one of the principles protected by Art. 79(3) would therefore not be applicable in Germany. The case-law of the FCC has borne out this proposition, where initially the FCC focused on the limits as constituted by the strong constitutional protection afforded to fundamental rights. In the Maastricht ruling, the emphasis switched to the principle of democracy as underlying the limits to integration and while this continued into the Lisbon case, the latter ruling further enhanced these limits by emphasising the FCC’s role in supervising the boundaries of those powers

229 Ibid.; ibid. 230 See below at Chapter Three, points E.2.-E.3. 231 See generally J. Rideau (ed.), Les Etats membres de l’Union européenne. Adaptations – Mutations – Résistances, L.G.D.J., Paris (1997); A.M. Slaughter, A. Stone Sweet & J.H.H. Weiler (eds.), The European Court and National Courts – Doctrine and Jurisprudence: Legal Change in its Social Context, Hart Publishing, Oxford (1998). 232 Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267; [2010] 3 CMLR 13, 276. 233 D. Hanf, “Le jugement de la Cour constitutionnelle fédérale allemande sur la constitutionnalité du Traité de Maastricht: Un nouveau chapitre des relations entre le droit communautaire et le droit national” (1994) 30 RTDE 391, at 397.

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conferred by the Member States on the EU (by ultra vires review) and in protecting Germany’s own constitutional identity. a. Fundamental Rights In Internationale Handelsgesellschaft (‘Solange I’)234 the plaintiff had requested the Frankfurt Administrative Court to annul a decision of the ECGF235 based on two Regulations. The company contended that the Regulations ought not to be applied as they were contrary to the fundamental human rights provisions of the Constitution. Having received the decision of the ECJ, the Frankfurt Administrative Court then made a reference to the FCC to discover whether or not the basis of the company’s argument was correct. This latter Court236 denied the full supremacy of European law, essentially because the Constitution enshrined certain fundamental rights which did not benefit from similar protection in European law:237 “The part of the Constitution dealing with fundamental rights is an inalienable essential feature of the valid Constitution of the Federal Republic of Germany and one which forms part of the constitutional structure of the Constitution. Article 24 of the Constitution does not without reservation allow it to be subjected to qualifications.” Considering the fact that the transfer of sovereign powers under Art. 24 had to be compatible with the German constitutional order, if powers were transferred to a system (i.e., the EEC) which failed to provide the same protection then German courts still retained the right to test the legislation coming from such system (i.e., European law) for compliance with the national scheme of fundamental rights as long as (‘solange’) European law was deficient. This deficiency was caused by the absence, at that time, both of a directly-elected European Parliament to which the Community organs with legislative powers were responsible on a political level, and of a “codified catalogue of fundamental rights” comparable to that in the German Constitution. Accordingly, at least in theory, the FCC qualified and limited the supremacy of European law over domestic law. However, having thus decided these points with 234 Internationale Handelsgesellschaft, 29 Mai 1974, 2 BvL 52/71: BVerfGE 37, 271; [1974] 2 CMLR 540. E. Bülow, “Case Note” (1974) 1 EuGRZ 19; J. Frowein, “Europäisches Gemeinschaftsrecht und Bundesverfassungsgericht,” in Ch. Starck, Bundesverfassungsgericht und Grundgesetz: Festgabe aus Anlaß des 25jährigen Bestehens des Bundesverfassungsgerichts, Band II, J.C.B. Mohr (Paul Siebeck) Verlag, Tübingen (1976), 187ff.; H. Golsong, Case Note (1974) 1 EuGRZ 17; H.P. Ipsen, “Das Bundesverfassungsgericht löst die Grundrechtsproblematik, Zum ‘Mittlerweise’-Bescluß des 2. Senats vom 22. Oktober 1986” (1987) 22 EuR 1; Kokott (1998), at 83–87 and at 118–121; U. Scheuner, “Der Grundrechtsschutz in der Europäischen Gemeinschaft und Verfassungsrechtsprechung” (1975) 100 AöR 30. 235 ECGF, the respondent, was the national cereals intervention agency. 236 Having reiterated its previous stance in European Community Regulations, 18 Oktober 1967, 1 BvR 248/63 and 216/67: BVerfGE 22, 293. 237 BVerfGE 37, 271, at 280; [1974] 2 CMLR 540, at 550.

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regard to its own jurisdiction, the FCC next considered the substantive issue by ruling that the European measures in question did not violate German constitutional provisions. This ruling consequently represented a potential conflict between the case-law of the ECJ (which, under the then Arts. 173 and 174 EEC had the exclusive right at that time—now shared with the General Court238—to review secondary European legislation) and that of the FCC. Internationale Handelsgesellschaft had represented a warning shot across the bows of the ECJ (and the EEC institutions) to take human rights seriously,239 thereby stimulating the ECJ to develop fundamental rights protection as part of the general principles of European law.240 As stated, this case amounted to a potential for conflict but one which the FCC did not act upon—having drawn its ‘line in the sand,’ it refrained from any further development of the constitutional review threat for many years.241 This matter was substantially resolved in 1986 in the case of Wünsche Handelsgesellschaft (‘Solange II’)242 where the FCC stated that, as long as (‘sol ange’) the general level of protection of human rights under Community law (as it then was) remained adequate by German standards, it would no longer entertain proceedings to examine secondary European legislation for compliance with national constitutional provisions relating to fundamental rights.243 This decision amounted to a waiver of the right of review as long as the then Community protection could be equated with that provided under the

238 Art. 256 TFEU. The General Court was originally set up under the 1986 SEA and was formerly known the Court of First Instance. 239 J. Coppel & A. O’Neill, “The European Court of Justice: Taking Rights Seriously?” (1992) 29 CML Rev. 669; and, for a contrary opinion, see J.H.H. Weiler & N. Lockhart, “‘Taking Rights Seriously’ Seriously: The European Court of Justice and its Fundamental Rights Jurisprudence - Part I” (1995) 32 CML Rev. 51. 240 On the actual developments, see B. de Witte, “The Past and Future Role of the European Court of Justice in the Protection of Human Rights,” in P. Alston (ed.), The EU and Human Rights, OUP, Oxford (1999), 859. 241 Steinike & Weinlig (“Vielleicht”), 25 Juli 1979, 2 BvL 6/77: BVerfGE 52, 187; [1980] 2 CMLR 531; and Eurocontrol I, 23 Juni 1981, 2 BvR 1107, 1124/77 und 195/79: BVerfGE 58, 1. 242 Wünsche Handelsgesellschaft, 22 Oktober 1986, 2 BvR 197/83: BVerfGE 73, 339; [1987] 3 CMLR 225. J. Frowein, “Case Note,” (1988) 25 CML Rev. 201. 243 Despite the absence of a Community Bill of Rights, the FCC reached its decision on three grounds: (i) the development by the ECJ of a case law on the protection of fundamental human rights within the Community: e.g., Case 4/73 Nold v. Commission [1974] ECR 491; Case 44/79 Hauer v. Land Rheinland-Pfalz [1979] ECR 3727; Case 222/84 Johnston v. RUC Chief Constable [1986] ECR 1651; (ii) the acceptance by the ECJ that any gaps in Community protection could be plugged by reference to the European Convention on Human Rights as an authoritative source of law; and (iii) the Declaration of 5 April 1977 of the European Parliament, the Council and the Commission to respect fundamental rights in the exercise of their powers (OJ 1977 C103/1), confirmed by the European Council meeting of 7 and 8 April 1978 (Bull. EEC, Supp. 3/78, 5). Although not formal treaty law, these two documents were regarded by the FCC as having great legal significance as an expression of the common view of the Member States and the Institutions.

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Constitution.244 Although the FCC did not conceive of any reduction or deterioration in the protection offered, it nevertheless did not give up its right to apply national provisions protecting fundamental human rights to European laws in such an eventuality. The FCC wanted to preserve its final authority to intervene where real problems concerning the protection of fundamental rights in European law could arise.245 b. Democracy The passing of the necessary German Ratification Act for the TEU occurred in 1992 without any real debate or call for a referendum on continued European integration.246 However, before the Federal President signed the formal instrument of ratification, challenges were brought before the FCC focussing on the threat to the constitutionally guaranteed principles of German democracy and sovereignty posed by accession to the TEU, in particular to Constitution Art. 20 (requirement that Germany be a democratic state) and Art. 38 (right to participate in elections to select a government and its policies). The principle of democracy as a fundamental principle of the German constitutional order in fact superseded protection of fundamental rights as the basis for challenging the further deepening of European integration, which change continued into the 21st century. In this Maastricht case,247 the FCC found that such ratification was not contrary to the Constitution and also that amendments made to the Constitution in consequence of the Treaty were not in themselves unconstitutional. However, in its decision, the FCC set certain limits for Germany’s participation in the European Union. The decision underlined the FCC’s belief that—in its view—the concept of sovereignty of the German State was still very important and clearly evinced its intention of maintaining power to review the validity and compatibility of European law with the Constitution. The FCC reiterated the traditional doctrine as regards the mode of incorporation of European law when it considered Constitution Art. 38 would be infringed

244 H.G. Crossland, “Three major decisions given by the Bundesverfassungsgericht (Federal Constitutional Court)” (1994) 19 EL Rev. 202, at 204. 245 As long as the Community system had not developed into a federal structure, questions of sovereignty or final priority, as to sources of law, had to be kept in suspense: J. Frowein, “Note: Solange II” (1988) 25 CML Rev. 201, at 203–204. 246 Gesetz zum Vertrag vom 7. Februar 1992 über die Europäische Union vom 28. Dezember 1992: BGBl. 1992, IIS, 1251. 247 Maastricht, 12 Oktober 1993, 2 BvR 2134 und 2158/92: BVerfGE 89, 155; [1994] 1 CMLR 57. For a full discussion of this decision, see Crossland (1994) at 206–214; F. Wooldridge, “The German Federal Constitutional Court Upholds the Ratification of the Treaty on European Union,” (1994) 5 EBL Rev. 38; N. Foster, “The German Constitution and E.C. Membership” [1994] PL 392, at 401–405; M. Herdegen, “Maastricht and the German Constitutional Court: Constitutional Restraints for an Ever Closer Union” (1994) 31 CML Rev. 235.

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if a statute, which made provision for the direct applicability and effect of supranational European law in Germany, did not clearly set out the specific rights to be transferred. As a consequence, were substantial changes in the integration programmes of the TEU to be made later, the acts thereby authorised would no longer be covered by the ratification statute. Thus the FCC would be in a position to review whether or not legal acts of the European institutions came within the remit of the transfer of sovereign rights permitted by the ratification statute: in this sense, the FCC presages its more detailed discussion of an ultra vires review in the Lisbon case.248 In addition, the FCC restated its opinion on fundamental human rights protection. It considered that greater integration in the EU extended the application of German fundamental rights since the FCC would also provide protection against acts of European institutions. These acts were capable of affecting German citizens and it was the FCC’s task to provide protection, irrespective of the source of the act. Such protection would, however, be provided in a spirit of co-operation249 with the ECJ:250 [T]he Court provides a general safeguard of the essential content of the basic rights [and] thus guarantees this essential content as against the sovereign powers of the Community as well.… However, the Court exercises its jurisdiction on the applicability of secondary Community legislation in Germany in a ‘relationship of co-operation’ with the European Court, under which that Court guarantees protection of basic rights in any particular case for the whole area of the European Communities, and the Constitutional Court can therefore restrict itself to a general guarantee of the constitutional standards that cannot be dispensed with.

It also allowed “review [of] legal instruments of European institutions and agencies to see whether they remain within the limits of the sovereign rights conferred on them or transgress them.”251 The FCC thus reserved252 its right of judicial review not only to the extent that it claimed to decide for itself whether or not an act of the European institutions remained within the limits of the competences conferred on the Community/Union but also in the field of fundamental human rights. While the ECJ would be responsible for the exercise of judicial control over the cases themselves, the FCC enjoyed the right of control as far as the general

248 See below at Chapter Three, points E.2.d.-e. 249 See critically, M. Huber, “Das Kooperationsverhältnis zwischen BVerfG und EuGH in Grundrechtsfragen” (1997) 8 EuZW 517. 250 BVerfGE 89, 155, at 175; [1994] 1 CMLR 57, at 79: Footnotes omitted. The official version is worded somewhat more narrowly than in the English translation: “… das BVerfG (kann) sich deshalb auf eine generelle Gewährleistung des unabdingbaren Grundrechtsstandards (BVerfG 73, 339, 387 = Solange II) beschränken.” 251 Ibid., at 188; ibid., at 89: Footnotes omitted. 252 J. Schwarze, “A German View on the European Charter of Fundamental Rights: Effect on the Bundesverfassungsgericht” (2000) 3 CYELS 407, at 412.

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standard of human rights’ protection in the EC/EU was concerned253—this was the kernel of the relationship of co-operation between the two courts.254 c. Bananas II: Fundamental Rights Protected? The assertion in Maastricht regarding protection of fundamental rights255 seemed to modify the relationship between European law and German fundamental rights which had previously caused great difficulties and which had appeared to be resolved in Wünsche Handelsgesellschaft.256 At the time of Maastricht, it was not clear whether this was a mere temporary, singular attitude (dictated by the context of the decision) or whether it amounted to the first step in a road of possible conflict again between the ECJ and the FCC.257 The conflict arena marked out in theory by the FCC in the Maastricht Case came into practical existence in the socalled ‘Banana Litigation.’258 In its 2000 Bananas II decision,259 the FCC clarified the scope of previous caselaw on the primacy of European law and on its own jurisdiction to review the legality of secondary European legislation in the light of the fundamental rights provisions of the Constitution. In so doing, the FCC reaffirmed its adherence to the Wünsche formula. The background to the case was formed through domestic proceedings brought by the Atlanta Group banana importers, in which an administrative court made a

253 Maastricht: BVerfGE 89, 155, at 175; [1994] 1 CMLR 57, at 79–80; Wünsche: BVerfGE 73, 339, at 387; [1987] 3 CMLR 225, at 265. 254 The relationship of co-operation eventually evolved in a more communautaire way than had been thought possible at the time of Maastricht: J. Limbach, “Inter-Jurisdictional Cooperation within the Future Scheme of Protection of Fundamental Rights in Europe” (2000) 21 HRLJ 333; G. Nicolaysen & C. Nowak, “Teilrückzug des BVerfG aus der Kontrolle der Rechtmäßigkeit gemeinschaftlicher Rechtsakte: Neuere Entwicklungen und Perspektiven” (2001) 54 NJW 1233. 255 Crossland (1994), at 214. 256 Wünsche, 22 Oktober 1986: BVerfGE 73, 339; [1987] 3 CMLR 225. 257 J. Frowein, “Das Maastricht-Urteil und die Grenzen der Verfassungsgerichtsbarkeit” (1994) 54 ZaöRV 1; Chr. Tomuschat, “Die Europäische Union unter Aufsicht des Bundesverfassungsgerichtes” (1993) 20 EuGRZ 489. The finest articulation in English of the difficulties inherent in the Maastricht Case is to be found in the searching criticism of the decision in M. Zuleeg, “The European Constitution under Constitutional Constraints: The German Scenario” (1997) 22 E.L. Rev. 19–34. 258 Including the FCC in Bananas I, 25 Januar 1995, 2 BvR 2689/94 and 2 BvR 52/95: (1995) 48 NJW 950; (1995) 30 EuR 91; and the ECJ in Case C-280/93 Germany v. Council [1994] ECR I-4973: see G.M. Berrisch, “Zum Bananen-Urteil des EuGH vom 5.10.1994” (1994) 29 EuR 461; M. Vachek, “Das ‘Kooperationsverhältnis’ im Bananenstreit – Eine Anmerkung zum Vorlagebeschluß des Verwaltungsgerichts Frankfurt a.M. vom 24 Oktober 1996 an das Bundesverfassungsgericht” (1997) 38 ZfRV 136. See generally U. Everling, “Will Europe slip on bananas? The Bananas Judgment of the Court of Justice and National Courts” (1996) 33 CML Rev. 401–437; N. Reich, “Judge-made ‘Europe à la carte’: Some Remarks on Recent Conflicts between European and German Constitutional Law Provoked by the Banana Litigation” (1996) 7 EJIL 103–111. 259 Banana Market II, 7 Juni 2000, 2 BvL 1/97: BVerfGE 102, 147; (2000) 21 HRLJ 251. See F. Mayer, “Grundrechtsschutz gegen europäische Rechtsakte durch das BVerfG: Zur Verfassungsmäßigkeit der Bananenmarktordnung” (2000) 11 EuZW 685–689; Nicolaysen & Nowak (2001), at 1235–1236.

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reference to the FCC following a judgment of the ECJ260 which latter had indicated that Regulation 404/93/EC261 on the common system for banana imports, in force at the time, was valid. The FCC held262 inadmissible the reference in which the lower court sought a preliminary ruling on the constitutionality of Regulation 404/93/EC. It can be seen that the FCC dealt with the matter by addressing a procedural—as opposed to a substantive—legal solution, involving the burden and standard of proof. According to the FCC, both constitutional complaints as well as submissions by courts which put forward an infringement by secondary European law of fundamental rights guaranteed in the Constitution would be inadmissible from the outset if their grounds did not show that the European evolution of law, including the rulings of the ECJ, had resulted in a decline below the required standard of fundamental rights after Wünsche (‘Solange II’). Therefore, the FCC ruled, the grounds of the submission by a court or of a constitutional complaint had to state in detail that the protection of fundamental rights required unconditionally in the respective case was not generally ensured. This required a comparison of the protection of fundamental rights on the national and on the European level similar to the one made by the FCC in Solange II. Moreover, Constitution Art. 23(1) confirmed this ruling.263 According to the FCC, it was not necessary for protection to be afforded in the different areas of fundamental rights afforded by European law and ECJ judgments, which were based on European law, to be identical to the protection afforded under German constitutional law and practice. The constitutional requirements were satisfied in accordance with preconditions mentioned in Solange II if the judgments of the ECJ generally ensured effective protection of fundamental rights as against the exclusive powers of the EU which were to be regarded as substantially similar to the protection of fundamental rights required unconditionally by the Constitution, and in so far as they generally safeguarded the essential content of those rights.264

260 Case C-466/93 Atlanta Fruchthandelsgesellschaft (II) v. Bundesamt für Ernährung und Forstwirtschaft [1995] ECR I-3799. 261 OJ 1993 L47/1. A detailed analysis of the complexities of the litigation is beyond the present part of this thesis: suffice it to say, the banana regime set up by Reg. 404/93/EC while seeking to create an open market for the product in the EU had the consequence of radically altering the relatively restriction-free position previously enjoyed by German importers to such an extent that they faced severe financial handicap or bankruptcy. For a full and balanced discussion of this issue, see Everling (1996), at 403–409. 262 BVerfGE 102, 147, at 161–163; (2000) 21 HRLJ 251, at 254. 263 Ibid., at 163–164; ibid., at 254. 264 The reasoning in Bananas II was affirmed in a 2001 case, Rinke, 1 BvR 1036/99, 9 Januar 2001: (2001) 54 NJW 1267. Hoffmeister contended that these judgments of the FCC should have ended the debate on Maastricht and in fact marked the FCC’s willingness to accept the European legal architecture, which has entrusted the guardianship of the common legal order to the ECJ. However, as will be

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Limbach noted265 that while the ECJ had the principal responsibility for ensuring the protection of fundamental rights in the EU, the FCC would “only reassert its jurisdiction in such matters if and only if the European Court of Justice would depart from the standard of protection recognised by Solange II.”266 d. Lisbon: Democracy, Constitutional Identity and Ultra Vires Review In the Lisbon case,267 the FCC built on its prior case-law (especially the Maastricht ruling) and went further, deriving many references from the key concept of democracy.268 It sought to develop the operation of the principle of democracy as the pre-eminent structural principle of the Constitution and suborn European integration (under Art. 23) to it; to define in more detail the essential core of sovereignty; and to extend its review jurisdiction in the face of the implications of deepening integration. (i) Democracy First, in respect of the principle of democracy, or more particularly the fact that European integration was subject to democratic legitimation in the classic form of electoral democracy through the self-determination of citizens under the condition of equality, the FCC again based its assessment upon violation of Constitution Art. 38(1), a right equivalent to a fundamental right,269 which—in addition to the direct, free, equal and secret election of the Bundestag—guaranteed citizens the right to participate in the law-making function of state authority and to influence its exercise.270 The free and equal right to vote was the basis of democratic rule271 and, according to the FCC, it was even an expression of human

seen in the next few sections, this hope has proven to be illusory: F. Hoffmeister, “German Bundesverfassungsgericht: Alcan, Decision of 17 February 2000; Constitutional review of EC Regulations on bananas, Decision of 7 June 2000” (2001) 38 CML Rev. 791, at 803–804. For a more recent affirmation of this position, see Single Payment Intervention Act, 14 Oktober 2008, 1 BvF 4/05: BVerfGE 122, 1, at 20; [2010] 2 CMLR 37, 986, at 1004–1005. 265 Limbach (2000), at 336. 266 According to Schwarze, if it were assumed that there was no intention on the ECJ’s part to lower the general standard of rights’ protection in the future, the Bananas II judgment “has established such considerable obstacles to additional judicial review of Community acts by means of national constitutional law as will be hardly ever be overcome.” Thus, although the FCC claimed that only a “misunderstanding” (BVerfGE 102, 147, at 164–165; (2000) 21 HRLJ 251, at 254–255) of its Maastricht ruling could have led the lower court to the assumption that the FCC would actually exercise its jurisdiction, Bananas II really deviated from the more demanding and critical Maastricht case-law and returned to Solange II: Schwarze (2000), at 414–415. 267 Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267; [2010] 3 CMLR 13, 276. 268 Tomuschat (2010), at 274. 269 BVerfGE 123, 267, at 329–330 and 340; [2010] 3 CMLR 13, 276, at 323 and 329. 270 Ibid., at 331–332; ibid., at 324. 271 Ibid., at 340–343; ibid., at 329–331.

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dignity:272 such equal right to vote was an unalterable principle of domestic constitutional law because the democratic principle273 and human dignity274 were both specifically protected275 by Constitution Art. 79(3), the ‘eternity clause.’276 Moreover,277 “[t]he principle of democracy is not amenable to weighing with other legal interests; it is inviolable” and was a concept that was limited to a State with a people and its territory278 but, simultaneously, the elaboration of the democratic principle was open to the integration of Germany into an international and European peaceful order.279 The constitutional mandate to realise a united Europe flowed from the Preamble280 to the Constitution as well as Constitution Art. 23(1),281 with the FCC referring to the openness towards European law (‘Grundsatz der Europarechtsfreundlichkeit’).282 In Maastricht,283 in order to demonstrate the admissibility of a constitutional complaint under Constitution Art. 38, it was necessary to claim that the Bundestag had lost functions and powers to such an extent that it had, in fact, ceased to be a real ‘parliament.’ In Lisbon, however, it would be enough284 to submit (in a sufficiently determined manner) that the democratic possibilities of the Bundestag of shaping social policy would be restricted by the competences of the EU pursuant to the Lisbon Treaty to such an extent that the Bundestag would no longer be able to fulfil the minimum requirements of the principle of the social state (Sozialstaat)—another fundamental constitutional principle and part of the

272 Ibid., at 341; ibid., at 330. 273 Constitution Art. 20(1) and (2). 274 Constitution Art. 1(1). 275 BVerfGE 123, 267, at 341; [2010] 3 CMLR 13, 276, at 330. 276 See above at Chapter Three, points B.1. and C.1. 277 BVerfGE 123, 267, at 343; [2010] 3 CMLR 13, 276, at 331. 278 Ibid., at 381 and 402–403; ibid., at 353 and 365. 279 Ibid., at 344; ibid., at 332. 280 The Preamble to the Constitution states, in part: “Inspired by the determination to promote world peace as an equal partner in a united Europe, the German people, in the exercise of their constituent power, have adopted this Basic Law.” 281 BVerfGE 123, 267, at 346–347; [2010] 3 CMLR 13, 276, at 333. 282 Ibid., at 346–347; ibid., at 333. Yet such openness to European integration generally is circumscribed by the limits imposed by Germany’s inalienable “constitutional identity,” outlined in Constitution Art. 79(3) (“unverfügbare Verfassungsidentität”): Ibid., at 344; ibid., at 332. Consequently, the Constitution does not permit bodies – acting on behalf of Germany – to abandon the right to self-determination of the German people in the form of Germany’s sovereignty under international by joining a federal State: this last step is exclusively reserved for the directly declared will of the people: Ibid., at 347–348; ibid., at 334. Lisbon thus contains (in contrast to Maastricht) the express refusal to create a European federal State: Ch. Wohlfahrt, “The Lisbon Case: A Critical Summary” (2009) 10 Ger LJ 1277, at 1279; F. Schorkopf, “The European Union as An Association of Sovereign States: Karlsruhe’s Ruling on the Treaty of Lisbon” (2009) 10 Ger LJ 1219, at 1237–1238; and D. Halberstam & C. Möller, “The German Constitutional Court says ‘Ja zu Deutschland!’” (2009) 10 Ger LJ 1241, at 1251. 283 See above at Chapter Three, point E.2.b. 284 BVerfGE 123, 267, at 332–333; [2010] 3 CMLR 13, 276, at 325.

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essential core of German sovereignty or constitutional identity—that resulted from Constitution Art. 23(1), sentence 3 when read with Art. 79(3). The FCC also went far in Lisbon to limit the role of the European Parliament (‘EP’) within the system of democratic legitimation. In Maastricht,285 the FCC had appeared to appreciate the EP’s contribution to the democratic legitimation of the Union’s authority and had argued for a gradual increase in its role as the Member States grew together. In Lisbon, by contrast, the FCC was much more critical concluding286 that there was a “deficit of European public authority … [that] cannot be compensated by other provisions of the Treaty of Lisbon.” The EP only complied with democratic principles because it was part of an institutional system that was not analogous to a State287—i.e., the reason the EP was compatible with national constitutions was because it enjoyed only a relatively weak and complementary (or subsidiary) role in the EU.288 Lastly, through interpretation of Constitution Art. 23(1), the FCC created a new term, Integrationsverantwortung (‘responsibility for integration’),289 with respect to the role of domestic organs: it was in effect a means to extend German parliamentary interference into federal government action in TEU/TFEU matters. In this way, the FCC extended parliamentary control or review, e.g., into the operation of the bridging and passerelle clauses of the Lisbon Treaty.290 It was in fact the role of the Bundestag which ultimately led to the FCC declaring the relevant statute—that provided for parliamentary participation, especially respecting the initiation of amendments pursuant to such clauses—to be unconstitutional as it did not provide a sufficient level of parliamentary involvement.

285 Maastricht, 12 Oktober 1993: BVerfGE 89, 155, at 184–186; [1994] 1 CMLR 57, at 86–88. 286 BVerfGE 123, 267, at 377; [2010] 3 CMLR 13, 276, at 351. 287 Ibid., at 371; ibid., at 347. 288 Ibid., at 364; ibid., at 343. 289 M. Nettesheim, “Die Integrationsverantwortung – Vorgaben des BVerfG und gesetzgeberische Umsetzung” (2010) 63 NJW 177–183. 290 Ibid., at 391–392; ibid., at 359. The Lisbon Treaty allows for the changing of voting procedures without amending the EU Treaties. Under this so-called ‘passerelle clause,’ the European Council can, after receiving the consent of the European Parliament, vote unanimously to allow: (a) the Council of Ministers to act on the basis of qualified majority in areas where they previously had to act on the basis of unanimity (this is not available for decisions with defence or military implications); or (b) for legislation to be adopted on the basis of the ordinary legislative procedure (i.e., the Council and EP make law as co-equal partners) where it previously was to be adopted on the basis of a special legislative procedure. A decision of the European Council to use either of these provisions can only come into effect if, six months after all national parliaments have been given notice of the decision, none object to it: see Art. 48(7) TEU (the general bridge clause) and Art. 31(3) TEU (the CFSP bridge clause for the Council); and Art. 81(3) TFEU (family law); Art. 153(2) TFEU (social rights); Art. 192(2) TFEU (certain environmental protection provisions); Art. 312(2) TFEU (multi-annual financial framework); and Art. 333(2) TFEU (enhanced co-operation).

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(ii) Essential Core and Democracy In respect of the essential core of sovereignty, the FCC justified the contents on the basis of the democratic principle and determined that integration on the basis of a union of sovereign States could only be realised where the Member States retained sufficient space for the political formation of the economic, cultural and social circumstances of life.291 In particular this applied to areas which shaped the citizens’ circumstances of life, especially the private space of their own responsibility and of political and social security, which was protected by fundamental rights, and to political decisions that particularly depended on previous understanding as regards culture, history and language and which unfolded in discourses in the space of a political public that was organised by party politics and Parliament. The FCC characterised these elements as acting as a brake on continued integration, outlining them in a non-exhaustive list:292 Essential areas of democratic formative action comprise, inter alia, citizenship, the civil and the military monopoly on the use of force, revenue and expenditure including external financing and all elements of encroachment that are decisive for the realisation of fundamental rights, above all as regards intensive encroachments on fundamental rights such as the deprivation of liberty in the administration of criminal law or the placement in an institution. These important areas also include cultural issues such as the disposition of language, the shaping of circumstances concerning the family and education, the ordering of the freedom of opinion, of the press and of association and the dealing with the profession of faith or ideology.

Linking this core to the democratic principle (which now appears to be, at least, the primus inter pares of constitutional structural principles), the FCC293 noted that the public perception of factual issues and of political leaders remained connected (to a great extent) to patterns of identification which were related to the nation state, language, history and culture. The principle of democracy as well as the principle of subsidiarity294 therefore required the restriction of the transfer and exercise of sovereign powers to the EU in a predictable manner, especially in central political areas of the space of personal development and the shaping of the circumstances of life by social policy. The FCC then continued295 to list those

291 For a general discussion on this point, see D. Murswiek, “Art. 38 GG als Grundlage eines Recht auf Achtung des unabänderlichen Verfassungskern” (2010) 65 JZ 702–708. 292 BVerfGE 123, 267, at 357–358; [2010] 3 CMLR 13, 276, at 340. 293 Ibid., at 359; ibid., at 340. 294 The principle of subsidiarity that was also structurally demanded by Constitution Art. 23(1), first sentence which reads: “With a view to establishing a united Europe, the Federal Republic of Germany shall participate in the development of the European Union that is committed to democratic, social, and federal principles, to the rule of law, and to the principle of subsidiarity, and that guarantees a level of protection of basic rights essentially comparable to that afforded by this Basic Law.” [Emphasis supplied.] 295 BVerfGE 123, 267, at 359; [2010] 3 CMLR 13, 276, at 341.

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matters which have “always been deemed especially sensitive for the ability of a constitutional state to democratically shape itself” before a more detailed discussion296 of their actual content and operation. (iii) New Review Powers: Protecting Boundaries of Conferred Powers and Constitutional Identity Lastly, concerning its own jurisdiction in the face of integration, the FCC determined the contours of its power to intervene by identifying the fact that the nontransferable identity of the Constitution (under Art. 79(3))—which was not amenable to integration in this respect—corresponded to the obligation under European law to respect the constituent power of the Member States as the masters of the Treaties.297 Within the boundaries of its competences, the FCC was to review, if necessary, whether or not these principles had been adhered to. An amendment of the law laid down in the Treaties298 could be brought about— through the Lisbon Treaty changes299—without a ratification procedure alone or to a significant extent by the EU institutions (albeit under the requirement of unanimity). In such matters, the FCC observed300 a special responsibility was laid down on the German legislature301 (apart from the federal government) to ensure German participation in such amendments complied with the requirement under Constitution Art. 23(1) (‘Integrationsverantwortung,’ responsibility for integration) and could, if necessary, be asserted before the FCC itself. While considering that the ability of the ECJ to maintain the acquis302 and to interpret it effectively were to be tolerated as part of the Integrationsverantwor tung,303 nevertheless under the Constitution trust in the constructive force of integration was not unlimited.304 Thus the FCC warned that, if primary European law was amended or was interpreted in an extending sense by EU institutions (e.g., 296 Ibid., at 359–363; ibid., at 341–343. The list comprised decisions on: (1) substantive and formal criminal law; (2) the disposition of the police monopoly on the use of force internally and of the military monopoly on the use of force externally; (3) the fundamental fiscal decisions on public revenue and public expenditure, with the latter being particularly motivated, inter alia, by socialpolicy considerations; (4) the shaping of circumstances of life in a social state; and (5) matters of particular importance culturally, e.g., family law, the school and education system and religious communities. 297 Repeating its wording in Maastricht, 12 Oktober 1993: BVerfGE 89, 155, at 190; [1994] 1 CMLR 57, at 91. 298 Under the Lisbon Treaty, these would be the TEU and TFEU. 299 Under the so-called passerelle clauses: see above at footnote 289. 300 BVerfGE 123, 267, at 351; [2010] 3 CMLR 13, 276, at 336. 301 Elsewhere in the judgment, the FCC indicates how the legislature is to participate in ensuring the principle of democratic legitimation was to be exercised in relation to the new law-making procedures: Halberstam & Möllers (2009), at 1243–1244. 302 A.F. Tatham, Enlargement of the European Union, Kluwer Law International, Alphen aan den Rijn (2009), chap. 12, 327, at 328. 303 BVerfGE 123, 267, at 351–352; [2010] 3 CMLR 13, 276, at 336. 304 Ibid., at 352; and ibid., at 336–337.

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the ECJ), it would conflict with the principle of conferral and Member States’ own constitutional responsibility for integration:305 If legislative or administrative competences are only transferred in an undetermined manner or with the intention of their being further developed dynamically, or if the institutions are allowed to newly establish competences, to round them off in an extending manner or to factually extend them, they risk transgressing the predetermined integration programme and acting beyond the powers which they have been granted [i.e., ultra vires].

The FCC thus opened up the way of the ultra vires review, which applied where European institutions infringed the boundaries of their competences. In those cases where protection could not be obtained at the Union level, the FCC reviewed whether European legal instruments—adhering to the principle of subsidiarity306 kept within the boundaries of the sovereign powers accorded to them by way of conferral.307 In addition, the FCC retained308 a very moderate and exceptional jurisdiction to ensure that integration would occur according to the principle of conferral without violating German constitutional identity which was not amenable to integration. Within its jurisdiction, the FCC was able to assert the responsibility for integration if obvious transgressions of the boundaries occurred when the Union claimed competences and to preserve the inviolable core content of constitutional identity by means of an identity review.309 Thus, the FCC could review whether the inviolable core content of the constitutional identity of the Constitution—pursuant to Constitution Art. 23(1), sentence 3, read in conjunction with Art. 79(3)310—was respected:311 The exercise of this competence of review, which is rooted in constitutional law, follows the principle of the [Constitution’s] openness towards European law (‘Europarechtsfreundlichkeit’), and it therefore also does not contradict the principle of loyal co-operation (TEU Art. 4(3)); with progressing integration, the fundamental political and constitutional structures of sovereign Member States, which are

305 Ibid., at 352; and ibid., at 336–337. 306 Art. 5(1) TEU, sentence 2, and Art. 5(3) TEU together with TEU and TFEU, Protocol (No. 2) on the Application of the Principles of Subsidiarity and Proportionality. 307 See Eurocontrol I, 23 Juni 1981, 2 BvR 1107, 1124/77 und 195/79: BVerfGE 58, 1, at 30–31; Kloppenburg, 8 April 1987, 2 BvR 687/85: BVerfGE 75, 223, at 235 and 242; [1988] 3 CMLR 1, at 13 and 18; Maastricht, 12 Oktober 1993: BVerfGE 89, 155, at 188; [1994] 1 CMLR 57, at 89. See the latter case concerning legal instruments transgressing the limits (“ausbrechende Rechtsakte”). 308 BVerfGE 123, 267, at 352–353; [2010] 3 CMLR 13, 276, at 336–337. 309 See Kloppenburg, 8 April 1987, 2 BvR 687/85: BVerfGE 75, 223, at 235 and 242; [1988] 3 CMLR 1, at 13 and 18; Maastricht, 12 Oktober 1993: BVerfGE 89, 155, at 188; [1994] 1 CMLR 57, at 89; European Arrest Warrant, 18 Juli 2005, 2 BvR 2236/04: BVerfGE 113, 273, at 296; [2006] 1 CMLR 378, at 401. 310 See European Arrest Warrant, 18 Juli 2005, 2 BvR 2236/04: BVerfGE 113, 273, at 296; [2006] 1 CMLR 378, at 401. 311 BVerfGE 123, 267, at 353–354; [2010] 3 CMLR 13, 276, at 337–338.

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chapter three recognised by TEU Art. 4(2), sentence 1, cannot be safeguarded in any other way. In this respect, the guarantee of national constitutional identity under constitutional and the one under Union law go hand in hand in the European legal area.

The identity review made it possible for the FCC to examine whether (due to the action of European institutions) the principles under Constitution Arts. 1 and 20, which were declared inviolable in Art. 79(3), had been violated. Importantly, either type of review312 could result in European law being declared inapplicable in Germany. Moreover, it was not necessary in the present case to decide how these review proceedings could be invoked—either within the current proceedings provided for in Constitution Arts. 93 and 100 or, which was also conceivable, new types of proceeding, especially tailored to safeguard the obligation of German bodies not to apply (in individual cases) European legal instruments that transgressed competences or that violated constitutional identity. The Lisbon ruling amounts to a notable alteration in the FCC’s Solange case-law: thus any European legal act can be scrutinised by the FCC for its conformity with the Constitution with respect to ‘obvious’ transgressions of the boundaries of competence and identity.313 e. Ultra Vires Review Applied The first litmus test for the exercise of the FCC’s ultra vires review power came in Honeywell314 which concerned the attempt of a complainant company to have the ECJ ruling in Mangold315 annulled on the grounds that it was an ultra vires act of the ECJ having transgressed its conferred competences through its expansive interpretation of EU law and principles. This interpretation by the ECJ, the complainant alleged, had infringed its contractual freedom as guaranteed under the German Constitution. If successful, this would have led to a decision of the Federal Labour Court, based on Mangold, being overturned to the benefit of the complainant vis-à-vis a former employee who had previously and successfully claimed

312 Ibid., at 354–355; and ibid., at 338. 313 Interestingly a constitutional complaint against the new accompanying statute to the Lisbon Treaty (2 BvR 2136/09) was rejected by the FCC, Second Senate, on 22 September 2009. Available at: . Accessed 10 October 2009. 314 Honeywell, 6 Juli 2010, 2 BvR 2661/06: BVerfGE 126, 286; [2011] 1 CMLR 33, 1067. For a first English-language critique of this case, see M. Mahlmann, “The Politics of Constitutional Identity and its Legal Frame – the Ultra Vires Decision of the German Federal Constitutional Court” (2010) 11 Ger LJ 1407. See also A. Proelß, “Zur verfassungsgerichtlichen Kontrolle der Kompetenzmäßigkeit von Maßnahmen der Europäischen Union: Der ‘ausbrechende Rechtsakt’ in der Praxis des BVerfG – Annmerkung zum Honeywell-Beschluss des BVerfG vom 6. Juli 2010” (2011) 45 EuR 241–262; Hanf (2010), at 532–543; and J. Corti Varela, J. Porras Belarra & C. Román Vaca, “El control ultra vires del Tribunal constitucional alemán. Comentario de la decisión de 06.07.2010 (2 BvR 2661/06, Honeywell)” (2011) 40 RDCE 827–852. 315 Case C-144/04 Mangold v. Helm [2005] ECR I-9981.

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before the labour courts that the complainant had discriminated against him on the grounds of age. In its decision, the FCC observed that its ultra vires review could only be exercised in a restrained manner and one of openness to European law.316 Moreover, in using its ultra vires review in respect of acts of European bodies and institutions:317 [T]he FCC must in principle adhere to the rulings of the ECJ as providing a binding interpretation of Union law. Prior to the acceptance of an ultra vires act [by the FCC] of the European bodies and institutions, the ECJ should therefore be afforded the opportunity – in the framework of Art. 267 TEU – to interpret the Treaties as well as to rule on the validity and interpretation of the acts in question. As long as the ECJ has not yet had the opportunity to clarify the EU law questions which have arisen, the FCC should not determine for Germany the inapplicability of Union law (cf. [Lisbon:] BVerfGE 123, 267, at 353).

Moreover such a review could only be considered if it were obvious that acts of the European bodies and institutions had been enacted beyond the competences conferred on them. A violation of the principle of conferral was only obvious then, the FCC stated:318 [I]f the European bodies and institutions have overstepped the limits of their competences and breached the principle of conferral in a specific offending manner (Constitution Art. 23(1)), i.e., the violation of competence is “sufficiently serious” (cf. the formulation of “sufficiently serious” as characteristic facts of the case in Union tortious liability, see C-472/00 P Commission v. Fresh Marine Co. A/S [2003] ECR I-7541, at para. 26ff). This means that the acts of the EU authority are manifestly in breach of competences and the impugned act leads to a structurally significant shift to the detriment of the Member States in the structure of competences between Member States and the European Union.

Measured against these standards, the Federal Labour Court had not ignored the scope of the complainant’s constitutional guaranteed contractual freedom. In any event, the ECJ in Mangold had not violated its competences in a sufficiently serious manner. This particularly applied to the derivation of a general principle of non-discrimination in respect of age.319 It was irrelevant whether such a principle could be derived from the constitutional traditions common to the Member States and their international agreements. For even a putative further development of the law on the part of the ECJ—that would no longer be justifiable in terms of legal method—would only constitute a sufficiently serious breach of its competences if it also had the effect of establishing competences in practice. The

316 Honeywell, 6 Juli 2010, 2 BvR 2661/06: BVerfGE 126, 286, at 303; [2011] 1 CMLR 33, 1067, at 1085. 317 Ibid., at 304; ibid., at 1085. 318 Ibid., at 304–305; ibid., at 1085–1086. 319 Ibid., at 309–313; ibid., at 1089–1091.

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derivation of a general principle of non-discrimination in respect of age would however not have introduced a new competence for the EU, nor would have an existing competence been expanded. In this sense, Anti-Discrimination Directive 2000/78/EC320 had already made non-discrimination in respect of age binding for legal relationships based on employment contracts, and hence had opened it up for interpretation by the ECJ. Mahlmann321 noted that not just any misapplication of the law could possibly suffice because otherwise the FCC would become a Cour de cassation for all acts of EU organs that are (as any act of a public authority) open to the claim of misapplying the law. He saw that no other standard than that formulated by the FCC on ultra vires was sustainable. In this respect, of particular importance was the second element of the FCC’s test demanding the structural significance of the possible breach of competences that was a workable tool to identify acts that could be regarded with good reasons as ultra vires. He indicated322 that while regarding the ECJ as possessing a ‘right to tolerance of error,’ the FCC had also protected itself against the consequences of its own possible errors by demanding a specifically qualified degree of breach of the order of competences. Sufficient certainty of such violations was thus only possible if the breach had to be qualified and manifest and needed a systemic impact. The FCC thereby shielded itself against the danger of confusing perhaps justified criticism of a decision with the sufficiently secure establishment of an ultra vires act. The criterion of structural importance of the ultra vires act also served another function, said Mahlmann,323 viz., it gave legitimacy to the effects of such control exercised by the FCC: declaring a judgment of the ECJ ultra vires and thus not applicable in Germany would mean a major disruption of the EU legal order with clear consequences for the whole integration project. Evidently only a violation of the structure of competences of the EU and the Member States would carry enough weight to justify the consequences of the ultra vires control that, in itself, represented a measure of last resort. f. Democracy and the Euro The onset of the financial crisis in 2008 posed serious challenges for the continued health and viability of the euro. Measures taken in response by the EU and among Member States have been challenged before the FCC which has moved cautiously to approve the actions of the German government, both inside and outside the EU

320 Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation: OJ 2000 L303/16. 321 Mahlmann (2010), at 1414. 322 Ibid. 323 Ibid., at 1414–1415.

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framework, while simultaneously enhancing the need for democratic accountability for such actions through the Bundestag. This section will focus on the FCC which, building on Maastricht and Lisbon, has developed the use of the principle of democracy—as part of the inalienable constitutional identity of Germany—by which individuals have been able to challenge EU economic crisis measures allegedly violating the budgetary autonomy of the Bundestag. (i) Greek Bail-Out and Euro Rescue Package Case In this case,324 financial measures—passed by the EU in 2010 to save the euro from the sovereign debt crisis in a number of Member States—were the subject of three consolidated constitutional complaints. The complaints concerned, first, the Greek bail-out package negotiated between the EU Commission (with the participation of the European Central Bank (‘ECB’)), the International Monetary Fund (‘IMF’) and Greece. Under the package, of the €110 billion to be made available, euro group states (‘euro states’) were to contribute up to €80 billion of bilateral loans with the German share set at 27.92%. The relevant statute,325 by which Germany assumed its responsibilities under the package, authorised the Federal Ministry of Finance to make guarantees for loans to Greece of up to €22.4 billion. Secondly the complaints also concerned the euro rescue package that was produced by the European Council and the Economic and Financial Affairs (‘ECOFIN’) Council when there was a severe deterioration in the borrowing conditions of several euro states. It comprises: (i) a European Financial Stabilisation Mechanism (‘EFSM’), introduced by an EU Regulation,326 that accounted for €60 billion from the EU budget; and (ii) a temporary, three-year fixed period, special purpose vehicle (in the form of a limited liability company in Luxembourg)—the European Financial Stability Facility (‘EFSF’)—based on an intergovernmental agreement between the euro states and guaranteed by them to enable the EFSF to borrow up to a maximum €440 billion on the capital markets to be provided as loans to 324 Greek Bail-Out and Euro Rescue Package, 7 September 2011, 2 BvR 987/10, 1485/10 and 1099/10: BVerfGE 129, 124. See, e.g., L. Dechâtre, “La décision de Karlsruhe sur le Mécanisme européen de stabilité financière: Une validation sous condition et une mise en garde sibylline pour l’avenir” (2011) 47 CDE 302–342; T. Giegerich, “The Federal Constitutional Court’s Deference to and Boost for Parliament in Euro Crisis Management” (2011) 54 GYIL 639–657; L. Knopp, “Griechenland-Nothilfe auf dem verfassungsrechtlichen Prüfstand” (2010) 63 NJW 1777–1782; H. Kube, “Nationale Budgethoheit und Europäische Integration” (2012) 137 AöR 205–222; M. Nettesheim, “‘Euro-Rettung’ und Grundgesetz. Verfassungsgerichtliche Vorgaben für den Umbau der Währungsunion” (2011) 46 EuR 765–783; and M. Ruffert, “Die europäische Schuldenkrise vor dem Bundesverfassungsgericht – Anmerkung zum Urteil vom 7. September 2011” (2011) 46 EuR 842–855. 325 Act for the Assumption of Guarantees for the Maintenance of the Solvency of the Hellenic Republic Necessary for the Financial Stability of the Monetary Union: BGBl. 2010, I, 537. 326 Regulation 407/2010/EU: OJ 2010 L118/1.

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over-indebted euro states; the German contribution represents almost €150 billion. Both measures were incorporated into a statute327 that defined the preconditions for rendering financial assistance at national level and authorised the Federal Ministry to assume guarantees up to the amount of the German quota. In 2011, the euro states agreed, inter alia, to raise the EFSF’s maximum loan capacity with Germany’s guarantee facilities raised to approximately €211 billion: the agreements were similarly transposed by statute.328 In early 2012, Greece requested emergency loans from the EFSF which was agreed to and which, as a result, required amendment of the relevant statute by Germany. In the Greek Bail-Out and Euro Rescue Package case,329 the FCC ruled (by a majority) the three complaints admissible but only to the extent that the EU financial measures had infringed the Bundestag’s budgetary autonomy and then only where the complainants might arguably claim that their fundamental right to vote would be deprived of effect (voided) by the challenged rules: this would occur were the Bundestag’s powers to be emptied to such a degree that the political will of voters could no longer be realised.330 In the present case, the complainants had made an arguable claim that the challenged measures represented the first steps that could putatively lead to a historically unprecedented constantly increasing liability—automatically extended to other euro states—which would eventually erode the Bundestag’s budgetary autonomy.331 In its decision on the substance, the FCC rejected the complaints and found both statutes constitutional while simultaneously strengthening the Bundestag’s position for the future. It accordingly ruled that there would be a violation of the right to vote under Art. 38 (and therefore of German constitutional identity) if the Bundestag were to relinquish its parliamentary budgetary responsibility to the effect that it or a future Bundestag could no longer exercise the right to decided on the budget on its responsibility. Reiterating its previous arguments,332 the FCC333 observed that the decision on public revenue and public expenditure was a fundamental part of the ability of the Rechtsstaat to shape itself democratically, in part by the fact of exercising the right to decide on the budget that served as an instrument for comprehensive parliamentary control of the government.

327 Act on the Assumption of Guarantees in the Framework of a European Stabilisation Mechanism: BGBl. 2010, I, 627. 328 Act Amending the European Stabilisation Mechanism: BGBl. 2010, I, 1992. 329 Greek Bail-Out and Euro Rescue Package, 7 September 2011, 2 BvR 987/10, 1485/10 and 1099/10: BVerfGE 129, 124. 330 Ibid., at 170. 331 Ibid., at 167 et seq. 332 Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267, at 359 and 361–362; [2010] 3 CMLR 13, 276, at 341–342. 333 BVerfGE 129, 124, at 177–178.

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In complying with the principle of democracy,334 the Bundestag was the institution that retained the power to make autonomous decisions on revenue and expenditure. If such decisions were to be made without the requirement of the Bundestag’s consent or if supranational legal obligations were created without its consent, then the Bundestag would find itself in the position of merely rubberstamping another body’s decision and could itself no longer exercise overall budgetary responsibility. The principle of democracy thus prevented the Bundestag335 from transferring its budgetary authority to other actors by means of imprecise budgetary authorisations. In particular it could not surrender this authority to any financial mechanisms that might lead to incalculable burdens on the budget without its prior obligatory consent. Violation of the principle of democracy and the right to elect the Bundestag would occur if the determination of the type and amount of public levies imposed on the citizen “were supranationalised to a considerable extent and thus the Bundestag would be deprived of its right of disposal.”336 The Bundestag’s budgetary autonomy,337 as part of the core of constitutional identity, meant that it had to remain permanently ‘the master of its decisions’ on revenue and expenditure. Such decisions were to be taken independently of the determinations of either EU bodies or other EU Member States: it therefore followed from the democratic basis of budgetary autonomy that the Bundestag was prevented from agreeing to any automatic financial transfers or guarantees not subject to strict requirements that had been agreed in intergovernmental or supranational form and which, once the mechanism was set in motion, could lead to unlimited obligations beyond the Bundestag’s control. Instead,338 “[t]he Bundestag must specifically approve every large-scale measure of aid on the Federal Government taken in a spirit of solidarity and involving public expenditure on the international or European Union level.” Consequently when Germany participated in a system of financial safeguards in which the magnitude of the default of a Member State could be of structural significance for the Bundestag’s right to decide the budget, sufficient parliamentary influence had to be guaranteed in respect of the way in which the funds made available would be dealt with. Thus the Bundestag’s ‘responsibility for integration’ with regard to the transfer of legislative powers to the EU,339 was extended in the present case to cover budgetary measures of equivalent effect. 334 Ibid., at 178–179. 335 Ibid., at 179. 336 The FCC cited in support Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267, at 361–362; [2010] 3 CMLR 13, 276, at 342. 337 Greek Bail-Out and Euro Rescue Package, 7 September 2011, 2 BvR 987/10, 1485/10 and 1099/10: BVerfGE 129, 124, at 179–180. 338 Ibid., at 180–181. 339 Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267, at 356ff; [2010] 3 CMLR 13, 276, at 339ff.

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The FCC recognised that it could not take over the role of the Bundestag and its particular expertise in deciding whether or not a prohibited surrender of budgetary autonomy had occurred. With regard to the extent of assumption of payment obligations or of commitments to accept liability (‘guarantee events’), the FCC had to restrict its review to manifest transgressions of ultimate boundaries.340 The legislature thus had a margin of appreciation with respect to the probability of having to make payments in a guarantee event which the FCC had to respect:341 this could be similarly compared to the assessment of the future sustainability of the federal budget and of German economic performance. An upper limit, following directly from the principle of democracy, could only be transgressed then if Germany were called upon to fulfil guarantee events in such a way that budgetary autonomy—at least for an appreciable time—was not merely restricted but effectively failed.342 In taking this legislative priority of appreciation into account in the present case, neither statute had depleted the Bundestag of its right to adopt the budget and control its implementation by the government: therefore the essential content of the principle of democracy had not been infringed. (ii) ESM Treaty and Fiscal Compact Case The EFSF was only a temporary emergency instrument lasting until 2013 and is to be replaced by a permanent crisis mechanism in the form of an international financial institution, the European Stability Mechanism (‘ESM’) established on the basis of an international treaty between the euro states (‘ESM Treaty’) where stability support is subject to strict conditionality and an amendment to Art. 136 TFEU expressly authorising them to establish such a mechanism.343 Both these measures were finalised in 2011 and, in the following year, a further measure to end the sovereign debt crisis was finalised when the EU Member States (save the Czech Republic and the UK) signed the intergovernmental Treaty on Stability, Co-ordination and Governance in the Economic and Monetary Union (‘TSCG’ or ‘Fiscal Compact’). This requires signatories to enact laws requiring national budgets to be balanced or in surplus according to the Fiscal Compact’s terms. The German parliament passed four statutes to give domestic effect to the ESM and Fiscal Compact. The Act of Assent to the ESM Treaty344 and the Act for 340 Greek Bail-Out and Euro Rescue Package, 7 September 2011, 2 BvR 987/10, 1485/10 and 1099/10: BVerfGE 129, 124, at 182. 341 Ibid., at 182–183. 342 Ibid., at 183. 343 European Council Decision 2011/199/EU: OJ 2011 L91/1, Art. 1 provides for the amendment to Art. 136 TFEU in these terms: “(3) The Member States whose currency is the euro may establish a stability mechanism to be activated if indispensable to safeguard the stability of the euro area as a whole. The granting of any required financial assistance under the mechanism will be made subject to strict conditionality.” 344 Draft bill of an Act on the Treaty of 2 February 2012 establishing the European Stability Mechanism: BT-Drucksache 17/9045; 17/10126; and 17/10172.

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Financial Participation in the ESM345 together with the Act to Amend Art. 136 TFEU346 and the Act on Assent to the Fiscal Compact347 were all adopted by the Bundestag and Bundesrat on 29 June 2012. A number of applicants immediately challenged their constitutionality and further sought temporary injunctions to prohibit the Federal President from signing them into law pending the FCC’s determination in the main proceedings. In ESM Treaty and Fiscal Compact,348 the FCC refused the temporary injunctive relief provided, inter alia, that the limited liability set out in the ESM Treaty349 restricted the amount of all payment obligations for Germany to its share of the overall authorised capital of the ESM (approximately €190,025 million) and that no provision of that Treaty might be interpreted in a way that would establish higher payment obligations for Germany without prior agreement of the German representative. The FCC took the unusual step in the temporary injunction proceedings to perform a summary review of the challenged statutes on the grounds that, with German ratification of the treaties, it would enter into commitments under international law the cancellation of which would not be easily possible if breaches of the Constitution were to be found in the main proceedings. Importantly the FCC indicated that were its summary review to establish a high probability that there was indeed an alleged breach of the principle of democracy under Constitution Art. 79(3), as part of national constitutional identity, then a serious detriment to a public good would ensue if the temporary injunctive relief were not to be granted. The FCC in ESM Treaty and Fiscal Compact reconfirmed its previous case-law from Maastricht, Lisbon but especially Greek Bail-Out and Euro Rescue Package on the need to protect the Bundestag’s budgetary autonomy: in fact,350 the FCC made extensive reference to its reasoning in the latter case in order to support its arguments on the ESM Treaty and Fiscal Compact. But it went further than the previous cases and observed351 that, since the entry into the third stage of Economic 345 Draft bill of an Act for the Financial Participation in the Euro Stability Mechanism, as amended by the Recommendation for a Resolution of the parliamentary budget committee: BT-Drucksache 17/9048; and 17/10126. 346 Draft bill of an Act on the European Council Decision of 25 March 2011 to Amend Article 136 of the Treaty on the Functioning of the European Union with regard to a Stability Mechanism for Member States whose Currency is the Euro: BT-Drucksache 17/9047. 347 Draft bill of an Act on the Treaty of 2 March 2012 on Stability, Co-ordination and Governance in the Economic and Monetary Union, as amended to include the proposed amendments approved by the parliamentary budget committee on 27 June 2012: BT-Drucksache 17/9046; 17/10125; and 17/10171. 348 ESM Treaty and Fiscal Compact, 12 September 2012, 2 BvR 1390/12, 1421/12, 1438/12, 1439/12, 1440/12 and 2 BvE 6/12: BVerfGE, nyr. 349 ESM Treaty, Art. 8(5), first sentence. The text of the Treaty is available at: . Accessed 20 September 2012. 350 ESM Treaty and Fiscal Compact, 12 September 2012, 2 BvR 1390/12, 1421/12, 1438/12, 1439/12, 1440/12 and 2 BvE 6/12: BVerfGE, nyr, at marginal notes 202–206. 351 Ibid., at 202.

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and Monetary Union (‘EMU’), the Bundestag’s overall budgetary responsibility had been safeguarded by the provisions of the TEU and TFEU which did not conflict with national budgetary autonomy—as an essential competence (that could not be surrendered) of Member State parliaments that enjoyed direct democratic legitimation—but rather presupposed it. The current EMU had been designed352 as a community of currency stability, as one of the essential permanent constitutional prerequisites for Germany’s participation in it353 as were354 the independence of the European Central Bank (‘ECB’) and the primary objective of price stability.355 Additional central provisions of EMU also safeguarded constitutional requirements under EU law,356 especially the prohibition of accepting liability (bailout clause), the stability criteria for sound business management and the prohibition of monetary financing by the ECB which final point was an essential component in protecting democracy under Constitution Art. 20(1) and (2) when read with Art. 79(3).357 Nevertheless,358 the present EMU arrangements were not immutable and Constitution Art. 79(3) did not, ab initio, prevent a democratically-legitimised change in the concrete structure of the stability requirements under EU law. Thus Art. 79(3) did not guarantee the unaltered continuing existence of the current law in force vis-à-vis EMU but rather those structures and procedures that kept the democratic process open and therefore protected parliament’s overall budgetary responsibility. This openness to change allowed for alterations to the EMU motivated by new political decisions, as previously mentioned by the FCC, e.g., in Maastricht—although it remained for the legislature to resolve how possible weaknesses of the EMU were to be counteracted by amending EU law. Taken together, these cases confirm the FCC’s use of the constitutional principle of democracy to enhance parliamentary control over government (economic and foreign) policy as a means to control the making and use of potentially openended financial commitments to the other states in the euro zone. The novel and continuing use of the right to vote under Constitution Art. 38 (when read with Art. 20(1) and (2) and Art. 79(3)), the infringement of which ultimately gives the standing to individuals to bring constitutional complaints for its breach, has accordingly extended stakeholder participation and institutional accountability while 352 Ibid., at 203. 353 See, e.g., Greek Bail-Out and Euro Rescue Package, 7 September 2011, 2 BvR 987/10, 1485/10 and 1099/10: BVerfGE 129, 124, at 181–182. 354 Under Constitution Art. 88, second sentence and Art. 14(1). 355 Arts. 127(1) and 130 TFEU. 356 ESM Treaty and Fiscal Compact, 12 September 2012, 2 BvR 1390/12, 1421/12, 1438/12, 1439/12, 1440/12 and 2 BvE 6/12: BVerfGE, nyr, at marginal note 204. 357 Arts. 123–126 and 136 TFEU; and Greek Bail-Out and Euro Rescue Package, 2 BvR 987/10, 1485/10 and 1099/10, 7 September 2011: BVerfGE 129, 124, at 181–182. 358 ESM Treaty and Fiscal Compact, 12 September 2012, 2 BvR 1390/12, 1421/12, 1438/12, 1439/12, 1440/12 and 2 BvE 6/12: BVerfGE, nyr, at marginal note 205.

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concomitantly strengthening the Bundestag’s role in German involvement in deepening European integration. 3. Review of National Transposing Law The FCC, under its jurisdiction to protect fundamental rights in the national system, has emphasised its ultimate authority in this arena.359 While it refrained from directly striking down secondary European legislation per se, the FCC nevertheless did not shy away from reviewing national legal rules that implement Directives.360 For example, in M. GmbH,361 the FCC ruled that the applicant German tobacco companies could not seek an injunction to require the Federal Government to vote in the then EEC Council of Ministers against the adoption of a common position on the draft Directive on the Labelling of Tobacco Products.362 This was because the German Government’s participation in the European legislative process with respect to the Directive did not constitute a sovereign act with a direct adverse effect on the applicants. Rather, the FCC argued, the appropriate stage to bring constitutional review proceedings was when the Directive came into force and was implemented into national law. It continued363 by observing that the Directive required Member States to implement its content into national law and gave them a considerable freedom of choice in the formulation of that legislation.

359 See Wünsche, 22 Oktober 1986: BVerfGE 73, 339; [1987] 3 CMLR 225; and Banana Market II, 7 Juni 2000, 2 BvL 1/97: BVerfGE 102, 147; (2000) 21 HRLJ 251. 360 In this sense, it is strongly arguable that such position is no different from the one expressed by the ECJ in Kadi (Joined Cases C-402/05 P and C-415/05 P Kadi v. Council and Commission [2008] ECR I-6351) to which the FCC made express reference in Lisbon (BVerfGE 123, 267, at 400–401; [2010] 3 CMLR 13, 276, at 364). In the case of Kadi, the ECJ stated ([2008] ECR I-6351, at para. 316) that “a constitutional guarantee stemming from the EC Treaty as an autonomous legal system [is] not to be prejudiced by an international agreement.” Thus, in that case, the annulment by the ECJ of a Regulation implementing a UN Security Council Resolution – on the grounds that the former was incompatible with European constitutional norms (human rights) – did not affect the primacy of such Resolution under international law. This interesting parallel with the FCC’s decision in Solange (noted in B. Kunoy & A. Dawes, “Plate tectonics in Luxembourg: The ménage à trois between EC law, International law and the European Convention on Human Rights following the UN Sanctions cases” (2009) 46 CML Rev. 73, at 102–103) has however been challenged. Gattini rather noted that the ECJ had failed to accept the positive wording of the Solange theory – as proposed by Poiares Maduro AG in his Opinion (para. 54) – that the ECJ would maintain this review jurisdiction so long as the UN did not organise “a genuine and effective mechanism of judicial control by an independent tribunal at the level of the United Nations”: A. Gattini, “Case Note: Joined Cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi, Al Barakaat International Foundation v. Council and Commission, judgment of the Grand Chamber of 3 September 2008, nyr.” (2009) 46 CML Rev. 213, at 234–235. 361 M. GmbH v. Bundesregierung, 12 Mai 1989, 2 BvQ 3/89: (1989) 24 EuR 270; [1990] 1 CMLR 570. 362 Initial draft: OJ 1988 C48/8; amended draft: OJ 1989 C62/12. Final version Dir. 89/662/EEC: OJ 1989 L359/1, as amended by Dir. 92/41/EEC: OJ 1992 L158/30. 363 (1989) 24 EuR 270, at 273; [1990] 1 CMLR 570, at 574.

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In such implementation, the national legislature was subject to the restrictions imposed by the Constitution. The question whether the applicants’ constitutional or equivalent rights were infringed in the implementation of the Directive within the scope for choice as to formulation (allowed to the legislature by the Directive) was one open to review in all respects. The FCC concluded by referring, obliquely, to the ‘relationship of co-operation’ with the ECJ. Consequently, where the Directive might infringe the basic constitutional standards of European law, the ECJ would ensure legal protection of rights. However, the FCC was not excluded from this process and so where the constitutional standards laid down as unconditional by the Constitution were not satisfied by the ECJ, recourse could be had to the FCC. The possibility of constitutional review of secondary European legislation, through this indirect route, became reality in the 2005 European Arrest Warrant case,364 where the FCC reaffirmed its jurisdiction to review domestic implementing rules of such secondary legislation against fundamental rights standards in the German Constitution. The relevant secondary European legislation was a 2002 Framework Decision of the Council of Ministers, exercising its powers under the then (pre-Lisbon) EU Treaty.365 Such Framework Decision operated at that time like a Directive passed under the then EC Treaty366 but was expressly forbidden, by the former (pre-Lisbon) Art. 34(2)(b) TEU, from enjoying direct effect. The 2002 EU Council Framework Decision on the European Arrest Warrant was implemented into the German legal system by the European Arrest Warrant Act 2004,367 itself an amendment to the domestic Act on International Judicial Assistance in Criminal Matters. The complainant in the case challenged his extradition to Spain, as ordered by the Upper Regional Court of Hamburg on the basis of the rules of the European Arrest Warrant (‘EAW’), and submitted that certain of his fundamental rights had been infringed, viz.: (a) under Constitution Art. 16(2), which bans extradition of German citizens but provides further: “The law may provide otherwise for extraditions to a Member State of the European Union or to an international court, provided that the rule of law is observed”; and (b) under Constitution Art. 19(4), which guarantees access to a court:368 “Should any person’s right be violated by public authority, he may have recourse to the courts.” 364 European Arrest Warrant, 18 Juli 2005, 2 BvR 2236/04: BVerfGE 113, 273; [2006] 1 CMLR 378. For an analysis, see C. Tomuschat, “Inconsistencies – The German Federal Constitutional Court on the European Arrest Warrant” (2006) 2 EuConst 209–226. 365 2002/584/JHA: Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States: OJ 2002 L190/1. 366 Case C-105/03 Criminal proceedings against Maria Pupino [2005] ECR I-5285, at paras. 33–36. 367 BGBl. 2004, I, 1748. 368 Although, according to the case-law of the FCC, this right varies according to the margin of discretion exercised by an authority in a particular situation: Sasbach, 8 Juli 1982, 2 BvR 1187/80: BVerfGE 61, 82, at 111; and Gerichtliche Prüfungskontrolle, 17 April 1991, 1 BvR 419/81 and 213/83: BVerfGE 84, 34, at 53.

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The FCC declared the European Arrest Warrant Act void on the grounds that (a) the Act had infringed the freedom from extradition in a disproportionate and unwarranted manner because the legislature had not exhausted the margins (afforded to it by the Framework Decision) in such a way that the implementation of the Framework Decision for incorporation into national law showed the highest possible consideration in respect of the fundamental right concerned. Constitution Art. 16(2) was to guarantee the specific link between German citizens and the German legal order, whose sovereign they were. Moreover, they were to be protected from the uncertainties of criminal procedure and conviction in a foreign legal system: the trust that a suspect put in his own legal system was of constitutional value as this was, which was guaranteed by Art. 16(2) as a fundamental right. Since the legislature was obliged to preserve to the greatest level possible the guarantee of citizenship, any infringement of the fundamental right in Art. 16(2) had to be proportionate; and (b) the Act infringed the right to a court. The new law had rendered the extradition procedure a two-stage process: first the competent Oberlandesgericht369 was to decide on admissibility; and secondly the Federal Government was to decide on whether or not to grant extradition. Because there was no possibility of a challenge—before the courts—against the executive decision that granted extradition, the right had been infringed. Accordingly, the extradition of a German citizen was not possible as long as the legislature had failed to adopt a new Act implementing Constitution Art. 16(2). The complainant’s constitutional challenge was therefore successful and, as he could not be extradited to Spain as previously requested (in relation to suspected terrorist offences), he was released. As a result of the FCC’s decision, extraditions based on the EAW had to be refused not only in respect of German citizens but also in cases which did not concern German citizens and which posed no constitutional problems. Moreover, critically, the decision took effect immediately—the absence of any temporary suspension of the ruling meant that the EAW no longer had any force in Germany with the consequent failure of the State to comply with is duty to respect (preLisbon) EU law. With this legal lacuna, Germany had to revert to the unamended provisions of its previous rules based on the 1957 European Convention on Extradition.370 The European Arrest Warrant decision has been strongly criticised,371 particularly since it based its reasoning solely within the fundamental right contained in 369 Higher Land Courts or Provincial Courts of Appeal primarily review points of law raised in appeals from the lower courts. Appellate courts also hold original jurisdiction in cases of treason and anti-constitutional activity. 370 European Convention on Extradition, CETS No. 24: opened for signature 13 December 1957, entered into force 18 April 1960. 371 See, e.g., M. Böhm, “Das Europäische Haftbefehlsgesetz und seine rechtsstaatlichen Mängel” (2005) 58 NJW 2588; U. Hufeld, “Der Europäische Haftbefehl vor dem BVerfG” (2005) 45 Juristische

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Constitution Art. 16(2) and persisted in staying there as if within an “étatist snail shell.”372 It further expended enough time on discussing whether the possibility to extradite nationals could lead to a disintegration of the legal order as envisaged by the Constitution (‘Entstaatlichung’)! The FCC’s majority decision ignored the ECJ ruling in Pupino373 and rendered its judgment solely on national constitutional grounds. While the FCC evidently had the right to apply national constitutional standards to the national law implementing the Framework Decision,374 and (perhaps positively) human rights had eventually been confirmed and invigorated with the right to judicial review, nevertheless the European Arrest Warrant judgment:375 “conveys the impression, that the protection of human rights … served only as a stalking horse for a more skeptical, a more etatist view on European integration, especially within the third pillar.”376 A change of approach was heralded in Single Payment Intervention Act377 when the FCC, in following Solange II and Banana Market II, reaffirmed that it no longer exercised its review jurisdiction over EU law where the EU and particularly ECJ case-law guaranteed the essence of the various fundamental rights under the German Constitution. This approach applied in relation not only to EU Regulations and Directives, but also in relation to provisions of domestic law that transposed a Directive into German law, to the extent that Union law did not allow any scope for discretion. Where, however, EU secondary legislation allowed a discretion or latitude left to the national legislature to elaborate upon, then the scope for such elaboration was amenable to review by the FCC.

Schulung 865; S. Mölders, “European Arrest Warrant Act is Void – The Decision of the German Federal Constitutional Court of 18 July 2005” (2005) 7 German LJ 45; and J. Vogel, “Europäischer haftbefehl und deutsches Verfassungsrecht” (2005) 60 JZ 801. 372 Hufeld (2005), at 870. 373 Case C-105/03 Criminal proceedings against Maria Pupino [2005] ECR I-5285. On Pupino’s importance, see M. Fletcher, “Extending ‘Indirect Effect’ to the Third Pillar: The Significance of Pupino” (2005) 30 EL Rev. 862. 374 A. Hinarejos Parga, “Case Note: Bundesverfassungsgericht (German Constitutional Court), Decision of 18 July 2005 (2 BvR 2236/04) on the German European Arrest Warrant Law” (2006) 43 CML Rev. 583, at 589–590. 375 F. Geyer, “The European Arrest Warrant in Germany – Constitutional Mistrust towards the Concept of Mutual Trust,” in E. Guild (ed.), Constitutional Challenges to the European Arrest Warrant, Wolf Legal Publishers, Nijmegen (2006), chap. 5, 101, at 117. 376 Two dissenting judges in the case, Lübbe-Wolff and Gerhardt, considered the outcome disproportionate (BVerfGE 113, 273, at 331–333 and at 342–346; [2006] 1 CMLR 378, at 423–425 and at 430– 433): the total nullity of the Act meant that extraditions based on the EAW also had to be refused in cases which did not concern German citizens and which posed no constitutional problems. Moreover Germany’s duty to respect (the then Third Pillar) EU law required an interim regulation: Vogel (2005), at 804. 377 Single Payment Intervention Act, 14 Oktober 2008, 1 BvF 4/05: BVerfGE 122, 1; [2010] 2 CMLR 37, 986.

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Concerns that the constitutional complaints seeking the unconstitutionality of data retention provisions, harmonised to EU law, could be successful were proven unfounded in the Data Retention case.378 The complainants sought an Art. 267 TFEU reference by the FCC to the ECJ that the latter make a preliminary ruling declaring void Directive 2006/24/EC379 on the retention of data. They reasoned that this would have opened up the way for a review of the challenged provisions of the domestic implementing statute by the standard of German fundamental rights since the complainants had been unable to assert this before the ordinary courts because their constitutional complaints had directly challenged the implementing statute. The FCC ruled380 that the constitutional complaints were inadmissible to the extent that the challenged domestic provisions were promulgated in implementation of the Directive. A reference to the ECJ was excluded since the potential priority of European law was irrelevant. The validity of the Directive and priority of European law over German fundamental rights which might possibly have resulted from such a conflict were not relevant to the decision. The contents of the Directive gave Germany a broad discretion and were essentially limited to the duty of storage and its extent. The Directive’s provisions did not govern access to or use of the data by Member State authorities and thus such provisions could be implemented in German law without violating constitutional fundamental rights; moreover, the Constitution did not prohibit such data storage in all circumstances. This meant that the ‘non-European’ parts of the German telecommunications statute could be reviewed against basic constitutional rights:381 “[The FCC] thus found a middle path whereby the Directive-mandated portion of the law was left unchallenged, but the portions of the German implementation legislation that exceeded the terms of the Directive were nullified until brought in line with German constitutional arrangements.” In this way, the FCC continued to respect the Solange II precedent, maintaining the layered integrity of European legal development. Yet the FCC in Data Retention had actually reversed its previous approach to the possibility of reviewing secondary legislation, set out in Single Payment 378 Data Retention, 2 März 2010, 1 BvR 256/08, 1 BvR 263/08 and 1 BvR 586/08: BVerfGE 125, 260. See M. Bäcker, “Solange IIa oder Basta I? Das Vorratsdaten Urteil des Bundesverfassungsgerichts aus europarechtlicher Sicht” (2011) 46 EuR 103; G. Hordnung & C. Schnabel, “Verfassungsrechtlich nicht schlechtin verboten – Das Urteil des Bundesverfassungsgerichts in Sachen Vorratsdatenspeicherung” (2010) 125 DVBl. 824; and D. Hanf, “Vers une précision de la Europarechtsfreundlichkeit de la Loi fondamentale – L’apport de l’arrêt ‘rétention des données’ et de la décision Honeywell du BVerfG” (2010) 46 CDE 515, at 519–531. 379 Directive 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 Directive 2002/58/EC: OJ 2006 L105/54. 380 Data Retention, 2 März 2010, 1 BvR 256/08, 1 BvR 263/08 and 1 BvR 586/08: BVerfGE 125, 260, at 306–309. 381 C. DeSimone, “Pitting Karlsruhe Against Luxembourg? German Data Protection and the Contested Implementation of the EU Data Retention Directive” (2010) 11 Ger LJ 291, at 316.

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Intervention Act.382 The relevant provisions of the 2006 Directive were ones with respect to which the national legislature had no discretion but the FCC still considered the complaints admissible,383 despite its earlier view. The justification for this was the only way to enable the FCC to make a reference to the ECJ which it ultimately refused to do.384 In the post-Lisbon Treaty EU, the FCC in Honeywell restated its power and obligation and obliged to review acts of EU bodies and institutions with regard to whether they occurred on the basis of manifest transgressions of competence or on the basis of the exercise of competence in the area of constitutional identity which was not assignable (Constitution Art. 20(1) and (2) when read with Art. 79(3)) and, where appropriate, to declare the inapplicability of EU acts for the German legal system which exceeded those competences. Nevertheless, the FCC would rarely invoke this power and it would need to be exercised in a co-operative manner with the jurisdiction of the ECJ. However, despite this opening of the FCC to making Art. 267 references, it still maintained a residual review jurisdiction where, e.g., fundamental rights were infringed by EU secondary legislation. 4. Refusals to Refer It has already been mentioned385 that the FCC—although conceding the possibility in Internationale Handelsgesellschaft—has never actually made a reference to the ECJ. An example of the FCC’s continued reticence in this matter is the NPD Verbot case386 which concerned a constitutional challenge to the ban on the extreme right-wing National Democratic Party of Germany on the grounds that the ban infringed the Constitution. In the proceedings before the FCC, the applicant Party expressly suggested that a reference should be made to the ECJ because a ban would also prevent the NPD from participating in future elections to the EP. The applicant therefore suggested that the reference would clarify the possible impact of European law on the German law on political parties. The question would be, the applicant submitted, whether European law precluded a Member State from prohibiting a political party that stood not only at national but also at EP elections. The FCC, as the originating and final judicial instance in party ban proceedings,387 refused the proposed reference since there were no questions that required 382 Single Payment Intervention Act, 14 Oktober 2008, 1 BvF 4/05: BVerfGE 122, 1; [2010] 2 CMLR 37, 986. 383 Data Retention, 2 März 2010, 1 BvR 256/08, 1 BvR 263/08 and 1 BvR 586/08: BVerfGE 125, 260, at 306–307. 384 Ibid., at 308. 385 See above at Chapter Three, point D.4. 386 Nationaldemokratische Partei Deutschlands Verbot, 22 November 2001, 2 BvB 1/01: BVerfGE 104, 218. 387 Constitution Art. 21(2) and CCA s. 13(2).

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clarification as to the interpretation of European law. The FCC’s reasoning was based on four different provisions of the then EC Treaty. First, it referred to the ECJ’s jurisdiction under Art. 234(1)(a) EC (now Art. 267(1) (a) TFEU) to interpret the Treaty and argued (i) Art. 191 EC388 (now Art. 10 TEU and Art. 224 TFEU), on the role of political parties in the EU, remained silent in respect of the conditions upon which a party could be banned in a Member State; (ii) on a reading of Art. 190 EC389 (now Art. 14(1)-(3) TEU and Art. 223 TFEU) and the 1976 Act on Direct Elections to the Assembly,390 Art. 7(2),391 it was clear that the rules governing the organisation of EP elections fell within the powers of the Member States. Further the 1976 Act, Art. 12(2) provided that a seat in the EP could become vacant as a result of national provisions, including those that related to the prohibition of the party to which the MEP belonged on the grounds of incompatibility with the Member State’s Constitution; and (iii) on the basis of the EU Charter of Fundamental Rights,392 Art. 51,393 the application of the general principles of European law—e.g., the state under the rule of law, democracy and the protection of fundamental rights—was conditional upon the EU and its Member States acting together in the application of European law. Secondly, Art. 234(1)(b) EC (now Art. 267(1)(b) TFEU), which gave jurisdiction to the ECJ to render preliminary rulings on the validity and interpretation inter alia of acts of the European institutions, was not applicable either. The 1976 Act on Direct Elections was not an act adopted by the European institutions on the basis 388 “Political parties at European level are important as a factor for integration within the Union. They contribute to forming a European awareness and to expressing the political will of the citizens of the Union. The Council … shall lay down the regulations governing political parties at European level and in particular the rules regarding their funding.” 389 “1. The representatives in the European Parliament of the peoples of the States brought together in the Community shall be elected by direct universal suffrage. 2. The number of representatives elected in each Member State shall be as follows…. In the event of amendments to this paragraph, the number of representatives elected in each Member State must ensure appropriate representation of the peoples of the States brought together in the Community…. 4. The European Parliament shall draw up a proposal for elections by direct universal suffrage in accordance with a uniform procedure in all Member States or in accordance with principles common to all Member States. The Council shall … after obtaining the assent of the European Parliament … lay down the appropriate provisions, which it shall recommend to Member States for adoption in accordance with their respective constitutional requirements.” 390 Act concerning the election of the representatives of the Assembly by direct universal suffrage: OJ 1976 L278/5. 391 “Pending the entry into force of a uniform electoral procedure and subject to the other provisions of this Act, the electoral procedure shall be governed in each Member State by its national provisions.” 392 OJ 2000 C364/1; now see OJ 2007 C303/1. 393 “1. The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers.”

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of the Treaties but rather as an agreement in public international law concluded within the field of application of the then EC Treaty, as the ECtHR had held in the Matthews case.394 Thirdly, no ground for a reference subsisted under Art. 68(1) EC395 (repealed by the Lisbon Treaty) as the case raised no questions relating to the free movement of persons within Art. 61 EC (now Art. 67 TFEU) et seq.396 Finally, the FCC ruled that, since the ban on the NPD (by German authorities) was neither an act of the European Council nor any European institution, the application for a reference under Art. 46(d) TEU397 (repealed by the Lisbon Treaty), read with ex-Art. 234 EC was also inadmissible. The FCC’s decision in NPD Verbot has not passed without criticism, with Mayer noting398 that the FCC had yet again failed to make any express reference to the fact that it felt itself bound by ex-Art. 234 EC. Moreover, Mayer continued, the procedure for banning a party contains a unique feature: the major decisions of the FCC on European law had, up until that time, been decided as a rule in the framework of two types of proceedings, either: (a) constitutional complaints under Constitution Art. 93(1); or (b) on a reference from a domestic court under Constitution Art. 100(1). The FCC was able to justify its refusal to refer questions to the ECJ by arguing that (a) the constitutional complaint was an extraordinary remedy; or (b) the reference from the lower court amounted to an interlocutory procedure. Thus, the FCC could conceivably argue that its involvement in these two sets of proceedings was supplementary or additional to the work of the actual domestic court making the decision against which no appeal lay and which was therefore itself subject to Art. 234(3) EC (now Art. 267(3) TFEU).

394 ECtHR Matthews v. United Kingdom (App. 24833/94), Judgment of 18 February 1999: (1999) 30 EHRR 361. 395 “Article 234 shall apply to this Title under the following circumstances and conditions: where a question on the interpretation of this Title or on the validity or interpretation of acts of the institutions of the Community based on this Title is raised in a case pending before a court or a tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.” 396 These Articles concerned the adoption measures aimed at creating an area of freedom, justice and security ensuring the free movement of persons in accordance with Art. 14 EC (now Art. 26 TFEU), especially with respect to external border controls, asylum and immigration and measures to prevent and combat crime in accordance with (pre-Lisbon) Art. 31(1)(e) TEU (now Art. 83 TFEU). 397 “The provisions of the Treaty establishing the European Community … concerning the powers of the Court of Justice of the European Communities and the exercise of those powers shall apply only to the following provisions of this Treaty: … (d) Article 6(2) with regard to action of the institutions, in so far as the Court has jurisdiction under the Treaties establishing the European Communities and under this Treaty…” 398 F.C. Mayer, “Das Bundesverfassungsgericht und die Verpflictung zur Vorlage an den Europäischen Gerichtshof – zugleich Anmerkung zum Beschluss vom 22. November 2001–2 BvB 1–3/01 (NPD Verbot)” (2002) 37 EuR 239, at 251.

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In party banning proceedings, this sort of argumentation was without doubt irrelevant as the FCC in this process was the only court that could make a decision. As Mayer noted,399 NPD Verbot accordingly represented an exceptional opportunity for the FCC to make fundamental observations on its duty under and its relationship with Art. 234(3) EC (now Art. 267(3) TFEU). Unfortunately, it squandered this opportunity400 and chose instead—once again—to avoid addressing the issue, effectively undermining401 the Kooperationsverhältnis between national courts and the ECJ which it had itself proclaimed in the Maastricht decision.402 More recently in the Data Retention case,403 as discussed above, the FCC managed to sidestep the issue of making a reference to the ECJ. It observed that the challenges to the relevant German law as infringing fundamental rights under the Constitution did not encompass those provisions which had been passed to implement the requirements of Directive 2006/24/EC on the retention of data. Since the potential priority of European law was therefore irrelevant to the decision of the case in hand, no reference was necessary. Refusals to refer cannot always be regarded prima facie as FCC reticence to dialogue with the ECJ. In Le-Corbusier-Möbeln404 the FCC—expressly applying the CILFIT criteria—stated that it was not necessary to refer a question for interpretation of Art. 18(1) TFEU where it was “so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved.” F. Concluding Observations In the development of its approaches to European law, the FCC may be considered as a beneficiary as well as an initiator of transjudicial communication, both intrajudicial (among the constitutional tribunals of the Member States) and interjudicial (between the ECJ and itself).405 An appreciation of the initial premise from which the FCC has expounded its own view of this relationship is firmly grounded in the immutability of the essential core of sovereignty, as determined by the Constitution itself in Arts. 20 and 79. Having had the principles contained in these Articles already cast for it as the basic tenets of the German constitutional system, the FCC accordingly took upon itself its constitutionally-defined role as the defender of these fundamentals. 399 Ibid., at 252. 400 Ibid., at 257. 401 Ibid., at 256. 402 See above at Chapter Three, point D.4. 403 Data Retention, 2 März 2010, 1 BvR 256/08, 1 BvR 263/08 and 1 BvR 586/08: BVerfGE 125, 260. 404 Le-Corbusier-Möbeln, 19 Juli 2011, 1 BvR 1916/09: BVerfGE 129, 78, at 99. 405 Generally, see F. de Londras & S. Kingston, “Rights, Security, and Conflicting International Obligations: Explaining Inter-Jurisdictional Judicial Dialogues in Europe” (2010) 58 AJCL 359, at 371–387.

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The nature of the changes wrought by the ECJ in its constitutionalisation of the Treaties only really began to draw the FCC’s attention from the 1970s: while supremacy of European law over national law and even the principle of direct effect were accepted with relatively little difficulty compared to Italy406 or France,407 the essential core of German sovereignty—initially focused on the protection of fundamental rights408 and latterly democracy409—came to be regarded as the shoals upon which the ship of European law has come close to foundering. This essential core is viewed by other national courts as a benchmark for their own standards of protection of the national constitutional order in the face of deepening European integration. The French Constitutional Council espoused the concept410 of “the essential conditions of the exercise of national sovereignty,”411 while the Italian Constitutional Court was clear in setting the ‘counter limits’412 to the transfer of the exercise of national sovereignty to the then Communities.413 The FCC’s Maastricht decision414 should therefore be seen against a broader domestic constitutional judicial reaction to pressing the accelerator pedal on further and deeper European integration. While not ultimately rejecting the ratification of the Maastricht Treaty by Germany, it did however amount to a warning

406 Italian Constitutional Court in Costa v. ENEL, Corte cost. 9 marzo 1964, n. 14: Giur. cost. 1964, 129: R. Guastini, “La primauté du droit communautaire: une révision tacite de la Constitution italienne” (2000) 9 Les Cahiers du Conseil constitutionnel 119, at 119–120. 407 French Conseil d’Etat in Syndicat Géneral de Fabricants de Semoules de France, ce 1 mars 1968, Rec. 149; [1970] CMLR 395. 408 Internationale Handelsgesellschaft, 29 Mai 1974, 2 BvL 52/71: BVerfGE 37, 271; [1974] 2 CMLR 540; and Wünsche Handelsgesellschaft, 22 Oktober 1986, 2 BvR 197/83: BVerfGE 73, 339; [1987] 3 CMLR 225. 409 Maastricht, 12 Oktober 1993: BVerfGE 89, 155; [1994] 1 CMLR 57; and Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267; [2010] 3 CMLR 13, 276. 410 These cases include Re Direct Elections to the European Parliament: Cons. constit. 29 et 30 décembre 1976, n. 71, Rec. 15; Re Abolition of the Death Penalty: Cons. constit. 22 mai 1985, n. 188, Rec. 15; Re Law authorising the approval of the Schengen Agreement: Cons. constit. 25 juillet 1991, n. 294, Rec. 91; Re the Treaty on European Union (Maastricht I): Cons. constit. 9 avril 1992, n. 308, Rec. 55; Re the Treaty on European Union (Maastricht II): Cons. constit. 2 septembre 1992, n. 312, Rec. 76; Re Organic Law concerning the Application of Article 88(3) of the French Constitution: Cons. constit. 20 mai 1998, n. 400, Rec. 251; Re the Treaty of Amsterdam: Cons. constit. 31 décembre 1997, n. 394, Rec. 344; and Re the EU Constitutional Treaty and the French Constitution: Cons. constit. 19 novembre 2004, n. 505, Rec. 173; [2005] 1 CMLR 750. 411 These “essential conditions of the exercise of national sovereignty” include the respect of the institutional structure of the French Republic; the continuity of the life of the nation; and the guarantee of the rights and liberties of the citizen. 412 Guastini (2000), at 120. 413 SpA Fragd c. Amministrazione delle Finanze dello Stato, Corte cost. 21 aprile 1989, n. 232: Giur. cost. 1989, I, 1001; M. Cartabia, “Nuovi sviluppi nelle ‘competenze comunitarie’ della Corte costutuzionale,” Giur. cost. 1989, I, 1012. 414 Maastricht, 12 Oktober 1993: BVerfGE 89, 155; [1994] 1 CMLR 57.

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shot across the bows of the EU and the ECJ.415 For their part, the French Constitutional Council and the Spanish Constitutional Tribunal both ruled that their constitution needed to be amended in order to ratify the Maastricht Treaty.416 The importance of Maastricht in Central Europe cannot be underestimated: both the Hungarian Constitutional Court417 and the Polish Constitutional Tribunal418 have, as will be seen, used it in their reasoning in respect of protecting national sovereignty in the face of European integration, as has the Czech Constitutional Court.419 It comes as no surprise then that the 2009 Lisbon case reignited the debate on the FCC’s approach to European integration, replacing the ‘constitutional restraints’ of Maastricht420 with constitutional limits to further integration. Again the FCC in Lisbon must not be viewed in isolation. For example, the conferral of powers on the Union by the Member States and the primacy of Union law within its own sphere of operation through the 2004 Constitutional Treaty remained constitutional for both the French421 and Spanish422 constitutional jurisdictions, provided the essential core of domestic sovereignty was respected. The underlying proposition of this co-operative constitutionalism423 was the cumulative respect, at national and Union level, of such values or principles as the rule of law, democracy, subsidiarity and the protection of fundamental (human) rights. A mutual respect for the particular constitutional identities of the Member States and the EU, leading to their possible conciliation and formation of the 415 Partly as a result of this decision, the ECJ refused to change its case-law and allow the horizontal direct effect of Directives to be accepted: Case C-91/92 Faccini Dori v. Recreb srl [1994] ECR I-3325, confirming Case 152/84 Marshall v. Southampton and South West Hampshire Area Health Authority (Teaching) [1986] ECR 723. On this point, see S. Weatherill, Law and Integration in the European Union, Clarendon Press, Oxford (1995), at 213–219, particularly at 217–218. In 1993 and 1994, three Advocates General had delivered Opinions in favour of overruling Marshall and acknowledging the horizontal direct effect of Directives: van Gerven AG in Case C-271/91 Marshall v. Southampton and South-West Hampshire Area Health Authority (Marshall No. 2) [1993] ECR I-4367; Jacobs AG in Case C-316/93 Vaneetveld v. SA Le Foyer [1994] ECR I-763; and Lenz AG in Faccini Dori v. Recreb itself. 416 For France: Cons. constit., 9 avril 1992, n. 308, Rec. 55; and Cons. constit., 2 septembre 1992, n. 312, Rec. 76. For Spain: Trib. Const. 10 julio 1992, DTC n. 1/1991: BOE n. 177, Suppl. 24 julio 1992. 417 See below at Chapter Four, points E.2.a. and E.2.d. 418 See below at Chapter Five, points E.2.a.-c. 419 Czech Const. Ct. Decision of 3 November 2009: Case No. Pl. ÚS 29/09. 420 Herdegen (1994), at 235. 421 Cons. const. 19 novembre 2004, n. 505, Rec. 173. G. Carcassonne, “Case Note: France. Conseil Constitutionnel on the European Constitutional Treaty. Decision of 19 November 2004, 2004–505 DC” (2005) 1 EuConst 293. 422 Trib. Const. 13 diciembre 2004, DTC n. 1/2004: BOE 4 enero 2005. C.B. Schutte, “Case Note: Spain. Tribunal Constitucional on the European Constitution. Declaration of 13 December 2004” (2005) 1 EuConst 281. 423 R. Miccú, “Toward a (Real) Cooperative Constitutionalism? New Perspectives on the Italian Constitutional Court,” in J.M. Beneyto & I. Pernice (eds.), Europe’s Constitutional Challenges in the Light of the Recent Case Law of National Constitutional Courts. Lisbon and Beyond, Nomos, BadenBaden (2011), 109–130.

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perspectives of a peaceful co-existence between national and Union pretensions for normative supremacy,424 had previously been signalled by the ECJ in the Omega case425 and was subsequently underlined and extended in Spain v. United Kingdom.426 When the French Conseil constitutionnel turned to examine the 2007 Lisbon Treaty, it reaffirmed its co-operative approach from its Constitutional Treaty decision, while identifying certain areas which would need domestic constitutional amendment before the new Treaty could be ratified.427 The Czech Constitutional Court was required to make two rulings on Lisbon,428 in the former referring to Wünsche and Maastricht, in the latter to the FCC Lisbon case. However, the Czech Court was at pains to distance itself from its German counterpart in both cases: (a) by declining the task of determining which competences were to remain with the Czech Republic, except on a case-by-case basis through specifying the contents of its own constitutional eternity clause429; (b) by not considering European democracy as fundamentally flawed due to the absence of ‘one man, one vote’ equality in EP elections, unlike its German cousin; and (c) its continued belief in the pooling or sharing of sovereignty by Member States in the EU as entailing a reinforcement rather than a loss of national sovereignty.430 The Hungarian Court’s own decision in Lisbon, examined later,431 was equally accommodating to the constitutional realities of the new EU legal order although more terse and less explicit. Moreover, these courts reiterated that the exercise of their review jurisdiction vis-à-vis European law would only occur in the most exceptional circumstances, viz. (as the Spanish CT noted in its ruling on the 2003 Constitutional Treaty432) 424 J. Roux, “Le Conseil constitutionnel et le contrôle de constitutionnalité du Traité de Lisbonne: bis repetita? A propos de la decision no. 2007–560 dc du 20 décembre 2007 (2008) 44 RTDE 5, at 16. 425 Case C-36/02 Omega Spielhallen- und Automatenaufstellungs-GmbH v. Oberbürgermeisterin der Bundesstadt Bonn [2004] ECR I-9609. 426 Case C-145/04 Spain v. United Kingdom [2006] ECR I-7917. 427 Cons. const. 20 décembre 2007, n. 560, Rec. 459. 428 (1) Czech Const. Ct. Decision of 26 November 2008: Case No. Pl. ÚS 19/08; and (2) Czech Const. Ct. Decision of 3 November 2009: Case No. Pl. ÚS 29/09. J. Zemánek, “The Two Lisbon Judgments of the Czech Constitutional Court,” in Beneyto & Pernice (eds.) (2011), 45–63. 429 The eternity clause is found in 1992 Czech Constitution (as amended), Art. 9(2): “Any changes in the essential requirements for a democratic state governed by the rule of law are impermissible.” This must be read with Constitution Art. 1(1): “The Czech Republic is a sovereign, unitary, and democratic state governed by the rule of law, founded on respect for the rights and freedoms of man and citizens.” It is the key provision with respect to the EU and also in relation to Constitution Art. 10(1): “Certain powers of Czech Republic authorities may be transferred by treaty to an international organisation or institution.” 430 Thus the Czech Court at least – as a Central European constitutional tribunal – does not feel obliged to follow the ubiquitous German example: P. Bříza, “Case Note: The Czech Republic. The Constitutional Court on the Lisbon Treaty: Decision of 26 November 2008” (2009) 5 EuConst 143; and J. Komárek, “The Czech Constitutional Court’s Second decision on the Lisbon treaty of 3 November 2009” (2009) 5 EuConst 345. 431 Dec. 143/2010 (VII.14) AB: ABH 2010, 698. 432 Trib. Const. 13 diciembre 2004, DTC n. 1/2004: BOE 4 enero 2005.

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where the making and applying of European law failed to comply with the basic principles and limits set by national constitutions and these excesses could not be remedied by European institutions in the ordinary procedures provided under the Treaties. It could therefore be argued that such exceptional circumstances would then amount to a grave and manifest breach of domestic constitutional principles forming the essential core of a nation’s sovereignty and constitutional identity, a matter which the FCC found in Lisbon to trigger its constitutional identity review powers and repeated in respect of the ultra vires review in Honeywell.433 Also plagued by problems is the relationship of the FCC and the ECJ and its oftlauded but seldom fully respected Kooperationsverhältnis (as propounded by the FCC itself in Maastricht434) that has been difficult to implement in practice. Without doubt, the ruling in Lisbon could ultimately lead to a radical repositioning, not only of the FCC but of the other sister courts, in their relationship with the ECJ and European law. Or they might ultimately come round to a more friendly Europarechtsfreundlichkeit position as announced in Lisbon. The complementarity of national and European review standards has been emphasised435 since the FCC in Lisbon modelled its concept of constitutional identity review on the corresponding European obligation under Art. 4(2) TEU to respect Member States’ national identity.436 The resulting complementarity of standards being accordingly emphasised by the FCC437 seems also to have been implied in its ruling in Honeywell438 where it suggested that, before using its ultra vires review jurisdiction in subsequent cases, the ECJ had to be given the opportunity to rule in the case. Honeywell itself has however seen a divergence in its usage in Central Europe, with the Polish Constitutional Tribunal439 taking its lead from the FCC and expressly advocating its own use of the Art. 267 TFEU reference procedure while the erstwhile Euro-friendly Czech Constitutional Court deciding that it was not bound by previous interpretations of EU law by the ECJ.440 433 Honeywell, 6 Juli 2010, 2 BvR 2661/06: BVerfGE 126, 286; [2011] 1 CMLR 33, 1067. 434 But not even mentioned by it in Lisbon. 435 Thym (2010), at 1810–1811. 436 Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267, at 350; [2010] 3 CMLR 13, 276, at 335, concerning constitutional identity and ultra vires review as an “expression of the foundation of Union authority in the constitutional law of the Member States.” 437 Ibid., at 353–354; ibid., at 337. Schwarze’s exhortation is most apposite (J. Schwarze, “Die verordnete Demokratie: Zum Urteil des 2. Senats des BVerfG zum Lissabon-Vertrag” (2010) 45 EuR 108, at 116–117. Footnote omitted): “Wir brauchen in diesem Kooperationsverhältnis keine neuen Regeln, die dieses näher ausgestalten. Wir brauchen nur den Willen beider Gerichte, auf der Basis des geltenden Gemeinschaftsrechts diese Zusammenarbeit vertauensvoll zu praktizieren.” 438 Honeywell, 6 Juli 2010, 2 BvR 2661/06: BVerfGE 126, 286, at 304; [2011] 1 CMLR 33, 1067, at 1085. 439 See below at Chapter Five, point E.2.d. 440 Czech Const. Ct., Decision of 31 January 2012: Case No. Pl. ÚS 5/12. See R. Zbíral, “Czech Constitutional Court, judgment of 31 January 2012, Pl. ÚS 5/12: A Legal revolution or negligible episode? Court of Justice decision proclaimed ultra vires” (2012) 49 CML Rev. 1475.

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The formulation of a German model cannot accordingly be viewed in isolation from the evolution of approaches by other national constitutional tribunals when faced with the demands of deepening European integration. Although the precise impact of the Euro crisis cases may be difficult to gauge at the moment, the focus on retaining parliamentary control over deepening EU integration may eventually find a resonance in the case-law of the HCC and the Polish CT.441 For example, the creative use of democracy and the right to vote to give individuals the standing to seek FCC review of economic and financial decision-making of the government (ostensibly in favour, generally, of the Bundestag) might have the effect of emboldening the HCC to use its own interpretative capacities in order to circumvent the constitutional restrictions put on its review control, vis-à-vis financial and economic matters, through a creative use of the right to human dignity.442 At the same time, the model is itself considered important for systems much less influenced by German legal culture; thus it is strongly arguable that it is likely to be much more dominant in systems deriving much of their law and mentalité from Germany. This is the theme of the next two Chapters.

441 For example, in furtherance of ensuring observance, inter alia, of the constitutional principle of democracy, the Polish CT has not hesitated to protect and balance the interests of both parliamentary chambers – the Sejm and the Senate – vis-à-vis the government in its decision-making on EU policy: Dec. K 24/04, 12 January 2005: OTK ZU 2005/1A, Item 3. On this issue, see generally A. Bodnar, “Poland: EU Driven Democracy?” in W. Sadurski & L. Morlino (eds.), Democratization and the European Union. Comparing Central and Eastern European Post-Communist Countries, Routledge, London (2010), 19–44. 442 See below at Chapter Four, points A.1. and E.2.e.

CHAPTER FOUR

THE HUNGARIAN CONSTITUTIONAL COURT AND EUROPEAN LAW: A CASE OF “SLOW AND STEADY WINS THE RACE”? Background The collapse of communism and the transformation of the systems of rule in Central Europe occurred at a seemingly rapid pace. Economic problems and systemic decay began to resurface in the centrally- (and politically-) controlled command economies during the 1980s. While reforms came early to Hungary in 1988, the process of change was longer drawn out.1 It could be said that in the process of dismantling communism and creating a democratic, constitutional state, Hungary retraced its steps back to the 1956 October Revolution—only on this occasion it met with success. The transformation ironically was initiated by reformers within the Communist Party who sought to achieve their aim of effective parliamentary supremacy over arbitrary state power through a ‘constitutional revolution.’2 Together with Poland, Hungary helped pioneer the movement for institutional reform: the symbolic cutting of the Iron Curtain by Hungarian soldiers starting in May 1989 precipitated the collapse of communist government throughout Central Europe. The 1949 Constitution of the People’s Republic of Hungary3 was heavily amended in 19894 following the roundtable discussions between the government and opposition and enshrined fundamental principles such as the rule of law, the separation of powers, the protection of human rights and the maintenance of the democratic process. This 1989 revision and the further amendments of 19905 created a new constitutional system—purged of its previous communist

1 J.F. Brown, Surge to Freedom: The End of Communist Rule in Eastern Europe, chap. 4, “Hungary: Toward the Civil Society,” Admantine Press, London (1991), at 92–123. 2 See P. Paczolay, “The New Hungarian Constitutional State: Challenges and Perspectives,” in A.E. Dick Howard (ed.), Constitution Making in Eastern Europe, Woodrow Wilson Center Press, Washington (1993), chap. 2, 21, at 25. 3 For the original text, see Act XX of 1949 on the Constitution of the Hungarian People’s Republic: MK 1949/174, 1355ff. 4 Act XXXI of 1989 on the Amendment of the Constitution: MK 1989/74. 5 Act XXIX of 1990 and Act XL of 1990, both on the Amendment of the Constitution: MK 1990/46 and MK 1990/59, respectively.

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elements—without necessitating the adoption (at that time) of a completely new charter:6 a new constitution was thus adopted ‘under the cover of revision’ and will be cited to hereafter as the ‘1990 Constitution’ for ease of reference7 to distinguish it from the pre-reform communist constitution.8 Hungary remained in the avant garde of former communist countries in transition towards democratic and economic liberalisation,9 becoming the first such country to sign a general Agreement with the EEC (December 1988)10 as well as one of the first to accede to the Council of Europe (1990).11 These were followed by a Europe Agreement (concluded in December 1991),12 a mixed agreement between Hungary and the EEC and its Member States.13 Having applied to join the Union on 31 March 1994, Hungary eventually began negotiations in earnest with other Central and Eastern European countries (‘CEECs’) at the end of October 1998, concluding them in December 2002.

6 This reformed Constitution was expressed as being a temporary one in the Preamble, “until the adoption of the new Constitution of our country.” It was thus intended to serve the process of transition from communism to democracy and not to bind the new, democratically-elected Parliament. Such approach was ultimately confirmed by the HCC in Dec. 61/2011 (VII.13) AB: ABH 2011, 290. 7 Also because a fully revised and consolidated version of the postcommunist Constitution was published on 24 August 1990: MK 1990/84. 8 On the 1990 Constitution generally, see A. Jakab, “The Republic of Hungary: Commentary,” in R. Wolfrum & R. Grote (eds.), Constitutions of the Countries of the World, Oceana (OUP), New York (2008). 9 A.F. Tatham, “European Community Law Harmonization in Hungary” (1997) 4 MJ 249, at 249– 250; and generally, P. Balázs, Az Europai Unió Külkapcsolatai és Magyarország [The External Relations of the European Union and Hungary], Közgazdasági és Jogi Könyvkiadó, Budapest (1996), at 120–145. 10 Agreement between the EEC and the Hungarian People’s Republic on Trade and Commercial and Economic Cooperation: OJ 1988 L327/2. Signed on 26 September 1988, effective as of 1 December 1988. This trade agreement was concluded on the basis of Art. 207 TFEU (ex-Art. 113 EEC): Commission Decision 595/88, OJ 1988 L327/1; MK 1989/4, 54. 11 Hungary joined the Council of Europe on 6 November 1990 and, on the same day, signed the ECHR, ratifying it on 15 October 1992. Available at: . Accessed 12 January 2009. 12 Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Hungary, of the other part: OJ 1993 L347/1. It came into force on 1 February 1994 after obtaining all the necessary ratifications. However an Interim Agreement applied the commercial and economic chapters of the Europe Agreement from 1 March 1992 (OJ 1992 L116/2): since this fell squarely within EC competence, the Commission alone was able to sign such an agreement with Hungary without needing the ratification of the then 12 Member States. 13 A.F. Tatham, “The Direct Effect of Europe Agreements: Recent Rulings of the European Court of Justice” 2002/6 Mezinárodní a Srovnávací Právní Revue 7. The EAs were a form of mixed agreement since they encompassed areas for which the then Community had exclusive competence, such as commercial policy, and areas that remained largely within the competence of the Member States, such as culture. The EAs therefore required ratification by the Member States’ parliaments as well as the European Parliament that proved to be a time-consuming process and thus led the then Community eventually to enter into Interim Agreements with nearly all the CEECs in relation to certain topics falling exclusively within the Community’s competence.

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Accession together with seven other CEECs as well as Cyprus and Malta, occurred on 1 May 2004.14 Following the coming to power of a conservative coalition government in 2010 with a two-thirds majority in Parliament (necessary, inter alia, to amend the Constitution or enact another one without the assistance of opposition parties),15 it was announced that a new Constitution16 would be drafted to replace the 1990 one. The new Constitution was presented to Parliament for a vote in 2011 and entered into force on 1 January 2012 (hereafter ‘the 2011 Constitution’).17 From a number of different perspectives, both academics18 and regional institutions19 have subjected the 2011 Constitution to much consideration as well as critical comment.20 As already mentioned in relation to the preceding Chapter on Germany, this one on Hungary follows a similar pattern. The Chapter therefore starts by outlining the process of constitutional review, focusing on the main procedures by which European law issues might come before the Hungarian Constitutional Court (‘HCC’) (A.). The research then examines the essential core of sovereignty, i.e., that part of a State’s existence without which it would cease to be: in its pre2012 case-law, the HCC had in some ways attempted to formulate an essential core 14 A.F. Tatham, Enlargement of the European Union, Kluwer Law International, Alphen aan den Rijn (2009), chap. 5, 71, at 88, 93 and 111–112. 15 1990 Constitution Art. 24(3). 16 Although its title in Hungarian is ‘Alaptörvény’ which can be rendered as either ‘Fundamental Law’ or, like the German, ‘Basic Law,’ for ease of reference the term ‘Constitution’ will be maintained in this book. 17 Hungarian Fundamental Law (25 April 2011): MK 2011/43 (no statute number was given for the 2011 Constitution). For an initial consideration of the 2011 Constitution, see A. Jakab, Az új Alaptörvény keletkezése és gyakorlati következményi [The formation and practical consequences of the new Basic Law (Constitution)], HVG-ORAC, Budapest (2011). 18 N. Chronowski, T. Drinóczi & M. Kocsis, “What questions of interpretation may be raised by the new Hungarian constitution?” (2012) 6/1 Vienna J Intl. Const. L 41–64; L. Csink, B. Schanda & A.Zs. Varga (eds.), The Basic Law of Hungary: A First Commentary, Clarus Press, Dublin (2012); Editorial Comments, “Hungary’s new constitutional order and ‘European unity’” (2012) 49 CML Rev. 871–884; K. Kovács & G.A. Tóth, “Hungary’s Constitutional Transformation” (2011) 7 EuConst 183–203; G.A. Tóth (ed.), Constitution for a Disunited Nation. On Hungary’s 2011 Fundamental Law, CEU Press, Budapest (2012); A. Vincze, “The New Hungarian Constitution: Redrafting, Rebranding or Revolution?” (2012) 6/1 (2012) 6/1 Vienna J Intl. Const. L 88–109. 19 See, e.g., European Commission for Democracy Through Law (‘Venice Commission’), Opinion on Three Legal Questions Arising in the Process of Drafting the New Constitution of Hungary, Opinion no. 614/2011 CDL-AD(2011)001, adopted by the Venice Commission at its 86th Plenary Session (Venice, 25–26 March 2011), Venice Commission/Council of Europe, Strasbourg (28 March 2011). Available at: ; and European Commission for Democracy Through Law (‘Venice Commission’), Opinion on the New Constitution of Hungary, Opinion no. 621/2011 CDL-AD(2011)016, adopted by the Venice Commission at its 87th Plenary Session (Venice, 17–18 June 2011), Venice Commission/Council of Europe, Strasbourg (20 June 2011). Available at: . Both accessed 23 September 2012. 20 Although detailed consideration of these issues generally falls beyond the pale of the present work, reference to such criticisms will be made at the appropriate places in Chapter Four.

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through interpretation of the Constitution, inspired by the German model (B.). The Chapter continues by addressing the issue of transfers of sovereignty in the face of European integration, providing a constitutional matrix within which the courts examined have operated (C.). The focus of this research work is the case-law of the HCC. Due to the fact that the HCC has considered European law in only a few cases and then has not always been forthright in its approach, its acceptance of certain principles and matters regarding European law may (at the most) only be inferred from its decisions: supremacy or priority of application; direct effect; as well as references to the European Court of Justice (D.). However, as with the German Chapter, this one similarly addresses the limits the HCC has put on its acceptance of European law, basically its defence of the essential core of sovereignty; its review of national legislation transposing European law into the domestic system; as well as refusals, if any, to refer questions to the ECJ (E.). The Conclusion, heavily influenced by the 2010 Lisbon Treaty case as well as by the terms of the 2011 Constitution, seeks to discern the extent to which the HCC has both attempted to maintain a continuing judicial dialogue with the ECJ and been influenced in following its German cousin. A. Constitutional Review 1. Introduction When the 1989 Constitutional Court Act came into force, Hungary had already experienced several years of constitutional control within the domestic system21 through the institution of a Constitutional Council (Alkotmányjogi Tanács) in the early 1980s.22 With its competence limited mainly to administrative matters, the Constitutional Council did not however amount to a constitutional court.23 With the onset of the political transformation process, the new Constitution Art. 32/A provided the fundamental basis for the establishment and operation of

21 A. Holló, Az Alkotmányvédelem kialakulása Magyarországon, Bíbor Kiadó, Miskolc (1997), at 37–61. 22 Introduced through amendment to the 1949 Constitution (MK 1983/60) and implemented by statutory enactment in Act I of 1984 on the Constitutional Council: MK 1984/18. 23 K.-J. Kuss, “New Institutions in Socialist Constitutional Law: the Polish Constitutional Tribunal and the Hungarian Constitutional Council” (1986) 12 Review of Socialist Law 343, at 366. According to the same commentator, the Council was initiated not to protect the civil rights of citizens but rather to safeguard the economic reform. This opinion was underlined by the Council’s first ruling in which it suspended a 1978 ministerial decree on liquidation of businesses on the ground that it had violated the independence granted to enterprises and co-operatives in the course of reform efforts.

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a constitutional court.24 The coming into force of the heavily-amended 1949 Constitution was accompanied by enactment of Act XXXII of 1989 on the Constitutional Court in October 1989, thus giving effect to Art. 32/A;25 the HCC itself started to function on 1 January 1990 and from that time onwards has maintained its central role in “the construction of a state founded upon the rule of law.”26 Having been generally modelled on the various continental constitutional courts—particularly the German, Spanish and Austrian—the HCC is essentially a vehicle for determining the constitutionality of laws and other legal norms and the protection of human rights.27 With its entry into force, 2011 Constitution Art. 24 has reaffirmed this role of the HCC28 and set out the various heads of jurisdiction. Moreover, as will be seen, the new Act on the Constitutional Court, Act CLI of 2011,29 is more closely aligned to the jurisdiction of the FCC. In view of the fact that many of the HCC’s earlier decisions were rendered under the former legal rules, it is intended to deal with the differences to the HCC’s powers in the 1989 and 2011 Acts by addressing, in the following sections, each statute in turn and by noting any relevant differences between them. Like the 2011 Constitution, the 2011 Constitutional Court Act has itself been the subject of various criticisms with concerns that the changes in its competences have undermined the HCC’s authority both to protect the Constitution and to act as part of the system of checks and balances with the legislature and executive.30 Perhaps as rather symptomatic of these changes are the limitations placed on constitutional review of state economic and financial matters. Under 2011 Constitution Art. N, in the course of performing its duties, the HCC (together with 24 1990 Constitution Art. 32/A provided: “(1) The Constitutional Court shall review the constitutionality of laws and perform the tasks assigned to its jurisdiction by statute. (2) The Constitutional Court shall annul the statutes and other legal norms that it finds to be unconstitutional. (3) Everyone has the right to initiate proceedings of the Constitutional Court in the cases specified by statute.” 25 30 October 1989, MK 1989/77. Hereinafter “the 1989 Act.” See Holló (1997), at 63–113; and P. Tilk, Az Alkotmánybíróság hatásköre és működése, PT ÁJK, Pécs (2002). 26 See Preamble to Act XXXII of 1989 on the Constitutional Court. 27 Paczolay (1993) at 44; I. Pogány, “Constitutional Reform in Central and Eastern Europe: Hungary’s Transition to Democracy” (1993) 42 ICLQ 332, at 341. 28 2011 Constitution Art. 24(1): “The Constitutional Court shall be the supreme body for the protection of the Constitution.” 29 Act CLI of 2011 on the Constitutional Court: MK 2011/136. This is a two-thirds majority act or cardinal act according to 1990 Constitution Art. 32/A(6) and 2011 Constitution Art. 24(5), respectively. 30 See, e.g., European Commission for Democracy Through Law (‘Venice Commission’), Opinion on Act CLI of 2011 on the Constitutional Court of Hungary, Opinion no. 665/2012 CDL-AD(2012)009, adopted by the Venice Commission at its 91st Plenary Session (Venice, 15–16 June 2012), Venice Commission/Council of Europe, Strasbourg (19 June 2012). Available at: . Accessed 23 September 2012; Chronowski, Drinóczi & Kocsis (2012), at 54–60; Kovács & Tóth (2011), at 193–195; and Vincze (2012), at 107–108.

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other state organs) is bound to respect the principle of balanced, transparent and budgetary management. This notion is reinforced by 2011 Constitution Art. 37(4), which—as long as the level of state debt exceeds one half of GDP—only permits the HCC the possibility of exercising constitutional review31 over statutes concerning the state budget and taxes in respect of infringements of the right to life and human dignity, of the protection of personal data, of the freedom of thought, conscience and religion, or of rights related to Hungarian citizenship. By avoiding the right to property as a basis for infringement, the 2011 Constitution effectively protects the government from HCC interference with economic and financial policy which had occurred under the pre-2012 rules, e.g., against the ‘Bokros package’ of austerity measures of the mid-1990s, named after the then finance minister, when the HCC ruled32 unconstitutional a series of statutes which contained serious reductions in social benefits on the grounds that the government’s failure to maintain at least a nominal level of social support violated fundamental rights and that the speed with which these programmes had been amended violated the principle of legal certainty. However, in this respect, the HCC may not be totally deprived of its powers and ingenious interpretation may yet allow it to circumvent such restrictions already imposed. In Dec. 37/2011 (V.10) AB,33 the HCC had been called upon to review a 98% tax levied on certain persons and enacted with a retroactive effect of five years. In annulling this retroactive tax—on the grounds that it attempted to tax gains on which tax had already lawfully been paid—the HCC held that the retroactive taxation of a legal income, generated without infringing any laws, in a tax year which had already ended—“represents such a degree of public interference in an individual’s autonomy that it lacks an acceptable [justifiable] reason and is thus contrary to human dignity.” It is thus arguable that the HCC could use the right to human dignity as a means of supervising government economic and tax policies under the 2011 Constitution if, e.g., they infringe social rights. A further limit to the HCC’s ability to interpret provisions of the 2011 Constitution is the fact that—under Art. R(3)—such interpretation is required to be conducted in accordance with their purposes, the Avowal of National Faith contained in it, and with the achievements of the historical Constitution. This latter wording may be broad enough to cover the HCC’s previous rulings under the 1990 Constitution and thus allow them to be incorporated (via this reference) into HCC practice under the 2011 Constitution, at least to the extent that the 1990 and 2011 constitutional provisions are worded the same or in a similar fashion: this argument is

31 On the basis of 2011 Constitution Art. 24(2)(b)-(e). This therefore only covers ex post/a posteriori review but not ex ante/a priori nor the examination of international treaties. 32 For example, Dec. 43/1995 (VI.30) AB: ABH 1995, 188. See further the analysis of K. Lane Scheppele, “A Realpolitik Defense of Social Rights” (2004) 82 Texas LR 1921. 33 Dec. 37/2011 (V.10) AB: ABH 2011, 225.

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particularly apposite in relation to the provisions on the essential core of sovereignty as well as the Europe clause in each Constitution, matters to be discussed below.34 2. Types of Constitutional Review a. Act XXXII of 1989 The 1989 Act (as amended) provided under s.1 for the competence of the HCC.35 Of relevance to the present study was the abstract norm control under s. 1(a) for the a priori examination, inter alia, of the unconstitutionality of statutes passed but not yet promulgated, and international treaties. This abstract norm control36 was extended by the HCC in Dec. 53/1993 (X.13) AB37 to cover constitutional review of an unpromulgated statute vis-à-vis an international treaty. This leads to the matter of ex post constitutional review: first there was the possibility of abstract norm control under s. 1(b),38 for which anyone was entitled to initiate the a posteriori examination for the unconstitutionality of laws (the socalled ‘actio popularis’).39 Coupled with this, was the concrete norm control, in particular, according to s. 38(1), when a judge had to initiate an action before the HCC while suspending proceedings before them where, in the course of such proceedings, such judge considered as unconstitutional the legal rule (or other means of state control) which they needed to apply. Under s. 38(2), litigants in a similar situation might do likewise. Moreover, s. 1(b) permitted anyone to challenge a domestic legal norm which had been promulgated in order to transpose an international treaty into domestic law as discussed shortly below. The HCC could also exercise an abstract norm control to examine any legal rule for its conformity with an international treaty under s. 1(c), either ex officio40 or on the motion of the Parliament, one of its standing committees or an MP; the President of the Republic; the Government or one of its Ministers; the President of the State Audit Office; the President of the Supreme Court; or the Chief Public Prosecutor.41 Lastly, under s. 1(e), the HCC had a somewhat unique competence in the elimination of an unconstitutionality manifesting itself in an omission or failure

34 See at Chapter Four, points B. and C. 35 The rules of standing were laid down principally in s. 21 of the 1989 Act, and were subject to further elaboration in ss. 33–51 of the same Act. 36 1989 Act, ss. 1(a) and 33–37. 37 ABH 1993, 323. 38 1989 Act, ss. 1(b) and 37–44. 39 1989 Act, ss. 37 and 21(2). 40 1989 Act, s. 44. 41 1989 Act, ss. 44 and 21(3)(a)-(f).

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to legislate.42 The HCC was entitled to examine either ex officio or upon anyone’s motion whether the legislator had failed to comply with its duty to legislate and, as a result of the omission, whether an unconstitutional situation had been created. If such unconstitutionality were manifested in the omission, the organ in question was required to fulfil its legislative duty according to the terms set by the HCC. The HCC similarly had the jurisdiction43 to establish that a legislative organ had failed to fulfil its legislative task issuing from an international treaty, then it requested the organ which committed the omission to fulfil its task within a set deadline. On its face, then, s. 1 of the 1989 Constitutional Court Act appeared to limit the review jurisdiction of the HCC to an a priori examination of the constitutionality of international treaties, limiting the locus standi for such action to Parliament, the President of the Republic, and the Government.44 In the late 1990s,45 however, the HCC definitively ruled that its review of constitutionality with respect to international treaties extended to post-promulgation norm control, whereby it could consider the provisions of the statute which transformed the treaty into domestic law. The rules of standing under s. 1(b) of the 1989 Act consequently allowed anyone to challenge the constitutionality of a treaty in this way and this was strongly reaffirmed in Dec. 4/1997 (I.22) AB,46 in which the HCC ruled that it had jurisdiction to determine the constitutionality of the Hungarian statute that had promulgated the EC-Hungary Europe Agreement into domestic law, thereby allowing in principle the petitioner to seek his a posteriori review of the statute. This confirmed the importance of the use of the actio popularis, thereby allowing individuals to challenge the constitutionality of treaties via the relevant domestic implementing statutes or other legal norms once they had been enacted. b. Act CLI of 2011 Under the 2011 Act, the functions and nature of constitutional review have been greatly altered, most importantly with the abolition of the actio popularis which was a peculiarly Hungarian institution and one which had encouraged stakeholder participation in ensuring constitutionality rested in the hands of citizens

42 1989 Act, ss. 1(e) and 49. 43 1989 Act, s. 47. 44 1989 Act, s. 36(1). 45 Originally, in Dec. 30/1990 (XII.15) AB (ABH 1990, 128, at 131–132), the HCC had stated that it could review the domestic norm promulgating an international treaty since, “as a law [it] is not an exception to the legal rules which could be examined by the Constitutional Court.” But in Dec. 61/B/1992 AB (ABH 1993, 831), it reversed its previous opinion and stated: “According to the provisions of s.1 of the Constitutional Court Act, the a posteriori review of the unconstitutionality of a ratified and promulgated international treaty does not belong to the jurisdiction of the Constitutional Court.” 46 ABH 1997, 41.

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as well as the political institutions and had thus formed an integral part of Hungarian constitutional culture.47 In addition, the erstwhile constitutional review jurisdiction over an omission or failure to legislate has similarly been removed by the 2011 Act. 2011 Constitution Art. 24(2) and 2011 Act, Chapter II, ss. 23–46 provide the various aspects of HCC jurisdiction. A priori examination has been retained under the 2011 Act for statutes passed but still to be promulgated as well as international treaties for certain political actors. Thus for pre-promulgated statutes, a priori review can be commenced by the majority of MPs (on the motion of the proponents of the bill, the government or the Speaker of the House) and by the President of the Republic.48 For international treaties, in whole or in part, such preliminary review may be commenced at the request of the President before he acknowledges its binding force; where an international treaty is promulgated in a government decree then the government can seek review before it acknowledges its binding force. Given the end of the actio popularis, a posteriori constitutional review in its abstract form is now limited to proceedings brought by the government, a quarter of all MPs or the Commissioner for Fundamental Rights (‘Ombudsman’)49 against a legal rule (or a provision of it). However that rule (or provision) must not have already been reviewed on its merits vis-à-vis the same constitutional provision or principle (value) and in the same constitutional context: in other words, unless circumstances have fundamentally changed since the earlier HCC decision, the matter is regarded as res judicata.50 Under the new rules, judges retain their previous right to initiate concrete review of a legal rule in the case before them which they perceive to be unconstitutional.51 Similarly, the HCC has maintained its earlier jurisdiction to review domestic legal rules against the provisions of an international treaty, either ex officio in any proceedings before it or on request (with a modified list of actors) of one quarter of MPs, the government, the President of the Curia,52 the Chief Public Prosecutor or the Commissioner for Fundamental Rights.53 Likewise, ordinary judges can suspend proceedings and commence a review before the HCC where—in the course

47 For a view supporting the change, see European Commission for Democracy Through Law (‘Venice Commission’), Opinion on Three Legal Questions Arising in the Process of Drafting the New Constitution of Hungary, Opinion no. 614/2011, at 11–13. Available at: . Accessed 23 September 2012. 48 2011 Constitution Arts. 6(2) and (4) and 24(2)(a), together with 2011 Act, s. 23. 49 2011 Constitution Art. 24(2)(e) and 2011 Act, s. 24(2). 50 2011 Act, s. 24(3). 51 2011 Constitution Art. 24(2)(b) and 2011 Act, s. 25. 52 The former Supreme Court was redesignated the ‘Kúria’ under 2011 Constitution, Art. 25. 53 2011 Constitution Art. 24(2)(f) and 2011 Act, s. 32.

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of adjudicating an actual case—they are required to apply a legal rule that they consider as infringing an international treaty.54 Lastly, on the petition of Parliament, a parliamentary standing committee, the President of the Republic or the government, the HCC is to provide an interpretation of provisions of the Constitution with respect to a specific constitutional issue provided that this interpretation can be deduced directly from the Constitution.55 3. Constitutional Complaints (Fundamental Rights Protection) a. Act XXXII of 1989 Under s. 1(d) of the 1989 Constitutional Court Act,56 the HCC was able to carry out concrete control of legal norms by adjudicating constitutional complaints submitted because of alleged violations of rights guaranteed by the Constitution. Such complaints might be brought by anyone57 if the injury were consequential to the application of the unconstitutional legal rule and if the person had exhausted all other possible legal remedies or no further legal remedies were available to them. The problem that the applicable legal rule was unconstitutional might also arise in the course of a case before an ordinary court. In such circumstances the judge, in addition to suspending the case, could petition the HCC if the case under consideration required the application of a law or other legal instrument of state administration whose unconstitutionality the judge had noted.58 Similarly, a person, according to whom the legal rule to be applied in their case was unconstitutional, might lodge a request that the judge suspend proceedings and petition the HCC.59 b. Act CLI of 2011 The former rules have now been somewhat improved by allowing for a constitutional complaint on the basis not only of legal rules applied in a particular case but also of a judicial decision.60 Again, in both situations, the individual or organisation affected may submit a complaint if both their rights enshrined in the Constitution have been violated and all possible remedies have been exhausted or no possible remedy is guaranteed.61

54 2011 Constitution Art. 24(2)(f) and 2011 Act, s. 32(2). 55 2011 Constitution Art. 24(2)(g) and 2011 Act, s. 38(1). 56 1989 Act, ss. 1(d), 48 and 40–43. 57 1989 Act, ss. 21(4) and 48(1). 58 1989 Act, s. 38(1). 59 1989 Act, s. 38(2). 60 2011 Constitution Art. 24(2)(c) and (d) and 2011 Act, ss. 26–31. 61 2011 Act, ss. 26(1) and 27(1).

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A further filter is provided in that the HCC has the power to accept the complaint if a conflict with the Constitution significantly affects the judicial decision, or the case raises constitutional law issues of fundamental importance.62 The 2011 Act also allows,63 in proceedings aimed at the review of a judicial decision, the HCC may conduct a review of a legal rule; moreover, in complaint proceedings seeking review of a legal rule, the HCC can also examine the constitutionality of a judicial decision. B. Essential Core of Sovereignty 1. Introduction In Hungary, the Constitution is the supreme legal norm.64 Every legal rule has to be in accordance with the provisions of the Constitution and derives its force from the Constitution.65 Under 2011 Constitution Art. R(1), the Constitution is “the foundation of the legal system of Hungary.”66 However, the concept of the essential core of sovereignty, similar to the non-amendable provisions of the German Constitution, does not form an explicit part of the rubrics of Hungarian constitutional academic literature or practice.67 Nevertheless, it may be said that the general contours of fundamental constitutional principles and, to some extent, their content have already been delineated.68 Through a series of cases in the 1990s, the HCC commenced the process of determining these constitutional principles—including rule of law, democracy, and protection of fundamental human rights. Such principles already provide a certain definition to the borders of the essential core of sovereignty. Moreover, with the prospect of Hungarian accession to the EU, academic writers increasingly began to reflect on the effects of such accession on national sovereignty.69 62 2011 Act, s. 29. 63 2011 Act, s. 28. 64 On hierarchy under the 1990 Constitution, see Zs. Balogh et al., Az Alkotmány magyarázata, KJK-Kerszöv Jogi és Üzleti Kiadó (2003), at 102–109. 65 L. Sólyom, Az alkotmánybíráskodás kezdetei Magyarországon, Osiris Kiadó, Budapest (2001), at 435–441; J. Petrétei, Magyar alkotmányijog I, Dialóg Campus Kiadó, Budapest & Pécs (2002), at 115–209. 66 According to Constitution Art. R(3), the provisions of the Constitution are to be interpreted in accordance with their purposes, with the Avowal of National Faith contained in it, and with the achievements of the historical Constitution. 67 See, e.g., generally I. Kukorelli, Alkotmánytan [Constitutional Doctrine], Osiris Kiadó, Budapest (1998). But see A. Bragyova, Az uj alkotmány: egy koncepciója [The New Constitution: A Conception], Közgazdasági és Jogi Könyvkiadó, Budapest (1995), at 31–42. 68 Petrétei (2002), at 85–94. 69 See generally, J.L. Kiss (ed.), Szuverenitás és integráció, BIGIS Közlemények No. 2, 1994; G. Béla & I. Hülvely, “Szuverenitás – nemzetállam – integráció,” MTA Politikai Tudományok Intézete, Budapest (1995); L. Valki, “Az Európai Unióhoz csatlakozó Magyarország szuverenitás” 1999/8 Magyar Tudomány 1000; Cs. Törő, “A szuverenitás változása” [2000] Pro Minoritate 103; J. Szabadfalvi,

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The most important principle applied in the HCC’s practice is the principle of the rule of law70 embedded in 1990 Constitution Art. 2(1) which stated that—“the Republic of Hungary shall be an independent, democratic state under the rule of law”; this phrasing has been replicated in 2011 Constitution Art. B(1). It was within the frame of the rule of law concept that “the differences in nature and characteristics of the system change could find their expression.”71 Through the rulings of the HCC, especially on the process of transition, the rule of law brought within its train such concepts as legal certainty,72 legality,73 continuity of the law,74 separation of powers,75 and constitutionality. Decision 9/1992 (I.30) AB76 was the starting point for the HCC’s new understanding of Art. 2(1) of the 1990 Constitution. Henceforth, any violation of this rule of law clause was a sufficient basis for unconstitutionality. This was rendered possible by the elaboration of the content and criteria of the rule of law, chief among these being legal certainty.77 In the judgment, the HCC referred to Art. 2(1) as a general constitutional provision which declared the basic values of the Republic: independence, democracy and the rule of law. It continued by noting78 that the principle of the rule of law was expounded in further detail by other constitutional provisions although they did not comprise the whole content of this fundamental value. For that reason, the interpretation of the notion of the rule of law “Nemzetállam és szuverenitás [Nation-State and Sovereignty],” in P. Takács (ed.), Államelmélet, Bíbor Kiadó, Miskolc (1997), 125–140; V. Kóré, “Az állami szuverenitás egyes kérdései az európai integráció tükrében” 2004/1 Magyar Közigazgatás 21. 70 Sólyom (2001), at 404–405 and at 686–739; Petrétei (2002), at 98–103; Balogh (2003), at 34–82; A. Holló & Zs. Balogh, Az értelmezett alkotmány, Magyar Hivatalos Közlönykiadó, Budapest (2005), at 13–90; G.A. Tóth, Túl a szövegen: Értekezés a Magyar alkotmányról, Osiris, Budapest (2009), at 147–151; and J. Martonyi, “A köztársaságról, a demokráciáról és a jogállamról,” in L. Trócsányi (ed.), A mi alkotmányunk, Complex, Budapest (2006), 49, at 49–52. 71 L. Sólyom & G. Brunner, Constitutional Judiciary in a New Democracy: The Hungarian Constitutional Court, University of Michigan Press, Ann Arbor (2000), at 38. 72 Dec. 10/1992 (II.25) AB: ABH 1992, 72. 73 Dec. 9/1992 (I.30) AB: ABH 1992, 59; and Dec. 11/1992 (III.5) AB: ABH 1992, 77. 74 Dec. 10/1992 (11.25) AB: ABH 1992, 72. 75 Sólyom (2001), at 734–739, at 749–753, and at 756–768ff; J. Petrétei, Magyar alkotmányijog II: Államszervezet, Dialóg Campus Kiadó, Budapest & Pécs (2001), especially at 11–25. In the course of its interpretation of the provision of the Constitution, the HCC pointed out that the principle of the separation of powers must be adhered to in every case: Dec. 31/1990 (XII.18) AB: ABH 1990, 136. In its case law, the HCC has ruled on a number of cases involving the separation of powers: the powers of the President of the Republic (Dec. 48/1991 (IX.26) AB: ABH 1991, 217; Dec. 37/1992 (VI.10) AB: ABH 1992, 227; Dec. 36/1992 (VI.10) AB: ABH 1992, 207) the independence of the judiciary (Dec. 38/1993 (VI.11) AB: ABH 1993, 256; Dec. 28/1995 (V.19) AB: ABH 1995, 138; Dec. 45/1994 (X.21) AB: ABH 1994, 254; Dec. 17/1994 (III.29) AB: ABH 1994, 84) and the autonomy of local governments (Dec. 16/1991 (IV.20) AB: ABH 1991, 58; Dec. 4/1993 (II.12) AB: ABH 1993, 48; Dec. 64/1993 (XII.2) AB: ABH 1993, 373; Dec. 18/1993 (III.19) AB: ABH 1993, 161. 76 Dec. 9/1992 (I.30) AB: ABH 1992, 59. 77 Sólyom (2001), at 706–721. 78 ABH 1992, 59, at 65.

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was one of the HCC’s important tasks, to be decided on a case-by-case basis. Nevertheless, the violation of the fundamental value of the rule of law enumerated in the Constitution was in itself a ground for declaring a certain legal rule unconstitutional. The HCC then examined legal certainty which it considered as an indispensable component of the rule of law. Legal certainty compelled the State (primarily the legislature) to ensure that the law in its entirety, in its individual parts and in its specific legal rules were clear and unambiguous and that their operation was ascertainable and predictable for the persons to whom the norms were addressed. In this sense, then, legal certainty not only required the clarity (lack of ambiguity) in individual legal norms but also the predictability of the operation of the individual legal institutions. It was in that way, the HCC said, that procedural guarantees were fundamental for legal certainty. Only by following the formal rules of procedure could a valid rule be created, only by complying with the procedural norms did legal institutions operate in a constitutional manner.79 If legal certainty formed one of the technical pillars of the rule of law, the other one was the need to maintain the principled coherence of the Constitution.80 The HCC follows the principle of the unity of the Constitution and under this principle it seeks to develop a coherent system through interpretation.81 This approach echoes that of the FCC which, in its first major decision, underlined the internal coherence and structural unity of the German Constitution as a whole, stating:82 “No single constitutional provision may be taken out of its context and interpreted by itself…. Every constitutional provision must always be interpreted in such a way as to render it compatible with the fundamental principles of the Constitution and the intentions of its authors.” The then President of the Court, Sólyom, elaborated upon the philosophical basis of constitutional interpretation when delivering his concurring Opinion in Dec. 23/1990 (X.31) AB83 where he said84 that the HCC had to form a coherent

79 Nevertheless, the principle of legal certainty left ample room for balancing and decisionmaking opportunities for the legislature since the rule of law also demanded the realisation of other principles, some of which might conflict with the requirement of legal certainty. In this case, the HCC referred to the doctrine of equity (enabling the rendering of a just decision in an individual case) or the requirement of substantive justice (finality of judgments, in its precise formal and substantive determination, was a constitutional requirement, part of the rule of law). 80 Sólyom & Brunner (2000), at 41. 81 Paczolay (1993), at 45. 82 Southwest State, 2 BvG 1/51, 23 Oktober 1951: BVerfGE 1, 14. 83 Dec. 23/1990 (X.31) AB: ABH 1990, 88. 84 ABH 1990, 88, at 97–98. Cf. the FCC in Prinzessin Soraya (14 Februar 1973, 1 BvR 112/65: BVerfGE 34, 269, at 287): “Under certain circumstances law can exist beyond the positive norms which the state enacts – law which has its source in the constitutional legal order as a meaningful, allembracing system, and which functions as a corrective to the written norms…. [The judge] may have to make a value judgment … that is, bring to light and implement in his decisions those value

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system with its judgments in order to provide a reliable (and immutable) standard of constitutionality, a so-called ‘invisible constitution’ that existed beyond the Constitution as this latter was often subject to amendment by shifting changing political interests; nevertheless, in his view, this ‘invisible constitution’ would probably not conflict with future constitutions. Consequently, the HCC’s rather activist position85 was pivotal in reshaping the legal system and in balancing the conflicts of the political powers.86 Nevertheless, as Paczolay noted,87 the HCC gave an unconditional priority to the formalistic and procedural requirement of the rule of law as the only possible ‘objective’ interpretative method in the midst of the change of regime. Indeed, this appears to be one of the main justifications for the HCC’s rather formalistic conception of the rule of law wherein it specifically refused to equate that principle with justice,88 stressing that—consistent with constitutionalism—it was most important to consider the rule of law as requiring predictability and legal certainty. This approach was in contradistinction to that of the FCC which clearly links the rule of law to justice:89 while both countries experienced a transition from authoritarianism to democracy, issues relating to the transition played no discernible role before the FCC unlike the HCC. 3. Democracy Participatory democracy has numerous constitutional techniques and guarantees.90 Under the terms of 1990 Constitution Art. 2(2)—“all power is vested in the

concepts which are inherent in the constitutional legal order, but which are not, or not adequately, expressed in the language of the written laws.” 85 Generally on how the HCC approached its role, A. Holló, “Aktivizmus és passzivizmus az Alkot mánybíróság gyakorlatában,” in B. Bitskey (ed.), Tíz eves az alkotmánybíróság, Alkotmánybíróság, Budapest (2000), at 167ff. 86 P. Paczolay, “The Rate of Constitutional Adjudication in Legal Change,” in I. Grudzinska Gross (ed.), Constitutionalism & Politics, IV Bratislava Symposium 1993, Slovak Committee of the European Cultural Foundation, Bratislava (1994) 293, at 295. The HCC, within its first few years of operation, made a number of important rulings on such matters as capital punishment (Dec. 23/1990 (X.31) AB: ABH 1990, 88); abortion (Dec. 64/1991 (XII.17) AB: ABH 1991, 297); church/state relations (Dec. 4/1993 (II.12) AB: ABH 1993, 48); presidential powers (Dec. 48/1991 (IX.26) AB: ABH 1991, 217; Dec. 36/1992 (VI.10) AB: ABH 1992, 207); compensation for previous illegal seizure of property by the State (Dec. 21/1990 (X.4) AB: ABH 1990, 73; Dec. 16/1991 (IV.20) AB: ABH 1991, 58); media (Dec. 37/1992 (VI.10) AB: ABH 1992, 227); the environment (Dec. 28/1994 (V.20) AB: ABH 1994, 134); and on same sex partnerships (Dec. 14/1995 (III.13) AB: ABH 1995, 82). One commentator has also highlighted the HCC’s particular case-law in the interpretation of human dignity: C. Dupré, Importing the Law in PostCommunist Transitions: The Hungarian Constitutional Court and the Right to Human Dignity, Hart Publishing, Oxford (2003). 87 Paczolay (1993), at 35. 88 Dec. 11/1992 (III.5) AB: ABH 1992, 77. 89 Prinzessin Soraya, 14 Februar 1973, 1 BvR 112/65: BVerfGE 34, 269. 90 Tóth (2009), at 151–156.

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people who exercise their sovereignty through elected representatives and directly.” The two constitutional participatory legal principles are equal, their harmony being established by several HCC Decisions.91 2011 Constitution Art. B(2) provides that “the source of public power shall be the people” and Art. B(3), “the people shall exercise their power through their elected representatives or, in exceptional cases, directly.” It may be that this 2011 wording might have an impact on the equality, already established through pre-2012 HCC case-law, between direct and indirect democracy under the 1990 Constitution. Although the Preamble to the 1990 Constitution listed among the goals of the transition ‘parliamentary democracy’ and Art. 2(1) declared Hungary to be a democratic state under the rule of law, the HCC never really dealt directly with the principle of democracy.92 Rather it tended to deal with it within the context of parliamentarianism93 or of the rule of law. In Dec. 52/1997 (X.14) AB,94 the HCC was faced with the political problems surrounding two competing referenda on the same question, the first initiated by voters as an obligatory referendum which the Government tried to ‘overtake’ with its own discretionary referendum.95 In the relationship between direct exercise of power by the people and representative democracy, the obligatory referendum— as an exceptional form of the exercise of popular sovereignty—required Parliament to refrain from any act or omission which would influence or frustrate the realisation of this direct exercise of power, even to the point of preventing other state organs from committing like acts or omissions. The matter was entirely different as regards discretionary referendums where Parliament maintained complete control as to whether the proposed initiative should continue or that the wording could be altered. As an exercise of power through representation, discretionary referenda therefore ranked below obligatory ones.

91 See generally G. Halmai, “Népszavazás és képviseleti demokrácia” (2008) 14 Jura 29–43; and C. Horváth, “Országos népszavazások Magyarországon” (2008) 14 Jura 54–63. 92 Martonyi (2006), at 49–52; Sólyom (2001), at 405–409 and at 739–753; Petrétei (2002), at 94–98. 93 L. Trócsányi, “Az 1–2. §-hoz,” in Trócsányi (2006), at 52–55; Sólyom (2001), at 749–753; Balogh (2003), at 30–31 and at 68–72; A. Körösényi, “A pártokról és a szakszervezetekről,” in Trócsányi (2006), 62, at 62–64. 94 ABH 1997, 331. 95 In a 1997 amendment to the 1990 Constitution, national referenda and popular initiatives became constitutional institutions. According to 1990 Constitution Art. 28/B, any question falling within the competence of Parliament could be the subject of a referendum (the exceptions are listed in Art. 28/C(5)). In initiating an obligatory referendum the signature of 200,000 citizens eligible to vote was required (Art. 28/C(2)), while a number of political actors could initiate a discretionary referendum (Art. 28/C(4)) including the President of the Republic, the Government, or one third of MPs as well as 100,000 citizens’ signatures. However, in the latter case, it was then for Parliament to decide whether or not to hold such a referendum. 2011 Constitution Art. 8 substantially repeats these provisions, save that MPs may not initiate a referendum.

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In Dec. 30/1998 (VI.25) AB,96 the HCC noted that one of the requirements of a democratic state under the rule of law, based on the sovereignty of the people,97 was the fact that state power might only be exercised on the basis of democratic legitimation.98 All norms of public law enforceable against subjects of domestic law were to be based on it. Exercise of power by the State was subject to such a requirement in respect of both internal and external activities.99 4. Protection of Fundamental Human Rights The 1990 Constitution contained the fundamental provision on civil and political rights100 under Art. 8(1): “The Republic of Hungary recognises the inviolable and inalienable fundamental rights of man; to respect and protect these rights is a primary obligation of the State.” Under the 1990 Constitution, these rights were regulated in detail by appropriate laws. The next paragraph, Art. 8(2), stated that “rules pertaining to fundamental rights and duties shall be determined by statute, which, however, may not limit the essential content of any fundamental right.” These provisions were replaced in the 2011 Constitution by Art. I which substantially repeats the wording of the 1990 provisions while expanding, e.g., the scope to include collective rights and fundamental rights of legal entities: (1) The inviolable and inalienable fundamental rights of MAN shall be respected. It shall be the primary obligation of the State to protect these rights. (2) Hungary shall recognise the fundamental individual and collective rights of Man. (3) The rules relating to fundamental rights and obligations shall be laid down in Acts. A fundamental right may only be restricted in order to allow the exercise of another fundamental right or to protect a constitutional value, to the extent that is absolutely necessary, proportionately to the objective pursued, and respecting the essential content of such fundamental right.

96 ABH 1998, 220. See A.F. Tatham, “Constitutional Judiciary in Central Europe and the Europe Agreement: Decision 30/1998 (VI.25) AB of the Hungarian Constitutional Court” (1999) 48 ICLQ 913; J. Volkai, “The Application of the Europe Agreement and European Law in Hungary: The Judgement of an Activist Constitutional Court on Activist Notions,” No. 8/99 Jean Monnet Working Paper, Harvard Law School, Harvard (2000). Available at: . Accessed 21 August 2006; L. Keckés, EU jog é jogharmonizáció, HVG-ORAC Lap- és Könyvkiadó, Budapest (2003), at 579–587. 97 Sólyom (2001), at 741–743; Petrétei (2002), at 85–86; Balogh (2003), at 298–311. 98 Balogh (2003), at 76–82. 99 In view of the extensive transfer of powers inherent in EU accession, there was no doubt that such a fundamental change in the sovereignty of Hungary would require legitimation through democratic processes: in the event, the HCC having rejected several petitions challenging the holding of a referendum on EU accession in Dec. 14/2003 (IV.9) AB (ABH 2003, 903), such accession was subsequently approved through popular referendum and parliamentary approval in 2003. 100 G. Halmai & G.A. Tóth (eds.), Emberi jogok, Osiris Kiadó, Budapest (2003); J. Sári, Alapjogok: Alkotmánytan II, 3rd ed., Osiris Kiadó, Budapest (2004); Sólyom (2001), at 416–435 and at 442–685; N. Chronowski & E. Rózsás, Alkotmányjog és közigazgatási jog, Dialóg Campus Kiadó, Budapest & Pécs (2005), at 13–151; Balogh (2003), at 527–710.

the hungarian constitutional court151 (4) Legal entities established by an Act shall also have the fundamental rights, and they shall also be bound by the obligations which, by their nature, apply not only to human beings.

The Bill of Rights under the 1990 Constitution Arts. 54–70/K has been largely, but not completely, replicated in 2011 Constitution Arts. I-XXXI which provide an extensive list of fundamental rights and obligations. Under the 1990 Constitution, the decisions of the HCC evidenced a clear hierarchy of fundamental rights from the point of view of their relation to then Art. 8(2). At the top were the rights to life and human dignity, the inviolability of which were considered absolute: “Human life and human dignity constitute an inseparable unit and the greatest value above all. The right to human life and dignity … is an indivisible and unlimitable fundamental right which restricts the criminal jurisdiction of the state.”101 After these, the next group consisted of the fundamental rights of communication: freedom of expression, religion and conscience.102 The HCC considered the right to freedom of expression to be the ‘mother right’ of all fundamental rights dealing with communication103 and referred to its characteristics in the subsequent rulings on the freedom of broadcasting104 and the freedom of religion.105 An increased protection of these rights was guaranteed by the fact that, in the view of the HCC, laws that restricted the freedom of expression were themselves to be strictly interpreted. The HCC emphasised that the freedom of expression protected opinion without considering its value or truthfulness.106 Other fundamental rights, when they conflicted with these two groups of rights, were to be interpreted restrictively. The right to property, for example, was qualified not only through the recognition of the so-called burdens of property (i.e., the possibility of its restriction in the interests of public welfare) but also through the problems surrounding compensation for previous Communist nationalisations.107 In respect of these, the HCC established the so-called necessity and proportionality test, that is: the rights constituting the said group might only be restricted by necessity and proportional to the aim to be attained.108 As seen earlier in this section, these criteria are now contained in 2011 Constitution Art. I(3) which only allows restriction on a fundamental right “to allow the exercise of another fundamental right or to protect a constitutional

101 Dec. 23/1990 (X.31) AB: ABH 1990, 88. 102 Sólyom & Brunner (2000), at 11. 103 Dec. 30/1992 (V.26) AB: ABH 1992, 167. 104 Dec. 37/1992 (VI.10) AB: ABH 1992, 227. 105 Dec. 4/1993 (II.12) AB: ABH 1993, 48. 106 Dec. 36/1994 (VI.24) AB: ABH 1994, 219. 107 Dec. 64/1993 (XII.22) AB: ABH 1993, 373. 108 Dec. 30/1992 (V.26) AB: ABH 1992, 167; Dec. 37/1992 (VI.10) AB: ABH 1992, 227.

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value, to the extent that is absolutely necessary, proportionately to the objective pursued, and respecting the essential content of such fundamental right.” The HCC has for long used the ECHR109 and its interpretations by the ECtHR in its case-law.110 This is perhaps not coincidental since the contents of many of the 1990 Hungarian constitutional provisions on the protection of human rights were a direct, word-for-word translation of the ECHR.111 Indeed, one of the bases upon which the HCC abolished the death penalty in Dec. 23/1990 (X.31) AB112 was the Sixth Protocol to the ECHR—well before the Convention’s coming into force domestically.113 The Bill of Rights in the 2011 Constitution was drafted on the basis of the EU Charter of Fundamental Rights (‘CFR’), the ECHR and the case-law of the HCC and the ECtHR.114 Nevertheless, the 1990 Constitution and HCC case-law focused on respect of the principle of the equal dignity of all people but this dignitycentred approach is now almost completely absent from the 2011 Constitution: fundamental rights have accordingly been placed in a new context.115 And while resort to the ECJ and the ECtHR may offer some control over government/state action with respect to fundamental rights, this is a poor second to effective protection by the HCC.116

109 See generally, L. Sólyom, “The Interaction between the Case-Law of the European Court of Human Rights and the Protection of Freedom of Speech in Hungary,” speech delivered at Conference, autumn 1996, Strasbourg [copy on file with the author of the present work]; and A. Ádám, Alkotmányi értékek és alkotmánybíráskodás [Constitutional values and Constitutional jurisdiction], Osiris Kiadó, Budapest (1998), chap. 3, at 89–99. 110 A. Drzemczewski, “Ensuring Compatibility of Domestic Law with the European Convention on Human Rights Prior to Ratification: The Hungarian Model” (1995) 16 HRLJ 241. 111 There is a plethora of cases in this respect, e.g., Dec. 39/1997 (VII.1) AB: ABH 1997, 263 in which the HCC used a number of ECtHR decisions: Le Compte, Van Leuven and De Meyere (ECtHR, 23 June 1981, Series A, No. 43); Albert and Le Compte (ECtHR, 10 February 1983, Series A, No. 58); and Obermeier (ECtHR, Judgment of 28 June 1990, Series A, No. 179). 112 Dec. 23/1990 (X.31) AB: ABH 1990, 88. 113 Through Act XXXI of 1993: MK 1993/41. Hungary had signed the ECHR on 6 November 1990 and ratified it on 15 October 1992. 114 On 21 February 2011, the Hungarian Deputy Prime Minister and Minister of Public Administration and Justice, dr. Tibor Navracsics, requested the Venice Commission (of the Council of Europe) to prepare a legal opinion on three particular issues arising from the framework of the drafting of the 2011 Constitution including, inter alia, the question of its conformity with the EU CFR. The Venice Commission broadly welcomed the use of the EU CFR but only as a starting point for the protection of rights under the draft 2011 Constitution: European Commission for Democracy Through Law (‘Venice Commission’), Opinion on Three Legal Questions Arising in the Process of Drafting the New Constitution of Hungary, Opinion no. 614/2011, at 5–8. Available at: . Accessed 23 September 2012. 115 Chronowski, Drinoczi & Kocsis (2012), at 49–50. 116 For a wide-ranging analysis on the draft Bill of Rights, see N. Chronowski, “Az alapjogvédelem globális, európai és hazai trendjei [Global, European and National Trends of Fundamental Rights Protection]” (2011) 26 Pázmány Law Working Papers 1, at 13–17. Available at: . Accessed 15 August 2012.

the hungarian constitutional court153 C. Transfers of Sovereignty and European Integration 1. Introduction

Before 2003, the 1990 Hungarian Constitution did not provide a framework to deal with EU accession.117 As a result, the Hungarian Government published a Paper in 2001 which attempted to set the agenda for national discussions on constitutional amendments as well as the main issues of EU accession. The Paper suggested118 that an accession clause ought to specify the procedure for the ratification and promulgation of the Accession Treaty: a strict procedure would involve ratification by two thirds of MPs. It continued by recognising that although there was no constitutional requirement to hold any referendum on the issue of EU accession, the fact that accession “fundamentally affects people’s sovereignty” justified holding a binding referendum since that would provide the ultimate legitimation for accession. It was clear then that accession to the EU could only be achieved by referendum coupled with amendment to the Constitution. 2. Transfer of the Exercise of Sovereignty a. Constitution and HCC Interpretations The main provisions of the 1990 Constitution concerning sovereignty were set out in its first Chapter.119 According to 1990 Constitution Art. 2(1), “Hungary shall be an independent, democratic state under the rule of law,” while under Art. 2(2), “all power is vested in the people, who exercise their sovereignty through elected representatives and directly.” This principle of popular sovereignty was considered in Dec. 52/1997 (X.14) AB120 in which the HCC (as noted above) clearly regarded the

117 Although this had already been suggested by Bragyova (1995), para. 37, at 34–35; and formed part of the proposals for a new Constitution in the 1990s: V. Lamm (ed.), Constitution of the Repub lic of Hungary (Draft), Hungarian Academy of Sciences, Institute for Legal and Administrative Sciences, Working Paper No. 9, MTA Állam-és Jogtudományi Intézete, Budapest (1997), Art. 3; and I. Somogyvári, “Az uniós csatlakozás alkotmánymódosítást igénylő” 2001/1 Európai Közigazgatási Szemle (A Magyar Jog melléklete) 22–27. 118 Ministry of Justice & Ministry of Foreign Affairs, Az Európai Unióhoz való csatlakozásnak a magyar jogrendszert érintő egyes kérdései, Joint Paper for the Hungarian Government, Budapest, January 2001, IM/EUR/2000/TERVEZET/228/8 (2001), at 18. Available at: . Accessed 28 March 2001. Copy also on file with author. This Paper will be referred to hereafter as ‘the 2001 Government Paper.’ 119 Holló & Balogh (2005), at 94–126; Gy. Fóris, “A szuverenitásról és az európai intergrációról,” in Trócsányi (2006), 56, at 56–59; A. Jakab, “A szuverenitás fogalmához kapcsolódó kompromisszumos stratégiák, különös tekintettel az európai integrációra” 2006/2 Európai Jog 3, at 5–6 and at 8; and Tóth (2009), at 156–163. 120 Dec. 52/1997 (X.14) AB: ABH 1997, 331. This case concerned the priority between compulsory referenda under Art. 28/C(2) when petitioned for by at least 200,000 voters and discretionary referenda under Art. 28/C(4) when petitioned for by at least 100,000 voters (or certain political actors) and approved by Parliament: see above at Chapter Four, point B.3.

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sovereignty of the people as paramount in certain circumstances, to which Parliament had to give way. Further in Dec. 5/2001 (II.28) AB,121 the HCC ruled that the definition of sovereignty could be linked to Art. 2(1) and (2), according to which popular sovereignty was in fact the basis for Hungary being an independent, democratic state under the rule of law. Sovereignty, according to the HCC,122 was a conceptual criterion of international law and possessed two dimensions: first, the internal dimension expressed the independence of the state and the ability of its constitution and the legal system based on it to create its own institutional set-up and to maintain it through the exercise of power by the people living on its territory; and, secondly, the external dimension meant the state’s independence and its capacity under international law, so that it could freely and independently decide in its relations with other states. Nevertheless, there was implicit recognition of the existence of constitutional restrictions on the transfer of sovereignty, their focus being Art. 2(1) and (2) on democracy and popular sovereignty.123 The HCC had considered such propositions in relation to the EU in its ruling on the constitutionality of the domestic law promulgating the Europe Agreement, Dec. 30/1998 (VI.25) AB,124 in which it noted that, within its own jurisdiction, the State might dispose of its powers (related to national sovereignty) within the framework of its international relations. As a natural consequence of the conduct of such relations, limitations on sovereignty could be caused by undertaking international obligations. According to the HCC in Dec. 5/2001 (II.28) AB,125 “sovereignty—although it means the state’s supreme power and independence—cannot be unlimited. International law limits the independence of the state.” Since international law secured the legal equality for states, the effect of the limitation of sovereignty occurred as the exercise of self-restraint by the state itself: such self-restraint was exemplified by the creation of international treaties and accession to them.126

121 ABH 2001, 86. 122 ABH 2001, 86, at 89. 123 Ficsor had considered much earlier that the HCC could examine whether these principles would become devoid of substance because of the supranational nature of the EU. In view of Constitution Art. 2(1) and (2), the following assumption was maintained, viz., that such a level of restriction of sovereignty required for EU accession would infringe the then Constitution. (Such problem could, of course, be resolved by constitutional amendment.) The HCC would consider impermissible the impairment of the principle of democracy based on people’s representation and the protection of fundamental rights, examples of and bound up with the principle of a state under the rule of law: M. Ficsor “Megjegzések az európai közösségi jog és a nemzeti alkotmány viszonyáról [Comments on the relationship between EC law and the National Constitution]” (1997) XLIV Magyar Jog, Part I, 462; Part II, 526, at 529. 124 ABH 1998, 220. 125 ABH 2001, 86, at 89. 126 In Dec. 36/1999 (XI.26) AB (ABH 1999, 320, at 322), the HCC had indicated that the sovereignty of states could be limited in international treaties through an adequate level of law.

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However, this self-restraint did not eliminate sovereignty rather, especially in international relations, it was a fundamental precondition for co-operation as well as for signing international treaties. Consequently, state power exercised by Parliament, embodying sovereignty through representatives, was not an unlimited power and had to be exercised in accordance with the Constitution.127 In Dec. 30/1998 (VI.25) AB, the HCC further discussed the importance of Constitu tion Art. 2(1) and (2) when it observed that128 one of the requirements of a democratic state under the rule of law, based on popular sovereignty, was that public authority might only be exercised on the basis of democratic legitimacy. Such exercise of public authority included, inter alia, the determination of the institutional, procedural and substantial features of legislation and the enforcement of law. Thus the democratic legitimacy of exercising public authority was a constitutional requirement for both internal and external acts of sovereign power aimed at the determination of international relations or resulting in international obligations. It continued:129 According to the Constitution, as far as the legal norms to be applied in the Republic of Hungary are concerned, the requirement of democratic legitimacy based on popular sovereignty and on being a democratic state under the rule of law means that the adoption of such norms can be traced back to the absolute source of sovereignty. It is, therefore, a general principle to be followed on the basis of Constitution Art. 2(1) and (2) that all legal norms of a public law nature to be applied in the domestic law to Hungarian subjects of law must be based on democratic legitimacy allowing them to be traced back to popular sovereignty.

As a result, unless Parliament had a separate and express constitutional authorisation, it could not constitutionally infringe a legal field falling within the exclusive competence of the State. In other words such authorisation was a sine qua non to permit limitations on Hungarian sovereignty. Here one can definitely understand the almost unique precedence Art. 2 enjoyed in the 1990 Constitution. Any restriction on sovereignty, as understood by interpretation of Art. 2, needed a specific, explicit and distinct constitutional authorisation and Parliament could not amend the Constitution in a disguised manner by adopting or promulgating an international treaty.130 The democratic legitimation of a transfer of sovereign power to the EU therefore needed a constitutional amendment and probably the expression of the sovereignty of the people through a popular referendum.131 Any purported

127 Dec. 2/1993 (I.22) AB: ABH 1993, 33, at 36. 128 Dec. 30/1998 (VI.25) AB: ABH 1998, 220, at 233. 129 Ibid., at 234. 130 Ibid. 131 L. Blutman & N. Chronowski, “Az Alkotmánybíróság és a közösségi jog: alkotmányjogi paradoxon csapdájában (I.)” 2007/2 Európai Jog 3, at 12–13.

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transfer made by parliamentary vote alone could easily be deemed insufficient, and thus inherently unconstitutional. b. Europe Clause: 1990 Constitution Consequently, in the face of pending EU accession, the focus in Hungary was almost exclusively on the wording of an accession clause,132 the prism through which all other issues were viewed.133 The process for adopting the necessary constitutional amendment to allow for accession took several months to complete134 which eventually led to amendment of the 1990 Constitution by addition, through Act LXI of 2002,135 of Art. 2/A as the Europe clause:136 (1) By virtue of treaty, the Republic of Hungary, in its capacity as a Member State of the European Union, may exercise certain constitutional powers jointly with other Member States to the extent necessary in connection with the rights and obligations conferred by the treaties on the foundation of the European Union and the European Communities (hereinafter referred to as “European Union”); these powers may be exercised independently and by way of the institutions of the European Union. (2) The ratification and promulgation of the treaty referred to in para. (1) shall be subject to a two-thirds majority vote of the Parliament.

The 2002 Act also provided that the Constitution would be altered in various respects. Of importance for the present discussion was s. 2 of the Act which provided for the adding of a fourth paragraph to 1990 Constitution Art. 6 to read: “The Republic of Hungary shall take an active part in establishing a European unity in order to achieve freedom, well-being and security for the peoples of Europe.” This wording was evidently inspired by the wording of the German Constitution, Preamble and Art. 23.137

132 The draft was a compromise between a number of differing views and proposals put forward by legal academics and politicians: see in particular, N. Chronowski, Integrálódó alkotmányjog [Integrating constitutional law], Dialóg Campus, Pécs (2005). 133 2001 Government Paper, at 10; and L. Kecskés, “Indító tézisek a Magyar Köztársaság Alkotmánya EU-vonatkozású szabályainak továbbfejlesztéséhez” 2004/3 Európai Jog 3, at 6–10. 134 See the detailed explanation in L. Kecskés, EU Jog és Jogharmonizáció, HVG-Orac, Budapest (2003), at 593–603; N. Chronowski & J. Petrétei, “EU-csatlakozás és alkotmánymódosítás: minimális konszenzus helyett politikai kompromisszum” (2003) L Magyar Jog 449–466. 135 MK 2002/161. 136 On the Europe clause, see Balogh (2003), at 127–131; Holló & Balogh (2005), at 129; P. Sonnevend, “Magyar Alkotmány és EU-csatlakozás,” in A. Jakab & P. Takács, A Magyar jogrendszer átalakulása: 1985/1990–2005. Jog, rendszerváltozás, EU-csatlakozás, Gondolat Kiadó and ELTE ÁJK, Budapest (2007), Vol. II, 964, at 964–967; and L. Trócsányi, “A 2/A. §-hoz,” in Trócsányi (2006), 60, at 60–61. A further (unsuccessful) bill – Bill No. T/4486, proposed in July 2003 – would have allowed for a clause amounting to a general authorisation for transfer of exercise of powers to an international organisation; a separate clause would have referred exclusively to the EU. 137 See above at Chapter Three, point C.2.

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In addition, the 2002 Act provided that the electorate would be asked to vote in a referendum on 12 April 2003138—after the conclusion of the accession negotiations but some 11 days before the signing of the Treaty of Accession in Athens at the European Council meeting. The 2003 EU accession referendum was the first to be held generally in accordance with 1990 Constitution Arts. 28/B-28/D as well as the 1997 Electoral Procedure Act139 and the 1998 Referendum Act.140 However, because of the overwhelming importance of the accession, the binding referendum and its date were actually ordered by the Constitution through a new—temporary141—provision, Art. 79:142 “A binding referendum shall be held on the accession of the Republic of Hungary to the European Union pursuant to the Accession Treaty. The date of this referendum shall be 12 April 2003. The question to be put in the referendum shall be: ‘Do you agree that the Republic of Hungary should become a Member of the European Union?’” Post referendum, the Treaty of Accession, in accordance with 1990 Constitution Art. 30/A(1)(b) was signed by the President of the Republic, and countersigned by the Prime Minister as responsible Minister within the terms of 1990 Constitution Art. 30/A(2). Since Hungary operates a dualist system,143 the Treaty of Accession was then brought into the domestic system by means of a two-thirds majority statute, Act XXX of 2004144—as required under 1990 Constitution Art. 2/A(2) and the same as a constitutional amendment—and entered into force on 1 May 2004, the date of EU accession for Hungary and the other CEECs, together with Cyprus and Malta. This ‘Europe clause’ of the 1990 Constitution thus represented a more modest version of the separate European integration chapters contained in the constitutions of Austria, Germany and France.145 138 The procedural terms and deadlines of the referendum called for 12 April 2003 calculated according to calendar days were set forth in Minister of the Interior Decree 33/2002 (XII.23) BM r. 139 Act C of 1997 on Electoral Procedure: MK 1997/96. 140 Act III of 1998 on Referendums and Popular Initiatives: MK 1998/13. The previous referendum on NATO membership, 16 November 1998, had been held under the terms of the Act XVII of 1989 on Referendums and Popular Initiatives: MK 1989/39. 141 Act LXI of 2002 on the Amendment to the Constitution, s. 11(3) provided that it was to lose force on EU accession. 142 As inserted into the Constitution by Act LXI of 2002 on the Amendment to the Constitution, s. 10. 143 It has done so for the best part of its history since the late 19th century: I. Arató, “Hungarian Jurisprudence relating to the Application of International Law by National Courts” (1949) 43 AJIL 536. 144 Act XXX of 2004 on the promulgation of the 2003 Accession Treaty: MK 2004/60. 145 A.F. Tatham, “The European Clause of the Hungarian Constitution: a Comparative Perspective” (2005) Collectio Iuridica Universitatis Debreceniensis, Volume V, 255. While Kecskés accepted the Europe clause (L. Kecskés, “Magyarország EU-csatlakkozásának alkotmányossági problémái és a szükségessé vált alkotmánymódosítás folyamat. II. Rész [The Constitutional Problems concerning Hungary’s EU Accession and the Process of the Necessary Amendment of the Constitution. Part II]”

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c. Europe Clause: 2011 Constitution With the entry into force of the 2011 Constitution, a new Europe clause146—based largely on 1990 Constitution Arts. 2/A and 6—was introduced. 2011 Constitution Art. E provides: (1) In order to enhance the liberty, prosperity and security of European nations, Hungary shall contribute to the creation of European unity. (2) With a view to participating in the European Union as a member state, Hungary may exercise some of its competences arising from the Fundamental Law jointly with other member states through the institutions of the European Union under an international agreement, to the extent required for the exercise of the rights and the fulfilment of the obligations arising from the Founding Treaties. (3) The law of the European Union may stipulate a generally binding rule of conduct subject to the conditions set out in paragraph (2). (4) The authorisation to recognise the binding nature of an international agreement referred to in paragraph (2) shall require a two-thirds majority of the votes of the Members of Parliament.

There is a clear shift between the two constitutions: 1990 Constitution Art. 2/A(1) referred to Hungary exercising certain constitutional competences “jointly with other Member States; these powers may be exercised separately through the institutions of the European Union.” The latter phrase may be considered as covering EU secondary legislation. In 2011 Constitution Art. E(2), the supranational element—at first glance—appears to have been eliminated so that the competences exercised jointly with other Member States are now only done so “through the institutions of the European Union.” However, 2011 Constitution Art. E(3) allows for EU law to determine binding rules of conduct and this might be considered as covering the enactment of EU secondary legislation.147 If this view were prove to be correct, then the differences between the Europe clauses in the two constitutions would appear to be slight. It would then follow on from that that the pre-2012 HCC case-law on EU law would remain applicable without any change. The only other point to note is that, on a reading of 2011 Constitution Art. E(4), the Hungarian Parliament retains an exclusive right to vote on amendments to the founding treaties of the EU. It is therefore arguable that only where the founding (2003) III/2 Európai jog 24), other academics were not convinced: I. Vörös, “The Legal Doctrine and Legal Policy Aspects of the EU-Accession” (2003) 44/3–4 Acta Juridica Hungarica 141, at 162–163; and N. Chronowski, Constitution and Constitutional Principles in the EU, Dialóg Campus Kiadó, Budapest and Pécs (2005), chap. V, 123, at 129–130. 146 For a full discussion of this clause and other EU aspects of the 2011 Constitution, see the analysis of A. Bragyova, “No New(s), Good News? The Fundamental Law and the European Law,” in G.A. Tóth (ed.), Constitution for a Disunited Nation. On Hungary’s 2011 Fundamental Law, CEU Press, Budapest (2012), 335–358. 147 This might appear to recognise EU legal instruments as Hungarian sources of law and thus subject to the HCC’s review jurisdiction, a matter strongly argued against by Bragyova, ibid., at 351–354.

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treaties were replaced, e.g., with a completely new constitutional charter, that the holding of a referendum might need to be considered to ratify such fundamental change. This argument may be supported by the fact that the 2011 Constitution was put to a parliamentary vote alone and not to a nationwide referendum. Accordingly, the exercise of indirect democracy through the representation of the people—equally an aspect of the democratic principle under the German Constitution as a means to control the pace and extent of deepening European integration—could be said to find an echo in the 2011 Hungarian Constitution. D. National Constitutional Court Acceptance 1. Introduction There has been a relative paucity of case-law from the HCC since accession in 2004148 compared to that of the Polish CT and for that reason reference is guardedly made—where appropriate—to two main pre-accession cases (Dec. 4/1997 (I.22) AB149 and Dec. 30/1998 (VI.25) AB150) from which it is possible to glean some indications of the HCC’s perception of certain aspects of the position and effectiveness of European law in the domestic constitutional system after EU entry.151 2. Supremacy/Priority of Application The issue of supremacy or priority of application of European law was raised in the HCC decision determining its jurisdiction to review a posteriori international treaties. In Dec. 4/1997 (I.22) AB, the HCC indicated its own understanding of the nature of European law and its effect in the internal systems of the Member States. The petitioner in that case had sought a posteriori review of certain provisions of Act XXXII of 1989 on the Constitutional Court which, in part, allegedly prevented constitutional consideration of international treaties promulgated into domestic law. The HCC ruled that, according to s. 1(b) of the 1989 Act, it did have jurisdiction to review the constitutionality of a statute promulgating an international treaty,

148 M. Varju, “On the Constitutional Issues of EU Membership and the Interplay between the ECHR and Domestic Constitutional Law Concerning the Right of Assembly and Freedom of Expression” (2009) 15 EPL 295, at 297–301; L. Blutman & N. Chronowski, “Az Alkotmánybíróság és a közösségi jog: alkotmányjogi paradoxon csapdájában (I.) és (II.)” 2007/2 Európai Jog 3 and 2007/4 Európai Jog 14, respectively; and M. Varju & F. Fazekas, “The reception of European Union law in Hungary: the Constitutional Court and the Hungarian judiciary” (2011) 48 CML Rev. 1945, at 1946–1963. 149 ABH, 1997, 41. 150 ABH 1998, 220. 151 N. Chronowski & Z. Nemessányi, “Európai Bíróság – Alkotmánybíróság: felületi feszültség” 2004/3 Európai Jog 19, at 25–28.

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and this included examination of such treaty. The constitutional requirement for this examination derived from Constitution Arts. 7(1) and 32/A. In fact, there was no constitutional basis to deal with a law promulgating a treaty differently from any other legal rule when it came to constitutional review. Since it was derived from the Constitution that a posteriori review was to cover all kinds of legal rule, this universality could not be restricted even by statute. In this way the examination of international treaties, after they became part of domestic law, fitted into the logic of constitutional review. The important point was the fact that the treaty concerned was the 1991 EC-Hungary Europe Agreement (‘EA’),152 promulgated into domestic law by Act I of 1994.153 In its ruling, the HCC made a number of observations that were in fact obiter dicta since they were not strictly necessary for its decision. It thus set out its understanding of the position of European law in the following terms:154 … concerning the relationship between domestic and international law, in the development of European law, there is a tendency that the dualist-transformation system is replaced by the monist-adoption system. According to the monist-adoption concept, the concluded international treaty constitutes a component of national law without further transformation that is it is applicable directly and enjoys supremacy over domestic law. This system is required by European integration and, for this reason, even those members of the EU which still follow the transformation system (e.g., Germany, one of the founding members, Italy, and the Scandinavian countries which subsequently joined the European Union) apply the law of the European Union directly, without transformation, and they ensure superiority over national law with the exception of the Constitution. As a result of this, the constitutional courts exercise their right to constitutional examination of international treaties (international law) and the decisions of international organisations – due to the adoption system – automatically becoming part of the domestic law. [Emphasis supplied.]

In support of its arguments, the HCC relied155 on the case-law of its German counterpart (including the FCC’s cases on the EEC Treaty156 and the Maastricht Treaty157) which, at the time, caused a measure of surprise and consternation. The mention of the FCC’s cause célèbre in Maastricht was regarded with particular concern, given what may be considered as the distinctly Euro-sceptic flavour of that judgment.158 152 Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Hungary, of the other part: OJ 1993 L347/1. It came into force on 1 February 1994 after obtaining all the necessary ratifications. 153 Act I of 1994 on the promulgation of the Europe Agreement between the Republic of Hungary and the EC and its Member States: MK 1994/1. 154 ABH 1997, 41, at 51. 155 ABH 1997, 41, at 52. 156 Steinike & Weinlig, 25 Juli 1979, 2 BvL 6/77: BVerfGE 52, 187, at 199. 157 Maastricht, 12 Oktober 1993, 2 BvR 2134 und 2159/92: BVerfGE 89, 155; [1994] 1 CMLR 57. 158 I. Vörös, “Az Európai Megállapodás alkalmazása a magyar jogrendszerben” [“The application of the Europe Agreement in the Hungarian legal system”] (1997) LII Jogtudományi Közlöny 229–237;

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Ficsor noted159 that the HCC had felt it necessary to summarise (clearly as an example to be followed) how the national constitutional courts addressed the question of the evolution of the EU’s legal order. Considering the prevalent past influence, it was not at all surprising that Dec. 4/1997 (I.22) AB referred mainly to the FCC case-law. It was apparent from this Part of the Decision that the HCC considered European law as international law: it became part of the national legal system without separately incorporating it into domestic law (‘monist-adoption’), it was directly applicable and had priority over domestic law. Kukorelli & Papp subsequently maintained that the basis of supremacy of European law would have to be based on the 1990 Constitution itself.160 Ultimately, then, the extent of supremacy of European law over the Constitution thus depended on the content of the accession clause which was not drafted to allow for the express supremacy of European law.161 In its previous judgment on the constitutionality of the EA, Dec. 30/1998 (VI.25) AB,162 the HCC had not ruled out the supremacy/priority of European law after accession but had merely stated that:163 “Therefore … without an express authorisation by the Constitution, the Parliament may not, in an international treaty, constitutionally extend beyond the principle of territoriality in a field of law covered by the exclusive jurisdiction of the sovereign state.”164 However, it did recognise the implications for priority of application of European law by expressly referring to the principle of direct applicability as understood in the Union:165 B. Berke, “A Nemzetközi szerződések alkotmányossági vizsgálatának megalapozásához [On the basis of constitutional review of international treaties]” (1997) XLIV Magyar Jog 449–461; M. Ficsor “Megjegzések az európai közösségi jog és a nemzeti alkotmány viszonyáról I., II. [“Comments on the relationship between EC law and the National Constitution: Parts I and II]” (1997) XLIV Magyar Jog 462–473; and 526–536, respectively. 159 Ficsor (1997), at 462–464; and at 527–529. Cf. Berke who regarded Dec. 4/1997 (I.22) AB and its Reasoning as providing no real indication of the future characteristics of the relationship of the HCC with the EC legal system: this would be a question left until after accession. He considered it as inexpedient to interpret other statements as domestic doctrine related to this issue, particularly if such statements arose as a summary of the practice of other constitutional courts and in relation to the examination of another subject, namely the possibility of a posteriori examination for constitutionality of international treaties: Berke (1997), at 457–458. 160 Kukorelli & Papp (2002), at 4. 161 Ficsor (2002). 162 ABH 1998, 220. 163 ABH 1998, 220, at 232. 164 Sajó had argued that the Europe clause read with the EC and EU Treaties as well as the 2003 Accession Treaty was such an express provision of constitutional authorisation although the wording of Constitution Art. 2/A was not particularly clear. But when read with the 2003 Accession Treaty, Art. 1(3), matters became clearer since this paragraph expressly recognised the provisions concerning the rights and obligations of the Member States and the powers and jurisdictions of the EU institutions as set out in the founding Treaties. Nevertheless, he warned, the Accession Treaty would remain subject to domestic constitutional review under the Constitution and the 1989 Constitutional Court Act: A. Sajó, “Learning Co-operative Constitutionalism the Hard Way: the Hungarian Constitutional Court Shying Away from EU Supremacy?” 2004 ZSE 351, at 354–355. 165 ABH 1998, 220, at 226–227.

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chapter four In relations between the [Union] and its Member States, the rules of European law as adopted become a part of the law to be enforced in the Member States without the need to transform European law into domestic law (by way of confirmation, incorporation, transformation or promulgation by the Member States). Direct applicability is a feature characteristic of the presentation of European law within the Member States as compared to the way international treaties become a part of domestic law in general (through confirmation and promulgation, or confirmation and incorporation, transformation, promulgation, etc.).

Post-accession, the HCC recognised the autonomous character of the EU legal order and its laws in Dec. 1053/E/2005166 in which it indicated (Bihari, P., dissenting) that—despite their treaty origins—the founding and amending Treaties of the EU were not to be treated as international treaties,167 an implicit acceptance of their sui generis nature. Moreover, since the 2003 Accession Treaty was an amending treaty, it was itself unlikely to be the subject of constitutional review. In Kovács, J.’s concurring Opinion168 (Bagi, J., concurring), he noted that:169 Also taking into account the sui generis nature of European law, the founding and amending European Treaties (“[primary or] original law”) and the Regulations, Directives, other norms and acts (“secondary or derived law”) form part of the uniform (therefore to be treated in a uniform manner) European law. Despite their treaty origins, the norms of European law are much closer to domestic law than to international law; this can be demonstrated especially as regards their enforcement based on primacy and direct effect.

Kovács, J.’s words read like a textbook reiteration of ECJ constitutional thinking and practice over the past 50 years. The position of the HCC in Dec. 1053/E/2005 AB was expressly repeated and built on by the HCC in Dec. 72/2006 (XII.15) AB170 when it additionally stated:171 The Constitutional Court has established in Decision 1053/E/2005 AB that the founding and amending treaties of the European [Union] are not considered treaties under international law in respect of establishing the competence of the Constitutional Court (ABK 2006, 498, at 500), and these treaties – being primary sources of the

166 Dec. 1053/E/2005 AB: ABH 2006, 1824. See E. Várnay, “Az Alkotmánybíróság és az Európai Unió joga” (2007) LXII Jogtudományi Közlöny 423, at 434–434; E. Várnay & A.F. Tatham, A New Step on the Long Way – How to Find the Proper Place for Community Law in the Hungarian Legal Order?” (2006) 3 Miskolc Jo. Intl. L 76, at 80–84; and F. Fazekas, “A közösségi jog elsőbbségét érintő magyar alkotmánybírósági határozatok” (2007) XI Collega 207, at 210–212. 167 That EU law is not international law was further confirmed in Dec. 87/2008 (VI.18) AB: ABH 2008, 707. 168 L. Trócsányi & L. Csink, “Alkotmány v. közösségi jog: az Alkotmánybíróság helye az Európai Unióban” (2008) LXIII Jogtudományi Közlöny 63, at 65. 169 Dec. 1053/E/2005 AB: ABH 2006, 1824, at 1828. 170 Dec. 72/2006 (XII.15) AB: ABH 2006, 819. Várnay (2007), at 434–436; Fazekas (2007), at 210–212; and A. Raisz, “Confronted with direct applicability of a directive: the Hungarian Constitutional Court before challenges” (2007) 4 Miskloc Jo. Intl. L 113–127. 171 ABH 2006, 819, at 861.

the hungarian constitutional court163 law – and the Directive – being a secondary source of the law – are as European law part of internal law, as Hungary has been a Member State of the European Union since 1 May 2004. With regard to the competence of the Constitutional Court, European law is not considered international law as specified in Art. 7(1) of the Constitution.

As regards the position of European law in Hungary, the HCC also ruled in Dec. 1053/E/2005 AB that:172 “the so-called accession clause in Art. 2/A of the Constitu tion determines the conditions and the framework of the Republic of Hungary participating in the European Union as a Member State, as well as the structural position of European law in the Hungarian hierarchy of the sources of law.” In his concurring Opinion173 to Dec. 72/2006 (XII.15) AB, Kovács, J. (Kiss, J., concurring) noted that the context of the case in hand reflected the complexity of the interrelation between the Hungarian and European legal systems and showed the reasonable practical consequences primarily for the Hungarian courts as they formed an integral part of the judicial system applying European law.174 Kovács, J. subsequently appeared to adhere to the priority of application thesis as expounded by the German FCC and endorsed by the Polish CT. Referring back to Dec. 1053/E/2005 AB, he observed that the HCC interpreted the “structural position in the hierarchy of sources of law” concretising it in respect of the given EC/EU norm and stated:175 “A Directive—when it falls into the exceptional category of direct effect—enjoys finally the same position as a decree directly applicable ex lege, i.e. it is a source of law of statutory level under the level of the Constitution, but as lex specialis it has primacy over domestic law in case of conflicts.” A recognition of the priority of application, it can be strongly argued, has accordingly been afforded by Kovács, J. Turning to another point, the use of European law as a yardstick for the constitutionality (or absence thereof) of executive/legislative (in)action has been almost excluded by the HCC. In Dec. 1053/E/2005 AB,176 it determined that the accession clause in 1990 Constitution Art. 2/A defined the conditions and framework in the participation of Hungary in the Union as well as the position of European law in the Hungarian legal order but stressed that no specific legislative duty flowed from this provision. Thus an applicant could not claim before the HCC that the Hungarian State had breached Art. 2/A by having failed to pass the relevant implementing statute/legal norm under Hungarian law to incorporate a European Directive into the national system. Such was the position followed by the HCC in Dec. 66/2006 (XI.29) AB177 where the petitioners claimed that a provision of Act LIX of 2006 on Supertaxes and 172 Dec. 1053/E/2005 AB: ABH 2006, 1824, at 1829. 173 Trócsányi & Csink (2008), at 65. 174 Dec. 72/2006 (XII.15) AB: ABH 2006, 819, at 863. 175 ABH 2006, 819, at 865–866. 176 Dec. 1053/E/2005 AB: ABH 2006, 1824, at 1827. 177 ABH 2006, 725; and also Dec. 9/2007 (III.7) AB: ABH 2007, 177. Trócsányi & Csink (2008), at 67.

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Contributions for the Improvement of the Balance of Public Finances violated Directive 77/388/EEC (‘the Sixth VAT Directive’)178 which, they contended, prohibited the introduction of new turnover-type taxes. While tersely observing that it was beyond its competence whether or not the Act infringed the Directive, the HCC effectively rendered European law a non-constitutional standard on which to base a review of internal law: as a result, breach of European law was to be resolved by the ordinary courts as the proper fora with the HCC enjoying only limited review competence.179 It reiterated this point in Dec. 61/B/2005 AB180 when the HCC was again asked to examine a petition according to which certain provisions of national law were claimed as contrary to European law and thus violated 1990 Constitution Art. 2/A. The HCC observed:181 The powers of the Constitutional Court are determined by s. 1 of the Constitutional Court Act. This provision does not contain any powers that could give authority to the Constitutional Court to assess whether a legal provision does or does not comply with European legislation. It is up to the European [Union’s] institutions and ultimately to the ECJ to decide this. On the basis of Art. 2/A of the Constitution, European law should be applied equally to law created by the Hungarian legislature. On this basis, the Constitutional Court refused the motion in this regard.

In turning the emphasis away from its constitutional jurisdiction, the HCC was implicitly recognising the ECJ’s requirements in Simmenthal.182 By ‘de-constitutionalising’ the conflict between European and national (statutory) law, the HCC was pushing responsibility back onto the shoulders of the ordinary courts to disapply national law where it came into conflict with European law, and not to burden it with references for constitutional review. The HCC thus did not countenance the attempts of petitioners to ‘constitutionalise’ the conflict between European and national law, by means of 1990 Constitution Art. 2/A, thereby interpreting the scope of its jurisdiction strictly in accordance with the letter of the 1989 Constitutional Court Act. Confirmation of the HCC’s refusal, on the grounds of lack of competence, to examine petitions claiming incompatibility of domestic legal rules with the (1990) Constitution were made more recently in Dec. 29/2011 (IV.7) AB183 and Dec. 61/2011 (VII.13) AB.184

178 Sixth Council Directive 77/388/EEC on the harmonization of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment: OJ 1977 L145/1. 179 Kovács, J. in Dec. 1053/E/2005 AB: ABH 2006, 1824, at 1829–1830. 180 ABH 2008, 2201. 181 ABH 2008, 2201, at 2207. 182 Case 106/77 Amministrazione delle Finanze dello Stato v. Simmenthal SpA [1978] ECR 629. 183 Dec. 29/2011 (IV.7) AB: ABH 2011, 181. 184 Dec. 61/2011 (VII.13) AB: ABH 2011, 290.

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In this way, the HCC appears not to follow the FCC but rather to echo the approach of the Austrian Constitutional Court and the Spanish Constitutional Tribunal in this area. The latter institution, through its earlier decision-making, had previously declined to review European law vis-à-vis national law on the grounds that European law was, in its own words, ‘infra-constitutional’185 and thus beyond its jurisdiction. The Austrian Court has held186 that violations of European law in general do not constitute infringements of constitutionally guaranteed rights and that therefore, generally speaking, it is not required to decide on the question as to whether or not an administrative act is in line with European law. Consequently, the Austrian Court does not rule on the conformity of a national law with European law.187 3. Direct Effect Already in the previous section, it has been noted that the HCC stated in Dec. 4/1997 (I.22) AB188 that European law was to be applied directly over inconsistent national law (except the Constitution). In Dec. 30/1998 (VI.28) AB,189 the HCC set out and clarified the concepts of direct effect and direct applicability,190 broadly in line with the distinction made in European law (particularly, though nowadays not exclusively, among legal academics).191 The HCC noted, again making its statement obiter since it was not necessary for its decision in that case:192 “Under direct effect … it is to be understood that a concrete provision of the international treaty generates a substantive right or obligation for [a natural or legal person] enforceable before the court or some other law-applying authority.”

185 The Spanish Constitutional Tribunal ruled (Trib. Const. 14 febrero 1991, STC n. 28/1991: BOE n. 64, 15 marzo 1991; REDI 1991, 172) that a possible violation of EC law by subsequently enacted national or regional legislation or norms could not convert into a constitutional dispute something that was essentially a conflict of “infra-constitutional” norms, which was to be resolved by the ordinary courts. The conflict between a European norm and a domestic norm lacked constitutional relevance and therefore the Tribunal lacked jurisdiction to decide the petition before it. The principle of supremacy required national courts to be solely concerned with securing the effectiveness of European law. This ruling has been subject to criticism both from the viewpoint of constitutional and of European law: P. Pérez Tremps, Constitución española y Comunidad europea, Civitas, Madrid (1994), at 145–146; D.J. Liñán Nogueras & J. Roldán Barbero, “The Judicial Application of Community Law in Spain” (1993) 30 CML Rev. 1135, at 1140. 186 VfGH B 877/96, 26 Juni 1997, VfSlg. 14886. 187 VfGH G 2/97, 24 Juni 1998, VfSlg. 15215. 188 ABH 1997, 41. 189 ABH 1998, 220. 190 Ibid., at 226–227. 191 T. Winter, “Direct Applicability and Direct Effects” (1972) 9 CML Rev. 425; P. Pescatore, “The doctrine of ‘Direct Effect’: An Infant Disease of Community Law” (1983) 8 EL Rev. 155; S. Prechal, “Does Direct Effect Still Matter?” (2000) 37 CML Rev. 1047; and J. Steiner, “Direct Applicability in EEC law – A Chameleon Concept” (1982) 98 LQR 229. 192 ABH 1998, 220, at 226.

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The reference to this term, before accession, opportunely provided constitutional recognition of the principle of direct effect. Such express reference has not, however, been made by the HCC since accession. Implied acceptance of direct effect might be argued to be found in Dec. 942/B/2001 AB193 which concerned the issue of freedom of establishment and freedom to provide services for lawyers. The HCC referred to the relevant reasoning of a 2003 Act allowing for lawyers of other EU Member States to practise in Hungary from accession and noted that Arts. 49 and 50 EC (now Arts. 56 and 57 TFEU) and the two Directives based on them dealing with the freedom to provide services and establishment of lawyers194—“by facilitating the effective exercise of these rights gives the basis for non-discriminatory treatment of Member State citizens; ‘the European [Union] lawyers’ once they fulfil other conditions can practise as lawyers.” Since these Articles enjoyed direct effect and were expressly recognised by the HCC to provide rights for EU lawyers, it came as no surprise that a few lines later (in the context of considering the exercise of the legal profession as not being one of the nature of a public body activity) that the HCC also made express reference to Reyners,195 the case in which the ECJ had decided that the right to establishment under then Art. 52 EEC (now Art. 49 TFEU) enjoyed direct effect. Nevertheless, the HCC did not make any express statement on direct effect in this case. In Dec. 72/2006 (XII.15) AB,196 the matter of direct effect was however extensively discussed by Kovács, J. (Kiss, J. concurring) in his own concurring Opinion but was not touched upon the rest of the bench in the actual Decision. The case concerned a number of petitions before the HCC related to the employment and the remuneration of employees in healthcare, in particular on working time. One of the petitioners claimed that the legislature had failed to ensure that the relevant national rules had complied with the terms of the Working Time Directive, Directive 93/104/EC:197 this therefore amounted to an unconstitutional omission of the duty to legislate. However, since the petitioner had made the claim on the basis of 1990 Constitution Art. 2(1) alone, the petition was rejected since the HCC had previously ruled in Dec. 1053/E/2005 AB198 that, in the absence of any unconstitutionality of substantive law, no unconstitutional omission of legislative duty could be established merely on the basis of Art. 2(1).

193 ABH 2004, 1561. 194 ABH 2004, 1561, at 1573. 195 Case 2/74 Reyners v. Belgian State [1974] ECR 631. 196 Dec. 72/2006 (XII.15) AB: ABH 2006, 819. P. Kovács, “Vol (communautaire) au-dessus d’un nid de coucou (ou le calcul du temps de travail des médecins et la jurisprudence de la Cour constitutionnelle de Hongrie)” 2007/3 RFDC 667–671. 197 Directive 93/104/EC concerning certain aspects of the organisation of working time: OJ 1993 L307/18. 198 Dec. 1053/E/2005 AB: ABH 2006, 1824, at 1827–1828.

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Kovács, J. attempted to explain further the HCC’s Decision in his concurring Opinion. He noted199 that the case represented aspects of direct effect of particular European norms and later indicated200 that the ECJ had declared certain provisions of the relevant Directive to be of direct effect.201 He then turned to determine “the structural position in the hierarchy of sources of law” of such a Directive and, as noted earlier, stated:202 “A Directive—when it falls into the exceptional category of direct effect—enjoys finally the same position as a decree directly applicable ex lege, i.e. it is a source of law of statutory level under the level of the Constitution, but as lex specialis it has primacy over domestic law in case of conflicts.” In his Opinion,203 the problematic elements of the challenged national rules were not applicable at all in accordance with 1990 Constitution Art. 2/A, and thus the problem to be solved by the HCC was simplified. Consequently, the HCC could even by-pass the review on the merits of the unconstitutionality of the challenged national rules, since according to the rules of direct effect consistently followed, those national provisions could not exercise any legal effect on the directly effective norms of European law, with even their mere existence being questionable. The constitutional review was only to be exercised in respect of the parts not affected by the directly effective norms of European law. This way, Kovács, J. held that the constitutional review of the relevant national decree could have been spared, as it was in fact not applicable—without the violation of the obligations under European law—due to the clearly stated direct effect of provisions of the Directive. In other words, Kovács, J. enjoined the HCC (and other judicial organs) to follow the ECJ case-law on direct effect and disapply any national provisions (except the Constitution) in conflict with a directly effective provision of European law. The HCC’s hitherto oblique references to direct effect are in marked contrast to the approach of the FCC in Kloppenburg204 in which direct effect was expressly recognised.205 The need for the HCC explicitly to recognise the principle of direct effect of European law, post accession, may be less compelling than at first considered. If one takes the previous section as the fundamental basis of the HCC’s general approach to EU law matters, then ‘deconstitutionalising’ these matters pushes the burden of the enforcement of European law rights onto the ordinary courts. Since the latter remain the main forum for exercising European law rights at the 199 Dec. 72/2006 (XII.15) AB: ABH 2006, 819, at 863. 200 ABH 2006, 819, at 864–865. 201 Case C-14/04 Abdelkader Dellas v. Premier ministre [2005] ECR I-10253; Case C-484/04 Commission v. United Kingdom [2006] ECR I-7471; Joined Cases C-131/04 and C-257/04 C.D. RobinsonSteele v. R.D. Retail Services Ltd. [2006] ECR I-2531; and Joined Cases C-397/01 to C-403/01 Pfeiffer v. Deutsches Rotes Kreuz, Kreisverband Waldshut eV [2004] ECR I-8835. 202 ABH 2006, 819, at 865. 203 Ibid., at 866. 204 Kloppenburg, 8 April 1987, 2 BvR 687/85: BVerfGE 75, 223; [1988] 3 CMLR 1. 205 See above at Chapter Three, point D.3.

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national level, then the same courts must not only recognise the priority of application of European law but also its direct effect. Such proposition is actually underlined by the practice, e.g., of the Supreme Court of Hungary which (perhaps taking its cue from the HCC’s avoidance or deconstitutionalisation of the issues involved) has expressly recognised the direct effect of European law in its rulings and has accordingly acted to protect before it rights derived from European law.206 Consequently, the ultimate result of the HCC’s post-accession prevarication on direct effect and its singular resolve not to advance a Kloppenburg-style formulation of the recognition of such principle in Hungarian law has, strangely enough, not led to a legal lacuna. In fact, de facto, the Kloppenburg approach has been followed since the Supreme Court and other Hungarian courts apply the direct effect principle in cases before them without any seeming difficulty.207 4. References to the European Court of Justice So far, the HCC has given little indication of its position in making references to the ECJ208 and it has been argued that the HCC is not a ‘national court or tribunal’ within the meaning of Art. 267 TFEU (ex-Art. 234 EC).209 In Dec. 61/B/2005 AB,210 the HCC proceeded to examine the nature of the preliminary ruling procedure. It noted that the adoption of detailed rules regarding those under Art. 267 TFEU (ex-Art. 234 EC) were left to each Member State, with one caveat, viz., that:211 “national legislation cannot restrict the Article 234 EC procedure, as it had been provided for by the European Court of Justice in Case 166/73 206 Case number: Kfv.III.37.043/2007/4. In that case, the Supreme Court found that the provisions of s. 17(2)(a) of Act XXV of 2000 on Chemical Safety were contrary to the provisions of Art. 10, para. 2.3.4 of Directive 1999/45/EC concerning the approximation of the laws, regulations and administrative provisions of the Member States relating to the classification, packaging and labelling of dangerous preparations (OJ 1999 L200/1). According to the Supreme Court, ECJ case-law entitled the citizens of EU Member States to invoke directly Directives against their own countries in cases when the Directive in question was not or not completely implemented into national legislation. The Directive applicable in the present case met the required conditions, according to which it had to be clear, precise and unconditional; in addition the Directive did not give any further discretion to the national legislature in the matter. As a result, the Supreme Court found that the implementation of the Directive into domestic law had been incorrect and its provisions were directly effective. For further examples of Hungarian judicial openness to EU law, see A.F. Tatham, “The Impact of Training and Language Competence on Judicial Application of EU Law in Hungary” (2012) 18 ELJ 577, at 588–591. 207 Varju & Fazekas (2011), at 1964–1970. 208 For the possibility of the HCC making such references to the ECJ, see A. Grád, “A hazai igazságszolgáltatás felkészülése az európai uniós tagságra – avagy rövidesen kiderül: amit hallunk vészharang-e, vagy csak az utolsó kört jelző csengő” 2003/4 Európai Jog 37, at 39–40. On references to the ECJ from Hungarian courts, see K. Gombos, Bírói jogvédelem az Európai Unióban [Judicial legal protection in the European Union], CompLex, Budapest (2009), at 145–151 and at 155–157. 209 L. Blutman, Az előzetes döntéshozatal [The Preliminary Ruling], KJK-KERSZÖV, Budapest (2003), point 6.7.3.2, at 233. 210 ABH 2008, 2201. 211 Ibid., at 2206.

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Rheinmühlen-Düsseldorf v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1974] ECR 33.” The HCC recognised the independence of the national judge in deciding on the need to make a reference:212 It is at the discretion of the national courts to determine whether the preliminary ruling procedure is necessary or not; the national court should consider whether it is essential to refer an issue to the European Court of Justice in order to resolve a particular case [see e.g., Case 13/68 Salgoil v. Ministero del Commercio con l’Estero [1968] ECR 661], and also, how relevant is the question to be posed to the case. This process is designed to promote uniform interpretation of European law.

The HCC then noted its powers of review under s. 1 of the 1989 Constitutional Court Act213 and observed that this provision did not contain any powers that could give it competence to assess whether or not a national legal provision complied with European legislation:214 “It is up to the EU’s institutions and ultimately to the European Court to decide this.” This wording appears to be rather strange, even from the EU law perspective, according to which under Art. 19(1) and (3) TEU the ECJ is charged with interpreting and assessing the validity of European law and not assessing the validity of national law, which remains within the domain of the national judiciary. Granted—as seen in the previous sections—this statement must be viewed in the context of the HCC’s ‘deconstitutionalising’ approach to EU law, its wording is nevertheless unfortunate. Clearly it intends to emphasise the HCC’s own (partial) understanding of the relationship of co-operation between national (constitutional) courts and the ECJ; the HCC was not challenging or undermining the ECJ’s pivotal role in the EU legal system and was thus taking the FCC’s approach in Maastricht215 and later in Lisbon216 seriously, by recognising the function of the preliminary ruling procedure and the need to maintain an openness to European law. It is evident then that the HCC should have used clearer wording in its statement; support for this contention can be found within the case as a whole, when the HCC unambiguously recognises the respective roles of national courts and the ECJ in the use of the Art. 267 TFEU procedure:217 [T]he role of the ECJ in preliminary ruling procedures is to interpret European law and to decide about its applicability but it is not its task to apply European law to the actual facts of the case. This falls within the jurisdiction of the referring national court. The Court has stated several times that it has no jurisdiction in cases giving rise 212 Ibid., at 2206. 213 See above at Chapter Four, points A.1.-2. 214 ABH 2008, 2201, at 2207. 215 Maastricht, 12 Oktober 1993, 2 BvR 2134 und 2159/92: BVerfGE 89, 155; [1994] 1 CMLR 57: see above at Chapter Three, point D.4. 216 Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267; [2010] 3 CMLR 13, 276: see above at Chapter Three, point D.4. 217 Dec. 61/B/2005 AB: ABH 2008, 2201, at 2210.

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Consequently, taking the case in its entirety, the HCC has accepted the idea of cooperation between the domestic courts and the ECJ, in order to determine together whether or not a national legal act infringed European law, within the reference procedure. In an earlier ruling, Dec. 1053/E/2005 AB, Kovács, J. (Bagi, J. concurring) had provided some subtle remarks which implied a preparedness to consider the appropriate use of preliminary rulings:218 “As in the European integration, it is for the ECJ to give authoritative interpretation to European rules, the HCC would exceed its natural competences if it examined whether it was possible to give such interpretation to European law obligations that a decision over a breach of European law committed by the State should fall within the competence of the Constitu tional Court.” This approach has been voiced more recently in Dec. 142/2010 (VII.14) AB219 by Kiss, J. in his dissent. In that case, the HCC had declared itself able to review the provisions of a national statute which had introduced a new regime of agricultural subsidies based on the relevant EU Regulation. According to the HCC, the Regulation had left it to the Member States to decide on the criteria for granting subsidies and for determining the base year to be used, an approach redolent of the FCC.220 In relation to Art. 267 TFEU, Kiss, J. noted that the HCC had engaged itself in the interpretation of EU law and indirectly had declared its jurisdiction to review EU secondary legislation that contained unambiguous rules (and not merely legislation that contained vague rules). In its interpretation, the HCC had not referred a question to the ECJ in order to determine whether or not the base year ought to be a year ‘in the past.’ In his view, the HCC had thereby implicitly accepted the status of ‘a court or tribunal’ under Art. 267 TFEU and had applied the acte clair doctrine from CILFIT.221 The HCC, he contended, could only have applied this doctrine after having reviewed the practice of the ECJ and national courts of the Member

218 Dec. 1053/E/2005 AB: ABH 2006, 1824, at 1830. 219 Dec. 142/2010 (VII.14) AB: ABH 2010, 668, at 693–697. 220 See above at Chapter Three, point E.3. 221 Case 283/81 Srl CILFIT v. Ministero della Sanità [1982] ECR 3415.

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States on this issue: however, the HCC had clearly failed to do so in this case. It might be arguable from the preceding paragraphs that, for Kovács and Kiss, JJ., it is at least open for the HCC to consider making a reference to the ECJ. Were, however, the HCC to follow the lead of its German counterpart, the jurisdiction to make a reference would be accepted but would ultimately not be exercised for a variety of reasons.222 a. Lawful Judge One of the issues that has also not been properly addressed so far223 is whether a decision of a Hungarian court refusing to make a reference to the ECJ would amount—according to Hungarian (constitutional) law—to a breach of a fundamental right (right to a remedy) and, if so, whether anyone, whose rights had therefore been breached, could subsequently bring proceedings before the HCC (right to a lawful judge). In the Hungarian constitutional system, the right to a lawful judge (törvényes bíróhoz való jog) is derived from the requirement of equality before the law (1990 Constitution Art. 70/A(1),224 and now 2011 Constitution Art. XV(1)) and it guarantees that a case before the national courts will be dealt with according to previously prescribed procedural rules (concerning competence of courts, judges, etc.).225 By way of contrast, the right to a remedy is more substantial in character. Formerly contained in 1990 Constitution Art. 57(5), it is now to be found in 2011 Constitution Art. XXVIII(7) which provides: “Every person shall have the right to seek legal remedy against any court, administrative or other official decision which violates his or her rights or lawful interests.” The right to a remedy thus includes not only judicial remedies but also administrative remedies against decisions of the administration or other authorities. But the Hungarian legal system lacks a coherent constitutional model for judicial remedies, so the realisation of the constitutional requirements remains a task for the procedural rules: as these latter are often amended, the system of remedies is very complicated. In short, the definition of the substantive character of the right to a (judicial) remedy is assisted not by the Constitution but rather by procedural rules. 222 See above at Chapter Three, point D.4. 223 2001 Government Paper (at 38) only deals with it to a certain extent: “Whenever a court applies European law, and all possibilities of appeal are over, the interested party could turn to the HCC on the basis of a violation of his constitutional rights. The HCC here could retroactively prohibit the application of that rule in the instant case, but it should abstain from invalidating that rule for the future. But under the Constitution, that is precisely what it ought to do.” 224 As interpreted in Dec. 9/1990 (IV.25) AB: ABH 1990, 46; and Dec. 61/1991 (XI.20) AB: ABH 1992, 280. 225 J. Sári & B. Somody, Alapjogok: Alkotmányan II, Osiris Kiadó Budapest (2008), at 370–375; and G. Halmai, “Az alkotmány mint norma a bírói jogalkalmazásban” 1998/3 Fundamentum 77–81.

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It will be recalled that, under the 1989 Constitutional Court Act, s. 48, an individual could bring a constitutional complaint to protect her/his rights. This was not a ‘real’ constitutional complaint as the mere infringement of a fundamental right did not serve as a basis for proceedings before the HCC: the breach had to be the result of the application of an unconstitutional legal rule; consequently the protection of fundamental rights was linked to the norm control. The constitutional complaint was a concrete norm control as the actual case was taken into account, and it was also a remedy of last resort.226 Its result could be the annulment of the norm or a decision about its inapplicability in the actual case.227 The situation after accession remained unsettled until the entry into force of the 2011 Constitution and 2011 Constitutional Court Act, with the introduction of the German model of constitutional complaint.228 In these new circumstances, mere infringement of a constitutional right can now give rise to a complaint and may therefore allow the HCC to develop a domestic equivalent to the principle of lawful judge. b. ECJ Ruling Priority As the background to the HCC’s understanding of the priority of ECJ rulings, it has been argued229 that since 2011 Constitution Art. E(2) and (3) (formerly 1990 Constitution Art. 2/A) provides that Hungary may exercise certain sovereign powers through European institutions and that the ECJ is such an institution, this transfer of powers extends to decisions of the ECJ in the same way as it extends to acts of the European legislative bodies. As a result, since the 2011 Constitution has expressly approved or allowed such transfer, ECJ decisions cannot be regarded as being incompatible with that Constitution. While this latter contention may certainly be challenged,230 nevertheless it does support the argument that interpretation of European law by the ECJ will be recognised as enjoying priority, even by the HCC. So far the HCC has not made a definite statement on this issue but, in view of the previous contentions in this Chapter, it is likely to follow the example set by its German counterpart. Initially, the implications of Dec. 17/2004 (V.25) AB231 were not so positive. This case concerned the constitutionality of the 2004 Surplus Act, 226 Dec. 57/1991 (XI.8) AB: ABH 1991, 272. 227 While in Germany a citizen can go to the Constitutional Court if the final decision of an authority infringes his fundamental rights and this breach cannot be solved otherwise, this was not possible in Hungary under the 1990 Constitution (though many urged the introduction of the German model). 228 2011 Constitution Art. 24(2)(c) and (d) and 2011 Act, ss. 26–31. 229 Á. Tóth, “A Magyar Alkotmány helyzete az EU-csatlakozás után,” in A. Jakab & P. Takács, A Magyar jogrendszer átalakulása: 1985/1990–2005. Jog, rendszerváltozás, EU-csatlakozás, Gondolat Kiadó and ELTE ÁJK, Budapest (2007), Vol. II, 953, at 957. 230 Even the academic in question noted that there were limitations: Tóth (2007), at 957–958. 231 Dec. 17/2004 (V.25) AB: ABH 2004, 291. Várnay (2007), at 430.

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implementing certain Commission Regulations into the domestic legal system in the lead up to accession. The aim of both the Regulations and the Act was to prevent the accumulation of surplus stocks of agricultural products. The Surplus Act was challenged as being unconstitutional due to its retroactive effect as it would have entered into force on 25 May 2004 while the obligations set out in it came into effect on the date of accession, 1 May 2004. In its Decision—discussed extensively below232—the HCC made reference to similar situations in previous enlargements and to decisions of the ECJ including the Weidacher case,233 the facts of which centred on the Austrian accession on 1 January 1995. The ECJ in that case evaluated a similar scheme to the one in the 2004 Surplus Act and Regulations and found that there was no retroactivity regarding surplus stock generating activities that had occurred before entry into force of the relevant Regulation in Austria but which had happened after the entry into force of that Regulation. The ECJ noted:234 [T]he Commission was specifically empowered to adopt transitional measures in order to bring the rules existing in the new Member States into line with the common organisation of the markets, and that such measures might, in some circumstances, have repercussions on surplus stocks already built up when Regulation No 3108/94 was published, that is, on 20 December 1994.

Clearly, the HCC was cognisant of the ECJ’s ruling in Weidacher but through some judicial ‘sleight of hand’ was able to ignore this ruling in coming to its judgment in Dec. 17/2004 (V.25) AB. Such attitude is necessarily in line with the HCC’s approach to ECJ case-law before accession and should therefore come as no surprise. Nevertheless, this is a post-accession case and the HCC was unable to accept the acte clair doctrine—it did not even try to distinguish itself from the ECJ and merely referred to the fact that it was reviewing Hungarian implementing rules rather than the Regulation itself. Its express acceptance of the acte clair doctrine had to wait until its ruling in the Lisbon case235 which is discussed in the next section.236 More recently, however, it is to the concurring Opinions of Kovács, J. that reference must be had. In Dec. 1053/E/2005 AB,237 the applicant sought constitutional review of certain provisions of the Gambling Act and the Business Advertising Act238 as breaching Arts. 10 and 49 EC (now Art. 4(3) TEU and Art. 56 TFEU, respectively) as well as 1990 Constitution Arts. 2(1) and (2) and 2/A(1) (now 232 See below at Chapter Four, point E.3. 233 Case C-179/00 Weidacher v. Bundesminister für Land- und Forstwirtschaft [2002] ECR I-501. 234 Ibid., at para. 33. 235 Dec. 143/2010 (VII.14) AB: ABH 2010, 698. 236 See below at Chapter Four, point E.4. 237 Dec. 1053/E/2005 AB: ABH 2006, 1824. 238 Act XXXIV of 1991 on Gambling: MK 1991/91; and Act LVIII of 1997 on Business Advertising: MK 1997/59.

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2011 Constitution Arts. B and E). The applicant claimed unconstitutionality primarily due to the failure of the legislator to enact legislation since the rele vant statutory provisions, as to their content, did not comply with the then EC Treaty. Having rejected the petition, Kovács, J. was moved to provide some further guidance with respect to European law and the jurisdiction of the ECJ. He stated:239 In the present case, the applicant claimed omission in relation to a sui generis international treaty, the EC Treaty, many elements of which have direct effect in Hungary. Given that the authoritative interpretation and application of European law is the competence of the ECJ, it can be theoretically stated that only the direct endangerment of a constitutional right can establish a right to examine whether the legislator breached its duties deriving from [primary] or secondary law. As in European integration, it is for the ECJ to give authoritative interpretation to European rules, the Constitutional Court would exceed its natural competences if it examined whether it was possible to give such interpretation to European law obligations that a decision over a breach of European law committed by the State should fall within the competence of the Constitutional Court.

Kovács, J. clearly understood not only the unique ultimate interpretative authority of the ECJ but also the priority of its rulings. Again, in Dec. 72/2006 (XII.15) AB,240 Kovács, J. (Kiss, J. concurring) expanded on his previous position in his own concurring Opinion. The case, it will be recalled, concerned certain questions related to the employment, remuneration and working time/overtime of healthcare employees. The HCC rejected the petition seeking to examine the conflict with an international treaty of certain domestic legal provisions since, as previously decided, European law was not international law. Kovács, J. stated:241 In my opinion, the contexts of the present case clearly show the reasonable practical consequences primarily for the Hungarian courts as they form an integral part of the judicial system applying European law. All the above are to be interpreted with due account to the fact that the final forum of settling the debates about the implementation of obligations under European integration is the institutional system of the European Union, and in respect of legal debates ECJ rather than the Constitutional Court is to be addressed.

He then continued by expounding a series of ECJ cases242 which had already interpreted the relevant Directive in the present case (Directive 93/104/EC243) and had

239 Dec. 1053/E/2005 AB: ABH 2006, 1824, at 1830. 240 Dec. 72/2006 (XII.15) AB: ABH 2006, 819. 241 Ibid., at 863. 242 Case C-14/04 Abdelkader Dellas v. Premier ministre [2005] ECR I-10253; Case C-484/04 Commission v. United Kingdom [2006] ECR I-7471; and Joined Cases C-131/04 and C-257/04 C.D. Robinson-Steele v. R.D. Retail Services Ltd. [2006] ECR I-2531. 243 Directive 93/104/EC concerning certain aspects of the organisation of working time: OJ 1993 L307/18.

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latterly declared certain provisions to be of direct effect.244 Evidently, if Kovács, J. were to represent a majority of his colleagues on the bench then his espoused views are redolent of acceptance of the priority of ECJ rulings. Once again, the HCC has not expressly followed the FCC model as exemplified in Kloppenburg245 as regards national constitutional judicial recognition of the priority of ECJ rulings but in two further cases, Dec. 61/B/2005 AB246 and Dec. 485/E/2003 AB,247 the HCC as a bench has essentially accepted such priority by implication. In Dec. 61/B/2005, discussed earlier,248 the HCC clearly accepted the ECJ’s interpretation of Art. 267 TFEU (ex-Art. 234 EC), viz., that: (i) national legislation could not restrict the preliminary reference procedure as determined in Rheinmühlen Düsseldorf;249 and (ii) in considering whether or not to make a reference, the national court has to consider whether it was essential to refer an issue in order to resolve a particular case, as set out in Salgoil.250 Moreover, it subsequently added:251 When submitting a reference for preliminary ruling, it is for the national court to inform the ECJ about every fact and national legislation which are of relevance to the interpretation of European law during the preliminary ruling procedure. According to the settled case-law of the ECJ, it falls within the competence of the referring court how the national court collects the necessary facts and national laws which are important for answering the question (see, e.g., Case 244/78 Union Laitière Normande v. French Dairy Farmers Ltd. [1979] ECR 2663; Joined Cases 36 and 71/80 Irish Creamery Milk Suppliers Assn. v. Ireland [1981] ECR 735). In cases referred to the ECJ, the knowledge of the relevant facts and related national laws is necessary for the interpretation of European law giving a genuine answer which is of use to the national court’s decision on the case (see Case C-83/91 Meilicke v. ADV/ORGA F.A. Meyer AG [1992] ECR I-4871).

Dec. 485/E/2003 AB252 concerned the issue of whether or not under EU law protection afforded to wild birds meant that greatly different rules should be applied in the case of farmed species or species born in captivity. The HCC referred253 to the ECJ in Hugo Clemens254 (the latter itself, as the HCC noted, citing to its earlier 244 Joined Cases C-397/01 to C-403/01 Pfeiffer v. Deutsches Rotes Kreuz, Kreisverband Waldshut eV [2004] ECR I-8835. 245 Kloppenburg, 8 April 1987, 2 BvR 687/85: BVerfGE 75, 223; [1988] 3 CMLR 1. 246 ABH 2008, 2201. 247 ABH 2008, 1963. 248 See above at Chapter Four, point D.4. 249 Case 6/71 Rheinmühlen Düsseldorf v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1971] ECR 823. 250 Case 13/68 Salgoil (SpA) v. Italian Ministry for Foreign Trade [1968] ECR 453. 251 ABH 2008, 2201, at 2209. 252 ABH 2008, 1963. 253 Ibid., at 1982. 254 Case C-480/03 Hugo Clemens, b.v.b.a. Valkaniersgilde v. Walloon region, Council of Ministers, Order of ECJ: OJ 2005 C6/22.

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rulings in Vergy255 and Tridon256) in which the ECJ decided: “Council Directive 79/409/EEC of 2 April on the conservation of wild birds is to be interpreted as not being applicable to species born and reared in captivity and, accordingly, Member States remain competent, as European law now stands, to regulate the matter, subject to Articles 28 to 30 EC [now Articles 34–36 TFEU].” The approach of the ECJ in 2004 thus clearly favoured a distinction in treatment. However, the HCC, implicitly accepting the ECJ ruling priority, sought to distinguish Hugo Clemens from the case before it.257 It first noted that the wording of the ECJ quoted above did not preclude the use of analogous application of rules on wild species to captive-born ones but rather recognised that this was left to the discretion of the national legislator. However, the HCC went on to deal with the phrase “as European law now stands” which it regarded as highly important. Since the rulings of the ECJ referred to above, particularly Hugo Clemens interpreting Directive 79/409/EC on Wild Birds,258 the European legislative environment had subsequently changed: Regulation 865/2006/EC259 (which implemented a Council Regulation on the protection of the trade in wild animals and plants260) while preserving the former wording ‘wild’ in its title, referred in Recital 3 of its Preamble to its being necessary “to lay down detailed provisions relating to the conditions and criteria for the treatment of specimens of animal species that are born and bred in captivity … in order to ensure the common implementation of the derogations applicable to such specimens.” Chapter XIII was devoted to the rules on animals born and bred in captivity and artificially propagated species, stressing that they should come from a ‘controlled environment’;261 and Chapter XVI on marking of specimens for the purpose of imports and commercial activities within the Union262 dealt with the similarity in marking wild species and those born and bred in captivity or from a controlled environment. In this way, the HCC (whose argumentation does not appear to be particularly convincing) concluded263 that—contrary to the petitioner’s submissions—when

255 Case C-149/94 Criminal proceedings against Vergy [1996] ECR I-299. 256 Case C-510/99 Criminal proceedings against Tridon [2001] ECR I-7777. 257 ABH 2008, 1963, at 1982. 258 Directive 79/409/EEC on the conservation of wild birds: OJ 1979 L103/1. This Directive was variously amended; these amendments were subsequently codified in (and repealed by) Directive 2009/147/EC on the conservation of wild birds: OJ 2010 L20/7. 259 Commission Regulation 865/2006/EC laying down detailed rules concerning the implementation of Council Regulation 338/97/EC on the protection of species of wild fauna and flora by regulating trade therein: OJ 2006 L166/1. This Regulation was necessary to ensure full EU compliance with the the provisions of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (‘CITES’). 260 Council Regulation 338/97/EC on the protection of species of wild fauna and flora by regulating trade therein: OJ 1997 L61/1. 261 Commission Regulation 865/2006/EC, Art. 54. 262 Ibid., Arts. 64–68. 263 ABH 2008, 1963, at 1982–1983.

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dealing with restrictions on trade the European legislature had aimed at minimising the difference between rules that applied to birds living in the wild and those that were relevant to species born and bred in captivity. The HCC’s determination to distinguish the prior ECJ ruling in Hugo Clemens is quite apparent, despite its relatively weak arguments and to avoid any mention of a reference to the ECJ to resolve the ‘new situation’ post Regulation 865/2006/EC. The HCC has accordingly acknowledged the priority of the ECJ’s interpretation in Hugo Clemens by seeking to prove its non-applicability to the present case and by preventing the ECJ from being given the opportunity for itself to reconsider that ruling in view of the allegedly new legal context. E. Limits to National Constitutional Court Acceptance 1. Introduction The HCC—unlike its German and Polish counterparts264—has been less than forthcoming in explaining its understanding of the vital national limits to further constitutionalisation of the European legal order by the ECJ. The sparse case-law on the subject nevertheless indicates the existence of powers to supervise the process of continuing integration so as not to permit a surrender of sovereignty (at any stage) to the Union, at least without compliance with the necessary constitutional procedures. The absence of an unalterable core of sovereignty—as provided for under the German Constitution265—or the establishment in the Constitution that it is the supreme law of the State—as in Poland266—may explain in some way why the HCC has not taken such an active role in the pursuit of setting the acceptable constitutional limits to integration. 2. Essential Core as Limitation to Integration a. Pre-Accession In the lead up to accession, as was examined above, the issue of limitations of the transfer of the exercise of sovereignty were considered in some detail. During this process of consideration, it was necessary to have regard to the HCC’s previous case-law according to which it retained its review jurisdiction to ensure that the essential elements of sovereignty could not be infringed: e.g., the principles of democracy based on the representation of the people and a state based on the rule

264 See in respect of Germany, above, at Chapter Three, point E.; and in respect of Poland, see below, at Chapter Five, point E. 265 1949 German Constitution, Art. 79(3) together with Arts. 1 and 20: Chapter Three, point B.1. 266 1997 Polish Constitution, Art. 9: see below at Chapter Five, point B.1.

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of law could not be violated (Dec. 30/1998 (VI.28) AB267) and the previously existing level of protection of fundamental rights could not be reduced (Dec. 28/1994 (V.20) AB268). Moreover, the maintenance of the HCC’s jurisdiction in the face of European integration was justified by reference to the case-law of the FCC which had a great impact on the HCC’s approach in Dec. 4/1997 (I.22) AB where it observed269 that even in a dualist-transformation system like Germany— the law of the European Union [was to be applied] directly, without transformation, and they ensure superiority over national law with the exception of the Constitution. As a result of this, the constitutional courts exercise their right to constitutional examination of international treaties … and the decisions of international organisations … automatically becoming part of the domestic law.

The HCC then concentrated on the FCC and some of its major rulings in this field, particularly the Maastricht decision which preceded the present ruling by a few years:270 The German FCC, despite the fact that it does not have the competence for preliminary review, extended its practice to examine international treaties prior to their ratification. The German FCC first examined a law ratifying an international treaty (prior to its promulgation) in 1952.[271] Later the FCC established its practice according to which the law promulgating a treaty may be the subject of a posteriori review as well as of constitutional complaint, thus the international treaty becomes an indirect subject of the procedure. On the basis thereof, the FCC examined, for instance, the constitutionality of the Basic Agreement between the Federal Republic of Germany and the German Democratic Republic[272]; the European Community Treaty[273] … regarding the Act promulgating the Maastricht Treaty, the FCC examined the question whether the legal meaning of the direct election of the Members of the Bundestag under the Grundgesetz [“GG”], as well as democracy, and the sovereignty of the people became redundant due to the supranational nature of the EU.[274] From these decisions, the following position becomes clear: the German FCC besides exercising its constitutional power concerning a posteriori review “naturally” – especially with regards to European Union treaties – must not give up any part of its task to protect the Constitution; this function, then, extends to every way of exercising sovereignty under the GG. On the basis of this, the FCC – besides examining the law promulgating a treaty – retains the submission to European law under constant control.

267 ABH 1998, 220. 268 ABH 1994, 134. 269 ABH 1997, 41, at 52. 270 Ibid., at 52. 271 European Defence Community, 15 Mai 1952, 1 BvQ 6/52: BVerfGE 1, 281; Germany Treaty, 30 Juli 1952, 1 BvF 1/52: BVerfGE 1, 396, at 413. 272 Basic Treaty between FRG and GDR, 31 Juli 1973, BvF 1/73: BVerfGE 36, 1. 273 Steinike & Weinlig, 25 Juli 1979, 2 BvL 6/77: BVerfGE 52, 187, at 199. 274 Maastricht, 12 Oktober 1993, 2 BvR 2134 und 2159/92: BVerfGE 89, 155; [1994] 1 CMLR 57.

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The HCC did not mince its words: European law would apply with priority except with respect to the Constitution and it would itself retain its review jurisdiction a posteriori over European treaties as well as Regulations and Directives through, e.g., the then actio popularis under 1990 Constitution Art. 32/A and 1989 Con stitutional Court Act, s. 1(b).275 In respect of Dec. 4/1997 (I.22) AB, Ficsor regarded citation to further decisions from the German practice, particularly the Maastricht case, in itself as an important sign.276 The HCC emphatically recalled certain elements of the German decision, e.g. the question of whether or not the legal content of the direct election of the Bundestag (that is, the democracy and the sovereignty of the people) would become devoid of content because of the supranational nature of the EU. The HCC drew the conclusion based on the quoted decisions that the German FCC would not surrender some of its tasks for the preservation of the Constitution (especially with reference to EU treaties), in addition to maintaining its natural right to exercise its jurisdiction for a posteriori norm control. Ficsor then referred to the HCC’s statement in respect of the task of preserving the Constitution that “applies to the practice of all types of sovereignty which rely exclusively on the Constitution/Grundgesetz. On this basis, the Constitutional Court does not only examine the acts, but also continuously monitors their subjection to European law.” Concluding on this point, he stated:277 The inclusion of this statement in the decision was obviously not induced by the fact that the Hungarian Constitutional Court will not be able to identify itself with this point of view in the future. On the contrary: the statement that the Constitutional Court continuously controls the subjection to European law, as a general statement, may later be applied distinctly from the analysis of the situation of German constitutionality, and, in a different context, it may prevail in the practice of the Constitutional Court in so far as the relationship between the Hungarian Constitution and European law is concerned.

His previous observations have actually been reinforced by the FCC’s 2009 ruling in Lisbon278 which would accordingly strengthen the HCC’s position, even in respect of EU primary law. b. Conferral of Powers Under 1990 Constitution Art. 2/A With the entry into force of the first integration clause under 1990 Constitution Art. 2/A, the limits to integration permitted as constitutional became more clearly defined. Article 2/A(1) provided: 275 See above at Chapter Four, point A.2.a. 276 Ficsor (1997), at 464. 277 Ibid. 278 Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267; [2010] 3 CMLR 13, 276.

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chapter four By virtue of treaty, the Republic of Hungary, in its capacity as a Member State of the European Union, may exercise certain constitutional powers jointly with other Member States to the extent necessary in connection with the rights and obligations conferred by the treaties on the foundation of the European Union and the European Communities (hereinafter referred to as “European Union”); these powers may be exercised independently and by way of the institutions of the European Union.

This provision was replaced under the 2011 Constitution by Art. E(2) which is worded in a similar fashion to 1990 Constitution Art. 2/A. Consequently, while most of the following discussion refers to Art. 2/A, the arguments expressed and observations made are equally relevant in the context of the present 2011 Con stitution Art. E(2).279 This point is further emphasised in the discussion at the end of the present section.280 In respect of 1990 Constitution Art. 2/A, Csuhány & Sonnevend281 argued cogently that this integration clause expressly permitted such an extensive national constitutional limitation on the exercise of sovereignty vis-à-vis EU membership—broader than that usually allowed under international treaty as well as usually permitted under 1990 Constitution Art. 2(1) and (2), as interpreted by the HCC282 (now 2011 Constitution Art. B)—that 1990 Constitution Art. 2/A amounted to an exception to the constitutional principle of democratic legitimation thereby rendering it a lex specialis compared to 1990 Constitution Art. 2. Article 2/A was worded not as a ‘once-and-for-all’ clause to allow Hungary to accede to the EU and to furnish it with a legal basis for a transfer of the exercise of sovereignty on that accession only, but rather as the continuing legal basis for the exercise of public power by the EU in Hungary: consequently, any limits that might have been placed on Art. 2/A would have impeded the implementation of EU law in Hungary. The HCC itself referred to the effect of 1990 Constitution Art. 2/A in Dec. 61/B/2005 AB283 in which it noted that the aim of that provision was to define the premises and framework of Hungary’s participation in the EU. It identified how the authorisation in that Article operated together with its limitations:284 The above mentioned provision of the Constitution provides authorisation for the Republic of Hungary on the one hand to conclude international treaties under which it would exercise certain powers jointly with other Member States, and on the other to exercise joint powers through the European Union’s institutions. There are, 279 Similar points were made by L. Blutman & N. Chronowski, “Hungarian Constitutional Court: Keeping Aloof from European Union Law” (2011) 5/3 Vienna J Intl. Const. L 329, at 348, footnote 54; and by Bragyova (2012), at 337–338 and 357–358. 280 See below at Chapter Four, point E.2.e. 281 P. Csuhány & P. Sonnevend, “2/A. § [Európai Unió],” in A. Jakab (ed.), Az alkotmány kommentárja, Vol. I, Általános rendelkezések, 2nd ed., Századvég Kiadó, Budapest (2009), 238, at 252–253. 282 See above at Chapter Four, points B.2. and C.2. 283 ABH 2008, 2201. 284 Ibid., at 2206–2207.

the hungarian constitutional court181 however two limitations: (1) The joint exercise of powers should only take place as far as it is necessary in order to exercise rights and fulfil duties laid down by the European Union’s founding treaties; (2) Only certain specific powers that are authorised by the Constitution may be exercised jointly, in other words the scope of powers that can be exercised jointly are limited.

Thus following on from the justification to the Act which introduced Art. 2/A285 (and referred to by Harmathy, J. in Dec. 57/2004 (XII.14) AB286), Csuhány & Sonnevend287 set out five limitations on the common exercise of competences under that Article. Thus the common exercise would be constitutional if it were: (i) in the interest of participating in the EU; (ii) in the interest of being an EU Member State; (iii) according to an international treaty; (iv) only certain competences (and thus not all competences); (v) justified with other Member States based on the need to fulfil rights and obligations deriving from the founding Treaties; and (vi) with respect to a competence derived from the Constitution. Through Art. 2/A, the 1990 Constitution thus provided according to the HCC not only a clear, constitutional conferral of powers on the EU (as also determined by the FCC in Maastricht288 and later confirmed and expanded on in Lisbon289) but also a limitation to such conferral and common exercise of powers, i.e., the recognition by the HCC of an ultra vires limit similar to that of the FCC in Maastricht and more strongly articulated as the basis for constitutional review in Lisbon. Thus none of the competences could be transferred from Hungary, unilaterally and without its consent.290 With the limits referred to in Art. 2/A, that clause emphasised the requirement that the common exercise of competences could not be made beyond the areas established in the founding Treaties. Consequently, through incorporating the ultra vires limit, Art. 2/A rendered it a domestic constitutional question as to whether or not such competences had been exceeded.291 Nevertheless, it was evident that this question—as regards EU law—was also subject to the Art. 267 TFEU reference procedure and the power of the ECJ to annul an EU act for lack of competence.292 The ultra vires limit would not have rendered such Union acts automatically unconstitutional because of the fact that they had been made without the necessary competence—rather, from a Hungarian point of view, 1990 Constitution Art. 2/A would not have provided the legal basis for such (non-competent) EU act under that Constitution.

285 Act LXI of 2002: MK 2002/161. 286 ABH 2004, 809, at 819. 287 Csuhány & Sonnevend (2009), at 253. 288 See above at Chapter Three, point E.2.b. 289 See above at Chapter Three, point E.2.d. 290 Csuhány & Sonnevend (2009), at 257. 291 Blutman & Chronowski (2007), at 20–23. 292 Article 263 TFEU (ex-Art. 230 EC).

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A further limitation on the transfer of the exercise of sovereign powers was that such transfer did not extend to Union acts which infringed fundamental rights.293 According to 1990 Constitution Art. 8(2) (now 2011 Constitution, Art. I(3)), “rules pertaining to fundamental rights and duties shall be determined by statute which, however, may not limit the essential content of any fundamental right.” By analogy, then, if a Hungarian statute could not have done so then—in exercising competences transferred to the EU under the Constitution—such essential content could not have been infringed by a Union act either. In its case-law the HCC provided a relative interpretation to the notion of essential content and its guarantee enjoyed a general importance beyond the possibility of proportional restriction in individual cases.294 Consequently, the objective absolute dimension of the essential content of a right might have played a role when fundamental rights restrictions were based on EU law. Arguably, the fundamental rights restriction based on EU law would not have had to meet the stricter requirements of the Constitution and thus would have avoided the ‘actual core’ of the essential content of such a right, especially in view of the fact that human rights are protected at the European level through ECJ case-law295 and more recently the EU Charter on Fundamental Rights, post Lisbon.296 Thus it would appear, when interpreting any constitutional provision, it would have been necessary to have had recourse to 1990 Constitution Art. 6(4) (now covered by 2011 Constitution Art. E(1)) which stated that Hungary “contributes to achieving European unity in order to realise the liberty, the well-being and the security of the European people.” In this way, the HCC would have been able to follow the FCC in Wünsche297 and Banana Market II298 and to refrain from exercising any review jurisdiction over EU law, e.g., Regulations, unless they had infringed the core of the essential content of a fundamental right. The issue of European secondary legislation—particularly Regulations299— infringing a constitutional provision was also considered. 1990 Constitution 293 See generally, P. Sonnevend, “Alapvető jogaink a csatlakozás után” 2003/2 Fundamentum 27–37. 294 See, e.g., Dec. 23/1990 (X.31) AB: ABH 1990, 88; Dec. 64/1991 (XII.17) AB: ABH 1991, 297; Dec. 64/1993 (XII.22) AB: ABH 1993, 373; and Dec. 60/1994 (XII.24) AB: ABH 1994, 342. 295 See, e.g., Case 26/69 Stauder v. City of Ulm [1969] ECR 419; Case 11/70 Internationale Handelsgesellschaft mbH v. Einfuhr-und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125; Case 25/70 EVGF v. Köster [1970] ECR 1161; Case 4/73 Nold v. Commission [1974] ECR 491; Case 44/79 Hauer v. Land Rheinland-Pfalz [1979] ECR 3727; Case 63/83 R. v. Kent Kirk [1984] ECR 2689; Case 5/88 Wachauf v. Germany [1989] ECR 2609. See generally, P. Alston, M. Bustelo & J. Heenan (eds.), The EU and Human Rights, Oxford University Press, Oxford (2001). 296 OJ 2010 C83/389. According to Art. 6(1) TEU: “The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.” 297 Wünsche Handelsgesellschaft, 22 Oktober 1986, 2 BvR 197/83: BVerfGE 73, 339; [1987] 3 CMLR 225. 298 Banana Market II, 7 Juni 2000, 2 BvL 1/97: BVerfGE 102, 147; (2000) 21 HRLJ 251. 299 Blutman & Chronowski (2007), at 19–20.

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Art. 32/A(2) (now 2011 Constitution Art. 24(3)(a)) stated that the HCC shall annul “the statutes and other legal norms that it finds unconstitutional.”300 At first glance, this might have appeared to exclude the possibility of reviewing general acts of European law, such as Regulations.301 However, a contrary argument might be justified by the wording of the HCC in Dec. 4/1997 (I.22) AB302 (as detailed above303) when it approved, inter alia, the FCC practice of exercising its right to constitutional review of decisions of international organisations that automatically became part of the domestic law, e.g., Regulations, and the fact that the FCC did not surrender its task of protecting the Constitution but kept the submission to European law under constant control. However, since accession, the HCC has been at pains to indicate that it does not possess the jurisdiction to review the constitutionality of EU secondary legislation. In this way, as discussed above,304 it has sought to ‘deconstitutionalise’ the issue and return the responsibility Simmenthal-style to the ordinary courts which would need to refer the issue to the ECJ to determine the validity of the Regulation. b. Exercise of Constitutional Review After accession,305 the HCC as a bench initially tended to evade any confrontation on the point: in Dec. 17/2004 (V.25) AB, it avoided any attempt at goading it into constitutional review of a Regulation.306 Nevertheless it would appear that it remained mindful of the remaining constitutional jurisdiction it had, in line with Dec. 4/1997 (I.22) AB and expressly voiced by Kovács, J. (Bagi, J., concurring) in Dec. 1053/E/2005 AB. He noted, in that case, the serious constitutional and European law debates of previous decades307 as to “whether constitutional courts … could exercise their constitutional protectionist function.” Through a “significant metamorphosis of European law,” based partly on the relationship of co-operation between the ECJ and national courts, Kovács, J. stated:308 Following all this, the European constitutional courts adopted a very similar approach, and out of them the practice of the German constitutional court and the French constitutional council are the most referred to. As regards the present request, we might come to the same conclusion by using another path already followed by many other European constitutional courts. This means that the very narrow scope 300 Emphasis supplied. 301 2001 Government Paper, at 37. 302 ABH, 1997, 41. 303 See above at Chapter Three, points D.2. and E.2.a. 304 See above at Chapter Three, point D.2. 305 F. Fazekas, “La Cour constitutionnelle et la Cour suprême hongroise face au principe de la primauté du droit de l’Union européenne” Actes du VIIIe Séminaire Doctoral International et Européen, Université de Nice-Sophia Antipolis, Nice (2008), 139, at 141–146. 306 See below at Chapter Four, point E.3. 307 Dec. 1053/E/2005 AB: ABH 2006, 1824, at 1829–1830. 308 Ibid., at 1830.

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chapter four of application – in which the theoretical possibility of a constitutional court decision regarding European law matters exists – is determined theoretically and in the spirit of self-restraint.

It was apparent then that the HCC retained a limited but vital jurisdiction—which in practice it would almost always refuse to exercise—that continued to protect the essential core of Hungarian sovereignty and put the power to decide upon the rate of integration into its hands. This is in fact what occurred: in Dec. 57/2004 (XII.14) AB309 and Dec. 58/2004 (XII.14) AB,310 the HCC regarded the 2004 EU Constitutional Treaty as an international treaty which was subject to its a priori (pre-ratification) review. Similarly in Dec. 61/2008 (IV.29) AB,311 the HCC also regarded the 2007 Lisbon Treaty as an international treaty before ratification by Hungary. It stated312 that “as long as the required conditions included in the treaty—which are needed to enter into force—are not fulfilled, the Constitutional Court can only appraise the founding and amending [EU] treaties as sources of international law.” In all three cases, then, the HCC clearly viewed treaties amending the basic EU Treaties as susceptible to review under 1990 Constitution Art. 7 and the 1989 Constitutional Court Act, s. 1(a) because they amounted to international treaties, decided on by the Member States unanimously. This exercise of its a priori jurisdiction might be regarded as a more acceptable form of review power to be exercised in relation to amending the Treaties, thereby allowing the HCC some residual control, if called upon, to examine whether or not an amending Treaty were constitutional. In fact, in the Lisbon case, Dec. 143/2010 (VII.14) AB,313 the HCC exhorted the relevant political institutions with standing, under 1989 Constitutional Court Act s. 1(a), to use the a priori review in respect of treaties, like the 2007 Lisbon Treaty, which enjoyed such a high level of constitutional importance.314 In view of the foregoing, it would accordingly come as no surprise when the HCC was asked to rule in Dec. 32/2008 (III.12) AB315 on the constitutionality of 309 ABH 2004, 809. 310 ABH 2004, 822. 311 ABH 2008, 546. 312 Ibid., at 550. 313 Dec. 143/2010 (VII.14) AB: ABH 2010, 698. 314 However, in Dec. 143/2010 (VII.14) AB, the HCC clearly did not, by implication, exclude an a posteriori review using the actio popularis. Although the requirement of legal certainty and the exclusion of the HCC from participating in foreign policy areas reserved for the executive and legislature, post ratification, would have tended to militate against any potential consequential disruption in external relations through review of the Hungarian statute promulgating the relevant European treaty, this is indeed what happened in that case. 315 ABH 2008, 334. N. Balogh-Békesi, “‘Közös európai alkotmányjog’ vagy szuverenitás-transzfer esetről-esetre (A magyar Alkotmánybíróság döntéséről az EU valamint Izland és Norvégia közötti átadási eljárásról szóló megállapodás tárgyában” (2008) LXIII Jogtudományi Közlöny 310–315; N. Chronowski, “Nullum crimen sine EU?” 2008/4 Rendészeti Szemle 39–60; and P. Kovács, “Az EUINmegállapodás és az alkotmányosság” (2008) LV Magyar Jog 409–413.

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certain provisions of the Act transposing into Hungarian law the Agreement between the EU and Iceland and Norway on the surrender procedure between the parties: this Agreement316 effectively extended the European Arrest Warrant procedure to these two Scandinavian States. The President of the Republic commenced an a priori review of the Hungarian Act implementing the Agreement on the ground that certain provisions of the Agreement infringed the principles of ‘nullum crimen sine lege’ and ‘nulla poena sine lege’ in 1990 Constitution Art. 57(4)317 which, at that time, provided: “No one shall be declared guilty and subjected to punishment for an act which did not constitute a criminal offence under Hungarian law at the time it was committed.” The HCC first ruled that it enjoyed jurisdiction in the case since the Agreement, as an external Union Treaty, was an international treaty for the purposes of s. 36(1) of the 1989 Act on the Constitutional Court:318 under 1990 Constitution Art. 2/A, the Agreement did not amount to a European law measure because it did not aim to amend or modify Union competences as defined in the founding Treaties. It continued by observing that the expression in 1990 Constitution Art. 57(4) ‘under Hungarian law’ referred first of all to the Hungarian legislation and especially to the provisions of the Criminal Code. However, it also referred to the generally recognised rules of international law319 and to the primary and secondary sources of the European law.320 In fact, the HCC went to great pains to underline the fact that the subject-matter of the case concerned the constitutionality of the Hungarian statute implementing the Agreement in the national system rather than the Agreement itself which was being reviewed against the principles in 1990 Constitution Art. 57(4). However the result was that, when the HCC found certain provisions of the Act unconstitutional, the Agreement could not be ratified until Parliament had eliminated the unconstitutionality or the new Art. 57(4) had entered into force (which it duly did, at the same time as the 2007 Lisbon Treaty321). In its revised form, 1990 Constitution Art. 57(4) finally stated: No one shall be declared guilty and subjected to punishment for an offence that was not considered – at the time it was committed – a criminal offence under Hungarian law, or the laws of any country participating in the progressive establishment of an area of freedom, security and justice, and to the extent prescribed in the relevant

316 Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the surrender procedure between the Member States of the European Union and Iceland and Norway: OJ 2006 L292/2. 317 This is now covered in 2011 Constitution Art. XXVIII(4). 318 See now 2011 Constitutional Court Act, s. 23(4). 319 Constitution Art. 7. 320 Constitution Art. 2/A. 321 Act CLXVII of 1997: MK 2007/182.

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While this wording has been substantially repeated under 2011 Constitution Art. XXVIII(4), the detailed wording in the second clause commencing with the phrase “or the laws of any country” has been replaced by a broader “or of any other state by virtue of an international agreement or any legal act of the European Union.” d. Constitutional Identity The HCC was further able to explain its understanding of the limits to the transfer of the exercise of sovereignty in its own Lisbon case, Dec. 143/2010 (VII.14) AB.322 In that case, a petitioner, using the then actio popularis procedure for a posteriori review under s. 1(b) of the 1989 Constitutional Court Act, sought review of Act CLXVII of 2007323 which had promulgated the Lisbon Treaty. His petition underlined the fact that various new rules and mechanisms of the Treaty jeopardised the existence of the Republic of Hungary as an independent, sovereign state governed by the rule of law as provided for under 1990 Constitution Art. 2(1) and (2) (now 2011 Constitution Art. B). At the outset of its ruling, the HCC indicated that the reasoning and the examples of the petition were more or less similar to those examined by other constitutional courts in the framework of their a priori review of the Lisbon Treaty where they had concluded either that that Treaty was compatible with their constitution or that its ratification could be achieved with a constitutional amendment. Of particular interest for the present study was the following statement by the HCC:324 Several constitutional court decisions [on the Lisbon Treaty] (FCC: 2 BvE 2/08, delivered on 30.06.2009; the Czech Constitutional Court: Pl. ÚS 19/08, delivered on 28.11.2008; and Pl. ÚS 29/09, delivered on 03.11.2009) referred to the importance of protecting state “constitutional identity” in the European Union, even after the Lisbon Treaty had entered into force. The Constitutional Court studied these decisions…. The Constitutional Court notes that a posteriori constitutional review was also initiated before the Polish Constitutional Tribunal (Case Nos. K 32/09 and K 37/09) but no decision has yet been made.

From the outset of the decision, then, the HCC had acknowledged that it had taken into account the deliberations of the FCC and the Czech Court on the issue 322 Dec. 143/2010 (VII.14) AB: ABH 2010, 698. See, e.g., L. Blutman, “A Magyar Lisszabon-határozat: Befejezetlen szimfónia Luxemburgi hangnemben” 2010/2 Alkotmánybírósági Szemle 90–99; and Á. Mohay, “Decision 143/2010 of the Constitutional Court of the Republic of Hungary regarding the constitutionality of Act CLXVIII of 2007 promulgating the Lisbon Treaty” (2012) 6 Vienna J Intl. Const. L 301–306. 323 Act CLXVIII of 2007: MK 2007/182. 324 Dec. 143/2010 (VII.14) AB: ABH 2010, 698, at 700.

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of constitutional identity as well as the arguments raised before the Polish CT. This theme is pursued implicitly by the HCC in its reasoning as it discusses, at some length, the relationship between 1990 Constitution Arts. 2 and 2/A. It noted325 that Art. 2/A contained the constitutional power—‘transfer of sovereignty’ or ‘transfer of power’—through which the Constitution established a clear constitutional basis and framework to enable Hungary to accede to the EU. Under Art. 2/A(1), ‘international treaty’ was to be interpreted not only as being the so-called 2003 Accession Treaty326 but it logically included a new international treaty according to which, through the development of the EU, further powers of the Constitution would need to be exercised ‘jointly’ or ‘through the institutions of the EU,’ with the transfer of these powers being to the ‘extent necessary.’ Were the HCC to be seised of a petition under 1989 Constitutional Court Act, s. 1(a) from the Government or the President for an a priori review of such international treaty:327 In this case the Constitutional Court – with other domestic or EU bodies – independently determines whether or not the proposed reform goes beyond Constitution Art. 2/A(1) regarding the common exercise of competences (coming from the founding Treaties) with other Member States or through the institutions of the EU and if it is considered as a “necessary measure.” Therefore, in such far-reaching reforms, it is desirable for a priori norm control when a treaty is supposed to be signed. The Constitutional Court – taking the general role of protection of the Constitution into account – points out that in respect of the Act promulgating the Lisbon Treaty the reconsideration of constitutional issues raised a posteriori happened without an initiative of a priori norm control.

The HCC clearly called on the Government and/or the President to use their powers under the 1989 Act, s. 1(a) so that it might conduct a constitutional identity review of a further proposed European treaty before promulgation. The HCC continued by re-examining its previous case-law on state sovereignty and the limitations on it, as discussed above,328 in Dec. 36/1999 (XI.26) AB,329 Dec. 5/2001 (II.28) AB,330 Dec. 1154/B/1995 AB331 and Dec. 30/1998 (VI.25) AB.332 In the latter case, the HCC noted that it had already examined the relationship between European law and state sovereignty in 1990 Constitution Art. 2(1) and (2) before EU accession: this previous case-law on sovereignty was to be followed in the Lisbon case. 325 Ibid., at 705–708. 326 Ibid., at 705. 327 Ibid. 328 See above at Chapter Four, point C.2. 329 ABH 1999, 320, at 322. 330 ABH 2001, 86, at 89. 331 ABH 2001, 823, at 826 and 828. 332 ABH 1998, 220.

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The HCC referred extensively to its discussion of 1990 Constitution Art. 2(1) in Dec. 30/1998 (VI.25) AB333 and Art. 2(2) in Dec. 2/1993 (I.22) AB.334 The lengthy quotation from Dec. 30/1998 (VI.25) AB concluded:335 “It is, therefore, a general principle to be followed on the basis of Constitution Art. 2(1) and (2) that all legal norms of a public law nature, to be applied in domestic law to Hungarian subjects of law, must be based on democratic legitimacy allowing them to be traced back to popular sovereignty.” The HCC then noted in Lisbon:336 The requirement of the traceability of popular sovereignty, according to this Decision, was complied with in the preparation for EU accession by placing [this requirement] into Constitution Art. 2/A…. The prevalence of Art. 2/A may not however deprive Art. 2(1)-(2) of its substance. [Emphasis supplied.]

Consequently, although 1990 Constitution Art. 2/A was the domestic constitutional basis for continuing EU membership and amendments to the founding (now TEU and TFEU) Treaties, 1990 Constitution Art. 2(1) and (2) on sovereignty and the rule of law arguably constituted the ‘constitutional identity’ of Hungary and thus, as noted earlier, the transfer of competences to the EU could not exceed the extent necessary to exercise the rights and perform the obligations under EU law. To this mix must be added 1990 Constitution Art. 6(4) according to which participation in European integration was a state goal. As the HCC pointed out: “Participation is not a goal in itself but has to serve human rights, prosperity and security.” An EU law which did not serve these aims either could be regarded as infringing the constitutional identity of Hungary. In fact, in the case itself, the concurring Opinion of Trócsányi, J.337 suggested that principles which comprised the constitutional identity or essential core of Hungarian sovereignty and were thus protected from restriction by the EU included the rules on the election of MPs, the dissolution of Parliament, or the appointment of members of the government or of the judiciary. To this nucleus of constitutional identity, it had already been argued that the protection of fundamental rights belonged338 and this appears to have been confirmed in Dec. 61/2011 (VII.13) AB339 in which the HCC rejected the constitutional challenge to certain amendments to the 1990 Constitution introduced to alter the HCC’s jurisdiction. The HCC indicated, inter alia, that ius cogens in

333 Ibid., at 233–234. 334 ABH 1993, 33, at 36. 335 ABH 1998, 220, at 233. 336 Dec. 143/2010 (VII.14) AB: ABH 2010, 698, at 707–708. 337 Ibid., at 713–714. 338 A. Bragyova, “Vannak-e megváltoztathatatlan normák az Alkotmányban?” in A. Bragyova (ed.), Ünnepi tanulmányok Holló András hatvanadik születésnapjára, Bíbor Kiadó, Miskolc (2003), 65–88. 339 Dec. 61/2011 (VII.13) AB: ABH 2011, 290, at 320–321.

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international law—which covered fundamental rights under international treaties—might form part of the inalienable principles of Hungarian constitutional law. If these are taken together, then it would appear that the HCC is moving towards the direction—already indicated in this Chapter—that indicates an essential core of sovereignty which forms the EU-immune constitutional identity of Hungary. In conclusion, post Lisbon, the HCC considered that Hungary remained an independent state and the EU’s gaining legal personality had not altered that fact. It observed that the necessary two-thirds majority in the Hungarian Parliament had been garnered to ratify the Lisbon Treaty according to the 1990 Constitution:340 such exercise of power was still done jointly with other Member States or through EU institutions. Having earlier referred to Art. 50 TEU on withdrawal from the EU as underlining the continuing independence of the state in European integration,341 thereby following the example of the FCC in respect of the same TEU Article in its Lisbon ruling,342 the HCC found the petition unfounded since the independence, the rule of law and the existence of a separate state had not disappeared. While certainly more compact than the ruling on the Lisbon Treaty by the FCC, the HCC enunciated its own understanding of constitutional identity, possibly laying down the foundation stones for the development of an essential core of sovereignty which could not be limited or touched by deepening European integration. The plea to the Government and/or President to petition the HCC before a treaty as highly important as the Lisbon Treaty was promulgated, was directly linked to its understanding of a Hungarian constitutional identity review as well as a possible ultra vires review. By rendering its decision at such a time, the HCC would be able to avoid much of the negative implication of the same types of review proposed by the FCC in its Lisbon ruling343 and so considerably reduce the political tensions that would surround the threat of an a posteriori review of the same treaty.

340 The Hungarian Government had considered that neither the proposed EU Constitutional Treaty or nor the Lisbon Treaty would require a national referendum to enter into force. Consequently it ratified both instruments with the necessary two-thirds majority of the 385 MPs: (1) the EU Constitutional Treaty on 20 December 2004, with 323 votes in favour and 12 against (with 8 abstentions); and (2) the Lisbon Treaty on 17 December 2007, with 325 votes in favour and only 5 against (with 14 abstentions). 341 See on Art. 50 TEU, A.F. Tatham, “‘Don’t Mention Divorce at the Wedding, Darling!’: EU Accession and Withdrawal after Lisbon,” in A. Biondi, P. Eeckhout & S. Ripley (eds.), EU Law after Lisbon, OUP, Oxford (2012), 128, at 148–154. 342 Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267, at 349–350 and 395–396; [2010] 3 CMLR 13, 276, at 335 and 367–369. 343 Ibid., at 351–355; ibid., at 336–338.

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e. Conferral of Powers under 2011 Constitution Art. E(2) With the entry into force of the new basic law, 1990 Constitution Art. 2/A was replaced by 2011 Constitution Art. E, under para. (2) of which it now states: With a view to participating in the European Union as a Member State, Hungary may exercise some of its competences arising from the Constitution jointly with other Member States through the institutions of the European Union under an international agreement, to the extent required for the exercise of the rights and the fulfilment of the obligations arising from the Founding Treaties.

In addition, 2011 Constitution Art. E(3) allows for EU secondary legislation “subject to the conditions set out in para. (2).” Since the new provisions largely use the wording of former Art. 2/A, the previous case-law and academic discussions remain pertinent and useful guidance as to how Art. E will be interpreted.344 Moreover the express conferral of competence on the EU reaffirms Dec. 143/2010 (VII.14) AB.345 2011 Constitution Art. E(2) and (3) thus maintain for the HCC an ultra vires review jurisdiction, akin to the FCC in Maastricht and Lisbon—and previously acknowledged by the HCC in Dec. 4/1997 (I.22) AB,346 Dec. 30/1998 (VI.25) AB347 and Dec. 143/2010 (VII.14) AB—together with the implicit possibility of a form of constitutional identity review, either in the ratification process or, arguably, in respect of a post-enactment constitutional complaint for human rights protection. This latter might be based on the example of the FCC with its development of the constitutional principle of democracy, linked back to the right to human dignity, by which it has allowed individuals to challenge the Maastricht and Lisbon Treaties as well as the Euro-rescue measures.348 3. Review of National Transposing Law The examination of EU-law transforming domestic legal norms falls much deeper within the competence of the HCC under 1990 Constitution Art. 32/A(2) (now revised, 2011 Constitution Art. 24(2)), as read with Dec. 4/1997(I.22) AB349 and Dec. 30/1998 (VI.25) AB.350 In these rulings, the HCC affirmed its competence to review international treaties before promulgation (as provided for at that time in Act XXXII of 1989, ss. 1(a) and 36351) as well as a posteriori by examining the national norm which had ‘domesticated’ the treaty or the relevant secondary legislation created by organs established under that treaty. It was possible therefore for the 344 This point is basically affirmed by Bragyova (2012), at 337–358. 345 Dec. 143/2010 (VII.14) AB: ABH 2010, 698. 346 ABH 1997, 41. 347 ABH 1998, 220. 348 See above Chapter Three, at ¿??? 349 ABH 1997, 41. 350 ABH 1998, 220. 351 See now 2011 Constitutional Court Act, s. 23.

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HCC to annul such national law, e.g., implementing a Directive, on the ground of its unconstitutionality.352 However, Kukorelli & Papp opposed this position and argued that this be expressly excluded:353 The possibility of the Constitutional Court examining the constitutionality of European law has to be excluded because this would impair the powers of the ECJ. To avoid this, Article 32/A of the Constitution has to be amended to the effect that powers of the Constitutional Court do not include examination of European [Union] measures binding on the Republic of Hungary or the examination of conformity to the law of the European [Union] of their executive measures.

As it turned out, these powers and their exercise were not expressly amended with respect to EU accession. From this, it may be possible to deduce that such explicit circumscription of the HCC’s powers, particularly after its clear reasoning in Dec. 4/1997 (I.22) AB, was not up for reconsideration where it stated:354 From [its] decisions, the following position becomes clear: the German FCC besides exercising its constitutional power concerning a posteriori review “naturally” – especially with regards to European Union treaties – must not give up any part of its task to protect the Constitution; this function, then, extends to every way of exercising sovereignty under the Constitution. On the basis of this, the Constitutional Court – besides examining the law promulgating a treaty – retains the submission to European law under constant control. [Emphasis supplied]

Thus before accession, the HCC had evidently accepted the approach of the FCC vis-à-vis European law (whether primary or secondary) and would retain its ultimate review control over the latter if it became necessary to exercise it. Nevertheless, it has already been seen that the HCC has tended, in practice, to avoid constitutionalisation of EU law. The practice post accession, before the HCC, has in fact concentrated on the review of transposing national legislation and its previous acknowledgement of the potential influence of German constitutional practice has arguably been affirmed.355 For example, in Dec. 17/2004 (V.25) AB356 the HCC was confronted with the constitutionality of national rules passed to implement a number of Regulations in the agricultural sector (and not the review of the Regulations themselves). According to the 2003 Accession Treaty, Art. 2(3), EU institutions were given the power—before accession—to adopt measures referred to in specific Articles of the Act of Accession. Article 41(1) of the Act of Accession provided that transitional measures could be adopted by the Commission if they were necessary to 352 This position was expressly acknowledged by the Hungarian Government in its 2001 Paper, with the reservation that a ruling by the ECJ on the particular EC provision’s direct effect could prevent constitutional review: 2001 Government Paper, at 36. 353 Kukorelli & Papp (2002), at 5. 354 ABH 1997, 41, at 52. 355 Blutman & Chronowski (2007), at 23–24. 356 ABH 2004, 291. Trócsányi & Csink (2008), at 66–67; Fazekas (2007), at 208–209.

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facilitate the transition from the regulatory systems existing in the new Member States to that resulting from the application of the Common Agricultural Policy under the conditions set out in the Act of Accession. (Both the Accession Treaty and the Act of Accession entered into domestic force on 1 May 2004 by dint of Act XXX of 2004357). Based on these two provisions, the Commission adopted: (a) Regulation 1972/2003/EC358 to prevent agricultural products—in respect of which export refunds had been paid before 1 May 2004—from benefiting from a second refund if exported to third countries after 30 April 2004; and (b) Regulation 60/2004/ EC359 that provided similar rules for the sugar sector. The Regulations—although directly applicable—nevertheless still required national implementing rules in respect of the necessary inventory system by which to identify market players for speculative trade movements before the CEECs entered the EU and to tax those surplus stocks. Hungary attempted to fulfil its obligations through the adoption by Parliament on 5 April 2004 of an Act on Measures related to the Accumulation of Commercial Surplus Stocks of Agricultural Products (‘the Surplus Act’). The Surplus Act and the relevant Commission Regulations were intended to prevent the accumulation of surplus stocks of certain agricultural products. Both the EU and the (soonto-be) new Member States were concerned that there was a considerable risk of disruption on the markets in various agricultural sectors by products introduced for speculative purposes into these new Member States before accession. Accordingly, the quantities of surplus stocks of products had to be eliminated from the market at the expense of the new Member States. These new Members were therefore required to take an inventory of stocks as at 1 May 2004 (accession date) and, on that basis, notify the Commission about the quantity of products in surplus by 31 July 2004, at the latest. The legislative intent was to identify the operators or individuals involved in major speculative trade movements before the new Member States entered the European Union. The core concern was to ensure that the new Member States had a system in place on 1 May 2004 that would enable them to identify those responsible for such speculative transactions and to tax the owners of such surplus stocks of agricultural products. The President of the Republic submitted the Surplus Act for constitutional review. Had he signed the Act, it would have entered into force only on 25 May 2004, while the obligations set out in the Act were to have come into effect on 1 May, the date of entry into force of the Accession Treaty. The Regulations stipulated that their entry into force would be on 1 May 2004 and required the new 357 The 2003 Accession Treaty (OJ 2003 L236/33) was published as Annex I to Act XXX of 2004. 358 OJ 2003 L293/3, as amended by Reg. 230/2004/EC (OJ 2004 L39/13) and Reg. 735/2004/EC (OJ 2004 L114/13). 359 OJ 2004 L9/8.

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Member States to develop and implement the relevant measures so that they would be applicable as of 1 May. The President claimed that the Surplus Act, with its entry into force on 25 May, would have been, at best, retroactive and accordingly unconstitutional. Moreover, the Act delegated to executive decrees the definition of the subjects who were deemed to pay the necessary tax (charges) and the method as to their determination which provisions breached 1990 Constitution Art. 8 (now 2011 Constitution Art. I(3)) since only a statute could limit the essential contents of a fundamental right—here the right to property. The HCC held the Act unconstitutional. According to the HCC, the Surplus Act provided for an inventory to be taken to establish stock as of and on 1 May, while the earliest possible entry into force of the Act was three weeks later, which contradicted the requirements of legal certainty for failing to provide for the requisite (constitutional) fair adjustment period.360 Such legal rule was unconstitutional as it could not be known in due time and for that reason did not enable persons to avoid the negative consequences of such a rule upon its entry into force. In particular, the Surplus Act was retroactive because (i) the surplus stock was to be determined on the basis of the difference of the inventory on 1 May and the daily average of the product in 2002–2003; and (ii) transactions that had occurred after 1 January 2004 were not to be considered for the reduction of stock.361 The HCC noted in its reasoning that the Commission Regulations followed an established practice. In order to protect the stability of the market of agricultural products and to prevent speculative transactions, similar Regulations had been issued in 1985 for the Iberian accessions, and in 1994 at the time of accession of Austria, Finland and Sweden. The ECJ had received references for a preliminary ruling under Art. 267 TFEU (ex-Art. 234 EC) from Member States’ courts with regard to the validity of these Regulations as well as to the interpretation of European law.362 In Weidacher, the ECJ had established, inter alia, that the Regu lation in question had been adopted by the Commission within the scope of its competence, the measure on surplus stocks was not considered a disproportionate restriction of rights, and market players had been informed in time on the expected measures concerning the stocks through the published text of the 360 According to settled case-law: Dec. 34/1991 (VI.15) AB: ABH 1991, 170, at 173; Dec. 7/1992 (I.30) AB: ABH 1992, 45, at 48; Dec. 25/1992 (IV.30) AB: ABH 1992, 131, at 132; Dec. 28/1992 (IV.30) AB: ABH 1992, 155, at 156–158; Dec. 723/B/1998 AB: ABH 1999, 795, at 798–800; and Dec. 10/2001 (IV.12) AB: ABH 2001, 123, at 130. 361 The HCC also took into account the provision of the Budget Act, under which tax obligations could not come into effect before 45 days from promulgation. The Regulations in question required that holders of surplus stock pay taxes on goods in free circulation. The taxes collected by national authorities were to be assigned to the national budget of the new Member State. The 45-day period was therefore not respected by the operation of the Regulations. 362 Case C-30/00 William Hinton & Sons Lda v. Fazenda Pública [2001] ECR I-7511; and Case C-179/00 Weidacher v. Bundesminister für Land- und Forstwirtschaft [2002] ECR I-501.

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Accession Treaties. On the basis of the above, the HCC then went on to explain the connection between the Surplus Act and the EU Regulations as follows:363 – [The Regulations] specify obligations for the new Member States rather than for their citizens, – the [Surplus Act] serves the purpose of implementing the Regulations of the European Union, – there are several references in the [Surplus Act] to the rules in the Regulations of the Union, – the provisions of the [Surplus Act] challenged in the petition do not qualify as a translation or publication of the Regulations of the Union, as they implement the aims of the Regulations by using the tools of Hungarian law. In view of the above, the question about the provisions challenged in the petition concerns the constitutionality of the Hungarian legislation applied for the implementation of the EU regulations rather than the validity or the interpretation of these rules. [Emphasis supplied.]

Thus the HCC was to review the provisions of Hungarian law and not those of the relevant Commission Regulations. This decision has been met with criticism, mainly because the HCC appears to have ‘side-stepped’ the issue of the constitutionality of the Regulations—thereby avoiding a ‘constitutional moment’ too early on in Hungary’s membership of the Union on the issue of supremacy/priority of application of European law. Uitz364 based her argument on the HCC’s rigid adherence to Dec. 30/1998 (VI.25) AB365 and a strict temporal divide between the pre- and post-accession period: as will be recalled in that Decision before accession, the rules of European law were regarded by the HCC as internal norms of another subject of international law and of an independent public law system. In Dec. 17/2004 (V.25) AB, then, the HCC emphasised that the Regulations in question had been issued by the Commission before accession and thus pushed the constitutional issue to a time before which a Regulation could have been directly applicable (or possibly enjoy direct effect in some provisions). Accordingly, at the time of their adoption, in order for the Regulations to have any legal consequences in the Hungarian legal system, parallel domestic rules had to be passed.366 She continued:367 363 ABH 2004, 291, at 297. 364 R. Uitz, “EU Law and the Hungarian Constitutional Court: Lessons from the First Postaccession Encounter,” in W. Sadurski, J. Ziller & K. Zurek (eds.), Après Enlargement: Legal and Political Responses in Central and Eastern Europe, Robert Schuman Centre, Florence (2006), 41, at 48–50. 365 ABH 1998, 220. 366 Such a position is evident from Harmathy, J. speaking extrajudicially when, commenting on the Decision, he described the function of the Hungarian bill as implementing the EC Regulations: A. Harmathy, “The Presentation of Hungarian Experience,” in A. M. Mavcic (ed.), The Position of Constitutional Courts following Integration into the EU, Proceedings of an International Conference 30 September – 2 October 2004, Bled, Slovenia (2004), 219, at 225. Available at: . Accessed 30 January 2009. Copy also on file with author. 367 Uitz (2006), at 50.

the hungarian constitutional court195 It was precisely this formalistic line-drawing that helped the Constitutional Court purposefully avoid an open confrontation with the supremacy of EU law in the case. By insisting on the pre-accession origins of the material facts, the Court placed transitional measures concerning agricultural surplus stocks passed by the European Commission within its own exclusive jurisdiction. The Constitutional Court’s decision concerned the validity of a Hungarian bill, and not of an EC regulation.

Uitz further highlighted the point that the formalistic reasoning in Dec. 17/2004 (V.25) AB went against ECJ case-law not only on the relevant transitional measures adopted by the Commission in relation to enlargement but also on the intertemporal effects of European law.368 Sajó369 was even more forthright in his criticism. Basing his arguments on Art. 288 TFEU (ex-Art. 249 EC)—the direct applicability of Regulations—and the ECJ in Commission v. Italy,370 he contended that the Regulations were part of Hungarian law irrespective of what the Surplus Act might have contained, and as to the inventory creation and surplus charge obligations, these existed as of 1 May 2004 though arguably not immediately enforceable. In order to support his contention, he referred to the ECJ in Arcosu371 which seemed to indicate that provisions of a Regulation having immediate effect might be separated from those that require national measures of application. Sajó continues:372 “Contrary to the position of the Hungarian Constitutional Court, the allegedly unconstitutional provisions are either identical with the regulations, or are within the mandate of the regulation (a matter that is anyway within the competence of the ECJ), or are to be judged in light of the existence of the regulations as binding Hungarian law as of 1 May.” Moreover, to the extent that the law contained in the Surplus Act was European law, it would probably not have been retroactive in view of the previous practice of the European Courts. He referred to Kirk373 in which the 24-day retroactivity of a Regulation was not in itself found to be void and argued, based on Unifruit Hellas,374 that the contested measure should have been foreseen in light of previous enlargements and the clear policy of the Union. In addition, he noted that as the measure intended to close a gap that enabled traders to make unjustified 368 S.L. Kaleda, “Immediate Effect of Community Law in the New Member States: Is there a Place for a Consistent Doctrine?” (2004) 10 ELJ 102–122 discusses the ECJ case-law confirming applicability of European law in legal conflicts where certain material facts occurred well before the Member State’s accession to the Union. 369 Sajó (2004), at 358. 370 Case 39/72 Commission v. Italy [1973] ECR 101, at para. 17: “Regulations are, as such, directly applicable in all Member States and come into force solely by virtue of their publication in the Official Journal of the Communities, as from the date specified in them, or in the absence thereof, as from the date provided in the Treaty.” 371 Case C-403/98 Azienda Agricola Monte Arcosu Srl v. Regione Autonoma della Sardegna [2001] ECR I-103. 372 Sajó (2004), at 358. 373 Case 63/83 R. v. Kent Kirk [1984] ECR 2689. 374 Case T-489/93 Unifruit Hellas EPE v. Commission [1994] ECR II-1201.

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profits and if the matter were clearly one of European law, then the acte clair doctrine should have been applied: himself referring to the Weidacher case,375 the retroactivity argument would have failed. The issue of actual ‘reviewing’ a Regulation was effectively avoided by the HCC although the case raised the issue of the notion of a Regulation in the Hungarian system.376 Further, as indicated previously,377 the essential contents of a fundamental right can only be limited by statute—in Dec. 17/2004 (V.25) AB, the HCC understood that the charge under the Surplus Act was a tax and taxation was to be considered as part of the fundamental right to property. In essence, the HCC did not wish to address the complicated question of whether or not a Regulation was a statute within the terms of 1990 Constitution Art. 8. Its temporal demarcation of interest for the review allowed it to skirt around the issue with alacrity, leaving this point open: however, the pull of the FCC on the HCC (as seen in Dec. 4/1997 (I.22) AB378 and Dec. 30/1998 (VI.25) AB379) is likely to see the latter one day confirming its jurisdiction in principle to review a Regulation which might infringe a funda mental right of the Constitution but doing its utmost to avoid exercising such jurisdiction.380 More recently, this approach of the HCC was also applied in Dec. 142/2010 (VII.14) AB.381 This case concerned the provisions of a 2008 national statute which had introduced a new regime of agricultural subsidies—the single payment scheme— based on the relevant EU Regulation. The HCC was called upon by the petitioners to review these provisions as they fell within the area of discretion which the Regulation left to the Member States in implementing the subsidies regime. It examined the principle of legal certainty under the 1990 Constitution and that the protection of legitimate expectations was also found in ECJ case-law,382 and conceded that the protection in the EU was comparably greater. In declaring that it was competent to review such national implementing provisions, the HCC also relied on the ECJ ruling in Delacre in which the Luxembourg Court had stated:383 375 Case C-179/00 Weidacher v. Bundesminister für Land- und Forstwirtschaft [2002] ECR I-501. 376 The HCC did not even consider recourse to the Marleasing jurisprudence (Case C-106/89 Marleasing SA v. La Comercial Internacional de Alimentacion SA [1990] ECR I-4135) and seek to interpret the Surplus Act to accord with the Regulations. 377 See above at Chapter Four, point B.4. 378 ABH 1997, 41. 379 ABH 1998, 220. 380 Thus following the case-law of FCC: Wünsche Handelsgesellschaft, 22 Oktober 1986, 2 BvR 197/83: BVerfGE 73, 339; [1987] 3 CMLR 225; and Banana Market II, 7 Juni 2000, 2 BvL 1/97: BVerfGE 102, 147; (2000) 21 HRLJ 251. 381 Dec. 142/2010 (VII.14) AB: ABH 2010, 668. 382 Case T-115/94 Opel Austria GmbH v. Council [1997] ECR II-39; Joined Cases T-466/93, T-469/93, T-473/93, T-474/93 and T-477/93 O’Dwyer v. Council [1995] ECR II-2071; Case C-376/02 Stichting “Goed Wonen” v. Staatssecretaris van Financiën [2005] ECR I-3445. 383 Case C-350/88 Société française des Biscuits Delacre v. Commission [1990] ECR I-395, at para. 32.

the hungarian constitutional court197 [A]s the Court has held, the Community institutions have a wide discretionary power in regard to the common agricultural policy which reflects the responsibilities which the Treaty imposes on them [Cases 279, 280, 285 and 286/84 Walter Rau Lebensmittelwerke v. Commission [1987] ECR 1069, at para. 34]. In particular, the Commission must be recognised as having such a margin of discretion in choosing the means necessary for carrying out its policy in its capacity as authority responsible for the management of butter stocks, in which it has to adjust its policy of aid for butter consumption to meet fluctuating market conditions.

According to the HCC, the Regulation had left it to the Member States to decide on the criteria for granting subsidies and for determining the base year to be used. On this basis, the HCC reviewed these implementing rules and found them unconstitutional. However, this approach coincidentally generally follows that of the FCC in Single Payment Intervention Act384 when, in a similar situation concerning a predecessor Regulation concerning the single agricultural payment, the German Court had ruled that margin of discretion left to the State when implementing the EC measure could allow it to review such implementing rules against domestic constitutional principles. Moreover, Dec. 17/2004 (V.25) AB continues to influence the development of the HCC’s case-law in related matters as evidenced by Dec. 744/B/2004 AB,385 in which the HCC was seised of a petition seeking a ruling of unconstitutionality and annulment of a provision of Act XXIV of 2004 on Firearms and Ammunition.386 According to s. 23 of the Firearms Act, this Act was based on Directive 91/477/ EEC387 on control of the acquisition and possession of weapons in line with the Europe Agreement. The Treaty of Accession to the European Union was promulgated by Act XXX of 2004. According to s. 2 of this Act, from the date of accession, the provisions of the original Treaties and the acts adopted by the institutions before accession were to be binding for and—under certain conditions—applicable in the new Member States. The HCC continued:388 Directives, as the so-called secondary legislation of the Union, bind the Member States to adopt, in their own processes of legislation, regulations complying with the contents of the respective Directives. Moreover, in line with Article 3 of the [1991] Directive, the Member States may, in their national legislation, adopt regulations more strict than the provisions of the respective Directives. 384 Single Payment Intervention Act, 14 Oktober 2008, 1 BvF 4/05: BVerfGE 122, 1; [2010] 2 CMLR 37, 986. 385 Dec. 744/B/2004 AB: ABH 2005, 1281. See Várnay (2007), at 430; Fazekas (2007), at 209–210; and Trócsányi & Csink (2008), at 66–67. 386 MK 2004/56. 387 Directive 91/477/EEC on control of the acquisition and possession of weapons: OJ 1991 L256/51 (as now amended by Directive 2008/51/EC: OJ 2008 L179/5). 388 ABH 2005, 1281, at 1282–1283.

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Having cited Dec. 17/2004 (V.25) AB with approval, it added:389 “Also in the present case, the HCC performed the constitutional review of the Hungarian statute based on the Directive, without affecting the validity of the Directive or the adequacy of implementation.” In this, the HCC is following the route already mapped out by the FCC in M. GmbH390 and European Arrest Warrant391 and also adhered to by the Polish CT in its own ruling in European Arrest Warrant.392 It reaffirmed its power to review national transposing legislation in Dec. 32/2008 (III.12) AB393 (discussed in detail above) when it considered the constitutionality of certain provisions of the Act transposing into Hungarian law the Agreement between the EU and Iceland and Norway on the surrender procedure between the parties, effectively extending the European Arrest Warrant procedure to these two Scandinavian States. In this case, interestingly, the HCC did not review the actual treaty but rather concentrated on the national transposing statute. This position was confirmed with respect to the Lisbon Treaty in Dec. 143/2010 (VII.14) AB394 in which, as will be recalled,395 the HCC ruled that it had the jurisdiction to examine the constitutionality of Act CLXVIII of 2007 by which Hungary had promulgated the Lisbon Treaty. Nevertheless, it was wary about actually exercising its jurisdiction with such a fundamental treaty and in fact refused to do so but did indicate the consequences of its doing so (for the future):396 “In the case though when the Constitutional Court would, through a decision, determine the unconstitutionality of such an Act, the legislator should create a situation in which the Republic of Hungary would fully meet its EU commitments without violation of the Constitution.” In this way, the HCC took into account the need for a European-friendly approach in such a situation (as underlined by 1990 Constitution Art. 6(4)397) which rejected the threefold choice proposed by the Polish CT in this circumstance, i.e., amend the Constitution, change EU law or withdraw from the EU.398 Here the HCC sought to avoid confrontation with the EU or the ECJ and proposed its own valid, pragmatic solution that attempted to exclude the possibility of withdrawal and may have indicated a preference for domestic constitutional

389 Ibid., at 1283. 390 M. GmbH v. Bundesregierung, 12 Mai 1989, 2 BvQ 3/89: (1989) 24 EuR 270; [1990] 1 CMLR 570. 391 European Arrest Warrant, 18 Juli 2005, 2 BvR 2236/04: BVerfGE 113, 273; [2006] 1 CMLR 378. 392 Dec. P 1/05, 27 April 2005: OTK ZU 2005/4A, Item 42; [2006] 1 CMLR 965. 393 ABH 2008, 334. 394 Dec. 143/2010 (VII.14) AB: ABH 2010, 698. 395 See above at Chapter Four, point E.2.d. 396 Dec. 143/2010 (VII.14) AB: ABH 2010, 698, at 703. 397 1990 Constitution Art. 6(4) read: “The Republic of Hungary contributes to achieve European unity in order to realize the liberty, the well-being and the security of the European people.” Now superseded, in similar words, by 2011 Constitution Art. E(1). 398 Dec. K 18/04, 11 May 2005: OTK ZU 2005/5A, Item 49.

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amendment (relatively more straightforward in Hungary through a two-thirds majority vote in Parliament399) than seeking to re-open an EU-level negotiated act. This was also confirmation of its pre-accession position to EU law: in Dec. 30/1998 (VI.25) AB,400 it will be recalled that the HCC ruled on the constitutionality of the national statute incorporating the EA as well as certain provisions of a government decree implementing into the domestic system the relevant Association Council Decision.401 When the HCC ruled unconstitutional those decree provisions, it was mindful of the impact of its ruling in the sphere of external relations and the continuing process of EU accession. It therefore decided to use its powers under the 1989 Constitutional Court Act402 and suspend the annulment of such provisions for 18 months, thereby giving the government the time to provide a viable solution and avoiding a legal lacuna. However, even this time was insufficient and it took a further two years beyond that deadline to furnish a satisfactory solution in both EU and Hungarian constitutional terms.403 What the delay does show, though, is a willingness on the part of the HCC to take a ‘Euro-friendly’ approach: in fact, the Polish CT subsequently used its own principle of a Europeanfriendly interpretation to elevate to a constitutional requirement to the delay the entry into force of a CT ruling impacting negatively on EU law matters.404 4. Refusals to Refer The HCC was called upon to make a reference to the ECJ in the 2010 Lisbon Treaty case405 and but refused to do so. The petitioner had contended that the new rules and mechanisms of the Lisbon Treaty jeopardised the existence of the Republic of Hungary as an independent, sovereign State, governed by the rule of law. The HCC 399 1990 Constitution Art. 24(2): “A majority of two-thirds of the votes of the Members of Parliament is required to amend the Constitution.” This provision has been replaced by 2011 Constitution Art. S(2). 400 ABH 1998, 220. 401 EC-Hungary Association Council Dec. 2/96 adopting the rules necessary for the implementation of Article 62 (1) (i), (1) (ii) and (2) of the Europe Agreement: OJ 1996 L295/29. 402 1989 Act, s. 43(4). 403 The ultimate solution was to replace this Association Council Decision with another, EC-Hungary Association Council Dec. 1/2002 repealing and replacing Association Council Dec. 2/96 adopting the rules necessary for the implementation of Article 62(1)(i), (1)(ii) and (2) of the Europe Agreement: OJ 2002 L145/16. This was implemented into the Hungarian system by Act X of 2002 Introduced on the Basis of EA Art. 62(3) to Terminate the Effectiveness of Association Council Dec. 1/96 and to Bring into Force Association Council Dec. 1/2002 (MK 2002/34/I) which, under s. 4, authorised the government to promulgate by decree, in a specific order, the official Hungarian translation of the European competition norms listed in the Annex (both Regulations and Commission Notices); to act concerning the review of the Annex; and to promulgate by decree, according to the amendments, the official Hungarian translation of the new European competition norms entered in the Annex. 404 See below at Chapter Five, point E.2.d. 405 Dec. 143/2010 (VII.14) AB: ABH 2010, 698.

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consequently used the acte clair theory and decided that it did not need to make an Art. 267 TEU reference to the ECJ since it was clear from the petitioner’s submissions that they had been based on an inadequate understanding of the Lisbon Treaty. According to the acte clair theory, as defined in CILFIT,406 the highest court is not obliged to refer if the question has not yet been answered in ECJ case-law but the answer to that question is beyond all reasonable doubt. Before it comes to the conclusion that such is the case, the relevant domestic court has to be convinced that the matter is equally obvious both to the courts of the other Member States and to the ECJ. In this respect, the national court should bear in mind that: (i) the interpretation of a provision of European law involves a comparison of the different language versions of the provision concerned; (ii) terms and concepts in European law do not necessarily have the same meaning as the laws of the various Member States; and (iii) every provision of European law should be interpreted in the light of European law as a whole, taking into consideration its objectives and its state of development at the moment of application of the provision in question. In coming to its decision not to refer, the HCC had evidently been guided by the FCC407 and the Czech Constitutional Court408 in their own decisions on the constitutionality of the Lisbon Treaty as the HCC mentions them in its own ruling as well as the pending petition before the Polish CT.409 In support of its decision not to refer because Hungary (and the Member States) remained sovereign and independent, the HCC cited new Art. 50 TEU on the right to withdrawal of Member States from the EU, an argument which the FCC had also made in its own Lisbon ruling410 in respect of the continuance of national sovereignty. Following the theory of acte clair, the HCC was able to rebut the petitioner’s submissions by making reference to other commonly-known matters which resulted in changes to the EU consequent upon the coming into force of the Lisbon Treaty: e.g., the Charter of Fundamental Rights became a legally-binding document; and the role of national parliaments in decision-making was significantly enhanced. Taken together, these indicated that the petitioner’s submissions on the alleged dangers of the Lisbon Treaty were unfounded.

406 Case 283/81 Srl CILFIT v. Ministero della Sanità [1982] ECR 3415, at paras. 16–20. 407 Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267; [2010] 3 CMLR 13, 276. 408 Czech Constitutional Court in its two Lisbon rulings: (1) Czech Const. Ct. Decision of 26 November 2008: Case No. Pl. ÚS 19/08; and (2) Czech Const. Ct. Decision of 3 November 2009: Case No. Pl. ÚS 29/09. 409 Dec. K 32/09, 24 November 2010: OTK ZU 2010/9A, Item 108. 410 Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267, at 349–350 and 395–396; [2010] 3 CMLR 13, 276, at 335 and 367–369.

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The HCC’s relationship with European law in its early decision-making stages proved to be both hesitant and cautious.411 Even the elucidating Opinions of Kovács, J. (sometimes with another judge concurring) could not make up for this shortfall and left the researcher having to provide an interpretation somewhat dependent on hints and suggestions than unambiguous judicial guidance and thought, an exercise in textual exegesis of rather Biblical proportions. Such reticence might indeed have resulted from the reaction of a court in a recently-acceded Member State encountering, for the first time, such judicial atmosphere in this brave new world; and linked to the way in which the HCC then regarded itself as the guarantor of the 1989/1990 constitutional settlement. The German FCC enjoys a much longer perspective in this respect and took many years to come to terms with the full implications of Union membership. Its process of ‘dialogue’ or ‘co-operation’ is still ongoing (cf. Maastricht412 and Lisbon413) and, without doubt, the HCC is seeking to find its own way to its relationship with EU law, guided by the German model. The impact of this model on the HCC has been profound, dating from before the actual operation of the HCC and throughout the development of its transition case-law. Such impact has also been felt in the HCC’s approach to EU law where, even before accession, Dec. 4/1997 (I.22) AB expressly ‘adopted’ the then-subsisting FCC orthodoxy on European treaty reform, European secondary legislation and their subjection to domestic constitutional review. Since accession, the HCC has impliedly followed this approach but has tended to be more reticent and to avoid any outright conflict with the ECJ. The HCC’s general approach to the issue of EU law early on seemed to be an incongruous interplay of shadows and mirrors, a sense of pale images and even paler reflections amounting to tricks of the light through opaque glass. Indeed, it was not helped by the wording of the initial Europe clause, 1990 Constitution Art. 2/A, a matter which has been repeated in 2011 Constitution Art. E. This lack of substance and clarification has had a negative impact on the perception of the HCC. Granted the Hungarian constitutional jurisdiction might not have been designed to allow for the submission of the types of cases on EU law as had happened before its German and Polish counterparts, but in those cases which came before it, the HCC initially eschewed addressing such principles as priority of application of EU law, direct effect and ECJ references.

411 Such opinion is confirmed, e.g., by Blutman & Chronowski (2011), at 347–348; and Varju & Fazekas (2011), at 1983–1984. 412 Maastricht, 12 Oktober 1993, 2 BvR 2134 und 2159/92: BVerfGE 89, 155; [1994] 1 CMLR 57. 413 Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267; [2010] 3 CMLR 13, 276.

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Nevertheless, an almost imperceptible change started to occur in the HCC in 2008 in response to further dealing with European integration. Since that time, in a string of cases, the HCC has underlined its wish, in the main, to ‘deconstitutionalise’ the issue of EU law,414 thereby leaving the ordinary courts free to follow it (including the ECJ’s interpretations).415 Again, more recently, the HCC has turned towards the practice of the FCC (and the Polish CT) with its acceptance in Dec. 6/2011 (II.3) AB416 of the need for a Euro-friendly interpretation of domestic law (and, of course, implicit recognition of Marleasing417): Bragyova has argued418 that the case itself raises this principle of interpretation to the level of a constitutional value, carrying with it the necessary requirement to interpret subconstitutional national legal rules in a Euro-conform manner but also the Constitution itself, a point which is still to exhibited in practice. From its Lisbon ruling in Dec. 143/2010 (VII.14) AB,419 itself clearly inspired by the FCC in Lisbon, the HCC has signalled an intention to concentrate only on the sensitive cases of a priori review of amending European treaties. This is evidenced by its strong invocation to the President or the Government to use their powers under the 1989 Constitutional Court Act, s. 1(a)420 and petition the HCC for an a priori review of important amendments to the founding European treaties. It therefore appears clear that the HCC has recognised its jurisdiction to conduct not only an ultra vires review with respect to the protection of the limits of the powers conferred on the Union by Hungary (which has its original foundation in the FCC ruling in Maastricht and recently reaffirmed in Lisbon), but also a constitutional identity review (though less well articulated that the FCC in Lisbon). The preservation of the constitutional identity of the state stems from its own understanding of the relationship between Art. 2(1) and (2) and Art. 2/A of the 1990 Constitution, viz., that the former cannot be emptied of their content vis-à-vis the latter. If this interplay is maintained by the HCC under the new provisions, 2011 Constitution Art. B and Art. E, this would seem to suggest an essential core of sovereignty that cannot be touched by European integration without leading to the infringement of the principles of the democratic state under the rule of law and popular sovereignty. Despite the acknowledged influence of the FCC, the HCC’s ruling in Lisbon was diminutive in comparison although its relative size compares favourably with that of the Austrian Constitutional Court, rejecting a petition (on technical grounds) 414 Thereby following the ECJ in Case 106/77 Amministrazione delle Finanze dello Stato v. Simmenthal SpA [1978] ECR 629. 415 Varju & Fazekas (2011), at 1963–1976. 416 Dec. 6/2011 (II.3) AB: ABH 2011, 31. 417 C-106/89 Marleasing SA v. La Comercial Internacional de Alimentacion SA [1990] ECR I-4135. 418 Bragyova (2012), at 342–343. 419 Dec. 143/2010 (VII.14) AB: ABH 2010, 698. 420 Now 2011 Constitutional Court Act, s. 23.

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seeking to challenge the constitutionality of the Lisbon Treaty.421 As with the FCC and the Honeywell422 and Euro-crisis cases,423 no doubt future decisions will see how this reasoning of the HCC is put into practice within the context of the 2011 Constitution. Nevertheless, based on previous experience, the similarity in wording between the relevant Europe clauses in the 1990 and 2011 Constitutions and the amended jurisdiction of the HCC, it is not thought that there will be any radical change in the HCC’s approach to EU law in the near future.

421 VfGH SV 1/10, 12 Juni 2010: (2010) 37 EuGRZ 493. 422 Honeywell, 6 Juli 2010, 2 BvR 2661/06: BVerfGE 126, 286; [2011] 1 CMLR 33, 1067. 423 See above at Chapter Three, points E.2.e.-f.

CHAPTER FIVE

THE POLISH CONSTITUTIONAL TRIBUNAL AND EUROPEAN LAW: A CASE OF “SOVEREIGNTY REGAINED”? Background Together with Hungary, Poland was at the forefront in the political and systemic changes experienced in Central Europe in the late 1980s and early 1990s. While democracy initially returned to Hungary through contested elections, that in Poland occurred as a result of political compromise.1 When the trade union/political movement, Solidarity, headed by Lech Wałęsa, sat down at Round Table negotiations with communist government officials in the spring of 1989, the idea of free elections was inconceivable. By the close of the following year, Wałęsa had been elevated to the post of President in new direct elections. Free parliamentary elections in June 1989 (in which Solidarity supporters gained a majority in the Senate) and in October 1991 ousted the Communist Party from its previous dominant position in government.2 Like Hungary, Poland signed an Agreement on Trade and Commercial and Economic Co-operation with the EEC in September 19893 and this was subsequently followed (and superseded) by a Europe Agreement, signed on 16 December 19914 between the EEC and its Member States on the one hand and Poland on the other. This Europe Agreement was finally ratified by the President on 20 October 19925 but, in view of all the necessary EU Member State ratifications,6 it did not enter into domestic force until 1994.7 EU accession negotiations with Poland were

1 J. Gross, “Poland: From Civil Society to Political Nation” in I. Banac, Eastern Europe in Revolution, Cornell University Press, Ithaca and London (1992), at 60. 2 R.R. Ludwikowski, “Constitution Making in the Countries of Former Soviet Dominance: Current Development” (1993) 23 Ga. Jo. Intl. & Comp. Law 155, at 211–213. 3 Agreement between the EEC and the People’s Republic of Poland on trade and commercial and economic cooperation: OJ 1989 L339/1. 4 Before the EA came into force, the trade and trade-related matters in certain chapters of the EA were put into force by an Interim Agreement on 1 March 1992: OJ 1992 L114/2. 5 According to the 1952 Constitution (as amended), Art. 32 provided that ratification of international treaties—having financial consequences or implying amendments to statutes—required the authorisation of both Houses of Parliament. The necessary statute authorising ratification was adopted by the Sejm on 4 July 1992 and subsequently accepted by the Senate. On 31 July 1992, the President signed the authorising statute, Act of 4 July 1992: Dz. U. 1992, No. 60, Item 302. 6 Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Poland, of the other part: OJ 1993 L348/2. 7 Dz. U. 1994, No. 11, Item 38.

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opened at the same time as those with Hungary: both States eventually entered the Union on 1 May 2004.8 As with the two previous Chapters, this one also begins with a description of constitutional review, concentrating on the main proceedings by which European law issues could be raised before the Polish Constitutional Tribunal (‘CT’) (A.). The work then discusses the essential core of sovereignty, i.e., that part of a State’s existence without which it would cease to be: while the Polish Constitution has an express provision providing for its being the supreme law of the land, the CT has sought to set out the content of an essential core through constitutional interpretation, inspired by reference to the German model (B.). The Chapter carries on through examination of the issue of transfers of sovereignty in the face of EU accession, providing a constitutional matrix within which the CT functions. The emphasis of this research, as before, is the case-law of the CT. In this respect, the CT has been more judicially active than its Hungarian counterpart in negotiating the extent of the impact of European law domestically. Again, this Chapter will concentrate on the CT’s acceptance of certain principles and matters regarding European law: supremacy or priority of application; direct effect; as well as references to the European Court of Justice (D.). However, it also looks at the limits the CT has put on its acceptance of European law, basically its defence of the essential core of sovereignty; its review of national legislation transposing European law into the domestic system; as well as refusals, if any, to refer questions to the ECJ (E.). The Conclusion seeks to discern the extent both to which the CT has attempted to maintain its judicial dialogue with the ECJ and to which it might have been influenced in its approach through following its German cousin. A. Constitutional Review 1. Introduction The CT,9 like the 1952 Constitution,10 was a creation of the Communist regime11 inserted into that Constitution by Art. 33a,12 thereby providing the legal basis for 8 Treaty of Accession to the European Union: 2003 OJ L236/01. 9 M. Brzezinski & L. Garlicki, “Judicial Review in Post-Communist Poland: The Emergence of a Rechtsstaat?” (1995) 31 Stanford Jo. Intl. Law 13, at 21–22; A. Gwiżdż, “Trybunał Konstytucyjny [The Constitutional Tribunal]” 1983/12 PiP 3. 10 The current constitution of Poland dates from 1997 and replaced the amended 1952 Constitution, modelled on the Soviet Union Constitution of 1936: M. Exner, “Recent Constitutional Developments in Poland” (1991) 42 ÖZöRV 341, at 342. The 1952 Constitution had been variously amended after the change of regime, most particularly by Constitutional Act of 17 October 1992 on the Mutual Relations between the Legislative and Executive Institutions of the Republic of Poland and on Local Government, known as the ‘Little’ or ‘Small Constitution’: Dz. U. 1992, No. 84, Item 426. It focused on checks and balances between the Parliament, the President and the Government as well as the structure and competencies of autonomous local government, while leaving aside other issues for regulation to the new constitution: R.R. Ludwikowski, “Constitution Making in the

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the setting up of a constitutional tribunal and, ultimately, to the passing of the 1985 Constitutional Tribunal Act13 (with its work commencing from the start of 198614). Despite its achievements in the transition period,15 limitations to its jurisdiction dating from its original establishment were finally addressed by the 1997 Constitution and the enactment of the 1997 Act on the Constitutional Tribunal.16 2. Types of Constitutional Review According to the 1997 Constitution, Art. 188 and the 1997 Act, s. 2, the CT may review, inter alia, the conformity of statutes to the Constitution17 as well as the Countries of Former Soviet Dominance: Current Development” (1993) 23 Ga. Jo. Intl. & Comp. Law 155, at 219–221. 11 M. Brzeziński, “The Emergence of Judicial Review in Eastern Europe: The Case of Poland” (1993) 41 AJCL 153, at 158. 12 “1. The Constitutional Tribunal shall adjudicate upon the conformity to the Constitution of laws and other normative acts enacted by main and central State organs, and shall formulate universally binding interpretation of the laws. 2. Judgments of the Constitutional Tribunal on the non-conformity of laws to the Constitution are subject to examination by the Sejm. 3. Judgments of the Constitutional Tribunal on the non-conformity of other normative acts to the Constitution or laws are binding. The Constitutional Tribunal shall apply measures to remove any non-conformity.” 13 Ustawa z dnia 29 kwietnia 1985 o Trybunale Konstytucyjnym [Constitutional Tribunal Act of 29 April 1985], Dz. U. 1985, No. 22, Item 98, at 245. The procedure and operation of the CT was governed by a separate Act: Uchwała Sejmu Rzeczypospolitej Ludowej z dnia 31 lipca 1985 w sprawie szczegółowego trybu postępowania przed Trybunałem Konstytucyjnym [Parliament Resolution of 31 July 1985 on the Special Mode of Proceedings Before the Constitutional Tribunal], Dz. U. 1985, No. 39, Item 184, at 493. 14 For further discussion of the CT generally see, e.g., W. Sokolewicz, “Kontrola konstytucyjności prawa w państwie socjalistycznym. Zagadnienie form organizacyjnych [Review of Constitutionality of Law in a Socialist State. The problem of Organizational Forms],” in K. Działocha et al. (eds.), Konstytucja w społeczeństwie obywatelskim. Księga pamiątkowa ku czci prof. Witolda Zakrzewskiego [The Constitution in a Civil Society. Commemorative Homage to Prof. Witold Zakrzewski], Krajowa Agencja Wydawnicza, Kraków, (1989), at 187ff; W. Sokolewicz, “The Commissioner for Civic Rights Protection and Protection of Human Rights by the Constitutional Tribunal in Poland: Legal Regulations and Practice,” in AAVV, Democracy and the Rule of Law: Proceedings of the NorwegianPolish Seminar in Warsaw, 4 June 1980 [Demokrati & rettsstat: Innlegg pd norsk-polsk seminar i Warszawa, 4 juni 1990], Det KgI. Utenriksdepartement, Oslo (1991), at 70ff; See also AA.VV., Constitutional Court in Poland in a Period of State System Transformation, Trybunał Konstytucyjny, Warszawa (1993). 15 S. Oliwniak, Wpływ orzecznictwa Trybunału Konstytucyjnego na system prawa w latach 1985– 1997 [The influence of rulings of the Constitutional Tribunal on the system of law in the years 1985–1997], Temida 2, Białystok (2001); and L. Garlicki, “Das Verfassungsgericht und das Parlament. Die Zurückweisung von Entscheidungen des polnischen Verfassungsgerichtshofs durch den Sejm,” in M. Hofmann & H. Küpper (eds.), Kontinuität und Neubeginn. Staat und Recht in Europa zu Beginn des 21. Jahrhunderts (FS Brunner), Nomos Verlag, Baden-Baden (2001), at 357–364. 16 Ustawa z dnia 1 sierpnia 1997 r. o Trybunale Konstytucyjnym [Act of 1 August 1997 on the Constitutional Tribunal]: Dz. U. 1997, No.102, Item 643. See generally J. Oniszczuk, Konstytucja Rzeczpospolitej Polskiej w orzecznictwie Trybunału Konstytucyjnego [The Constitution of the Republic of Poland in the rulings of the Constitutional Tribunal], Zakamycze, Kraków (2000); G. Brunner & L. Garlicki, Verfassungsgerichtsbarkeit in Polen, Nomos Verlag, Baden-Baden (1999). 17 1997 Constitution, Art. 188(1) and 1997 CT Act, s. 2(1).

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conformity of a statute to ratified international treaties, the ratification of which requires prior approval granted by statute.18 Under Constitution Art. 191(1), the right of initiative is treated very broadly; the following political and judicial actors have standing to seek constitutional review of statutes: the President of the Republic, the Marshal of the Sejm, the Marshal of the Senate, the Prime Minister, 50 Deputies, 30 Senators, the First President of the Supreme Court, the President of the Supreme Administrative Court, the Chief Public Prosecutor, the President of the Supreme Chamber of Control and the Commissioner for Citizens’ Rights [Ombudsman].

Further, at the request of the President of the Republic, the CT has the competence to rule on the conformity to the Constitution of a bill prior to his signing it. The President may not, however, refuse to sign a bill which has been judged by the CT as conforming to the Constitution.19 According to the 1997 Act, s. 42 the CT shall, while adjudicating on the conformity of the statute to the Constitution, examine both the contents of the said statute as well as the power and observance of the procedure required by the relevant legal provisions to promulgate the statute. In addition to such abstract review, the ordinary courts have the standing to launch an incidental (concrete) review before the CT. According to Constitution Art. 193, any court which has doubts about the conformity to the Constitution20 of the provision of a statute (or other normative act) which will form the basis of the judgment in the case pending before that court, it has the competence to refer the matter to the CT.21 According to 1997 Constitution Art. 188 and the 1997 Act, s. 2, the CT may also review the conformity of international treaties to the Constitution22 and in so doing it is to examine both the contents of the treaty as well as the power and observance of the procedure required by the relevant legal provisions to con clude and ratify the treaty.23 Such review may be conducted at the request of the same political and judicial actors empowered to request constitutional review of

18 1997 Constitution, Art. 188(2) and 1997 CT Act, s. 2(2). 19 1997 Constitution, Art. 122(3) and 1997 CT Act, s. 2(2). 20 As well as a ratified international treaty or a statute. 21 The CT is ever mindful of its role in the Polish system in this respect and has guarded its exclusive jurisdiction with respect to the review of statutes: A. Mączyński, “Bezpośrednie stosowanie konstytucji przez sądy [Direct Application of the Constitution by the Courts]” 2000/5 PiP 3. In Dec. P 4/99 (31 January 2001: OTK ZU 2001/1, Item 5) and Dec. SK 18/00 (4 December 2001: OTK ZU 2001/8, Item 256), the CT ruled that ordinary courts may not independently refuse to apply statutes claiming their unconstitutionality. Such view is generally shared by the Supreme Court and the Supreme Administrative Court but the actual case-law on this is not consistent: L. Garlicki, “The Experience of the Polish Constitutional Court,” in W. Sadurski (ed.), Constitutional Justice, East and West, Kluwer Law International, The Hague/London/New York (2002), chap. 11, 265, at 275. 22 1997 Constitution, Art. 188(1) and 1997 CT Act, s. 2(1). 23 1997 CT Act, s. 42.

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statutes under Constitution Art. 191(1). Further, the President of the Republic has the power to request the CT to rule on the conformity to the Constitution of an international treaty prior to ratification.24 Lastly, under Art. 19325 any court may refer a question of law to the CT as to the conformity of a normative act to the Constitution, a ratified international treaty or statute, if the answer to such question of law will determine the issue pending before such court. 3. Constitutional Complaints (Fundamental Rights Protection) A further enhancement of the CT’s role under the 1997 Constitution is the possibility of adjudicating complaints concerning constitutional infringements,26 as specified in Art. 79(1):27 In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Tribunal for its judgment on the conformity to the Constitution of a statute or another normative act upon which basis a court or organ of public administration has made a final decision on their freedoms or rights or on their obligations specified in the Constitution.

Constitution Art. 191(6) permits anyone whose rights are infringed according to Art. 79(1) to bring a constitutional complaint before the CT. Yet, under Art. 81, no constitutional complaint is permitted in cases where economic rights28 have been violated, even if these rights are listed in the Constitution.29 The narrow framing of the terms of the constitutional complaint30 thus excludes alleged violations of constitutional provisions not concerned with rights and freedoms31 as well as of provisions of international treaties.32 24 1997 Constitution, Art. 133(2) and 1997 CT Act, s. 2(2). 25 1997 CT Act, s. 3. 26 1997 Constitution, Art. 188(5) and 1997 CT Act, s. 2(4). 27 Paragraph 2 of this Article excludes its application to the rights in Art. 56, viz., rights of asylum and refugee status for foreigners. 28 These are found in 1997 Constitution Arts. 65(4) (minimum wage); 65(5) (full employment); 66 (health and safety at work, paid holidays, working time); 69 (social support for disabled persons); 71 (social assistance for families, single parents and mothers); 74 (environmental protection), 75 (housing); and 76 (consumer protection). The inclusion of such rights has been regarded as problematic, W. Sadurski, “Rights and Freedoms under the New Polish Constitution: Reflections of a Liberal” (1997) St. Louis-Warsaw Transatlantic LJ 91, at 97–98. 29 1997 Constitution, Chapter II, Economic, Social and Cultural Rights and Freedoms, Arts. 64–76. 30 Compared to that under the German Constitution: see G. Brunner & L. Garlicki (eds.), Verfassungsgerichtsbarkeit in Polen, Nomos Verlag, Baden-Baden (1999), at 49–50. 31 Controversy has surrounded the question as to whether or not a constitutional complaint may be based exclusively on infringement of principles such as those of equality or of the rule of law. In Dec. SK 10/01 (24 October 2001: OTK ZU 2001/7, Item 225), the CT declared that a complaint based solely on the breach of the principle of equality was inadmissible. 32 In a constitutional complaint, it is not possible to challenge the conformity of the provision of a statute to an international treaty, e.g., the ECHR, since Constitution Art. 79(1) indicates that a

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Further, constitutional complaints are not to deal with court judgments or administrative decisions, but only with the statutes on which a particular decision has been made. Thus, a complaint could not be directed against a statute in abstracto as unconstitutional: this includes not only situations where harm was sustained because of an erroneous law but also where citizens consider a particular provision as potentially dangerous to themselves regardless of whether the citizens are affected by its existence. Consequently, there must be an actual breach of the relevant constitutional right or freedom. Citizens can lodge a constitutional complaint only in connection with a final decision in a case; they therefore have first to exhaust all available avenues of appeal. Moreover, citizens cannot themselves raise a constitutional complaint against court inaction, even though they are entitled to judgments without unjustifiable delay.33 B. Essential Core of Sovereignty 1. Introduction According to 1997 Constitution Art. 8(1), the Constitution is “the supreme law of the Republic of Poland” and occupies the highest place in the system of the sources of law34 and accords all its provisions the same legal status. It thus contains no norms of the most fundamental nature which cannot be changed by means of amending the Constitution. In other words, there are no provisions similar to the 1949 German Constitution Art. 79(3) that prohibit changes to certain clauses. The same is true for amendments to the provisions that deal with fundamental human rights—no such rights are unalterable. Yet certain constitutional provisions remain subject to a different, more complex amendment procedure which includes the possibility of a referendum. These provisions are to be found in Chapter I (general principles), Chapter II (the rights and freedoms of individuals) and Chapter XII (constitutional amendment). It still follows though that the 1997 Constitution maintains a flexibility of amendment not afforded by the German Constitution but which, as will be seen later, has

constitutional complaint is a measure aimed at protecting constitutional rights and freedoms: Dec. SK 32/03, 17 May 2004: OTK ZU 2004/5A, Item 44; confirmed in Dec. SK 26/08, 5 October 2010: OTK ZU 2010/8A, Item 73. 33 1997 Constitution Art. 45. 34 Unlike the period 1992–1997 when the 1952 Constitution (as amended) and the 1992 Small Constitution were in force: see K. Działocha, “The Hierarchy of Constitutional Norms and Its Function in the Protection of Basic Rights” (1992) 13/3 HRLJ 100 However, the 1997 Constitution does make reference to a higher law, e.g., in the Preamble and Art. 30, in this case the inviolability of the inherent and inalienable dignity of the person which constitutes a source of freedoms and rights of persons and citizens.

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allowed the CT to develop its own understanding of an essential core of sovereignty, protected from infringement by European law. As with the situation in Hungary, the prospects of (future) EU accession acted as a catalyst in discussion of the notion of sovereignty in Poland.35 Constitution Art. 90(1) does not refer to the limitation of sovereignty or to the transfer of sovereignty but rather to the politically neutral formulation of the transfer or delegation of competences. In Poland, the issue of sovereignty plays an exceptionally large role,36 in consideration of historical experiences; the Preamble to the 1997 Constitution reads in part: “Having regard for the existence and future of our Homeland, which recovered, in 1989, the possibility of a sovereign and democratic determination of its fate….” Indeed sovereignty as a principle is strongly prominent in the Constitution37 and the effect on it with EU accession was indicated by Wójtowicz38 in the sense that— in the areas, which are laid down in the basic treaties, Poland will lose the competence for independent, sovereign action and corresponding legislative, executive and judicial decisions will be made through the [Union] organs. Independent of this, whether one speaks of the transfer of competences or of the transfer of rights with regard to such realisation, it is a question essentially of the limitation of the sovereignty of the state.

In academic literature, however, other viewpoints could be found, calling for a new definition of sovereignty39 and also considering the transfer of competences 35 See M. Wyrzykowski, “EU Accession in Light of Evolving Constitutionalism in Poland,” in G. Bermann & K. Pistor (eds.), Law and Governance in an Enlarged Union, Hart Publishing, Oxford and Portland (OR) (2004), chap. 19, 437, at 438–440; and generally, W. Czapliński, I. Lipowicz, T. Skoczny & M. Wyrzykowski, Suwerenność i integracja europejska, Centrum Europejskie UW, Warszawa (1999). For information regarding the classic concept of sovereignty and the intensive debate over the extent of the loss of Polish sovereignty once Poland acceded to the EU then see A. Wasilkowski “Uczestnictwo w strukturach europejskich a suwerenność państwowa [State Sovereignty and Participation in European Institutions]” 1996/4–5 PiP 15–23. 36 J. Menkes, “Konstytucja, suwerenność, integracja – spóźniona (?) polemika [Constitution, sovereignty, integration – delayed (?) polemic],” in C. Mik (ed.), Konstytucja Rzeczypospolitej Polskiej z 1997 roku a członkostwo Polski w Unii Europejskiej [The Constitution of the Republic of Poland 1997 and membership of Poland in the EU], TNOiK, Toruń (1999), at 89ff. 37 L. Garlicki, Polskie prawo konstytucyjne [Polish Constitutional Law], 5th ed., Liber, Warszawa (2001), at item 46; P. Sarnecki, Prawo konstytucyjne Rzeczpospolitej Polskiej [Constitutional Law of the Republic of Poland], 3rd ed., C.H. Beck, Warszawa, (1999), at 122–130. 38 K. Wójtowicz, “Verfassungsmäßige Grundlagen des Beitritts Polens zur Europäischen Union,” in M. Maciejewski (ed.), Społeczeństwo w przełomie. Polska, Niemcy i Unia Europejska. Die Gesellscaft in der Wende. Polen, Deutschland und die Europäische Union, Wydawnictwo Uniwersytetu Wrocławskiego, Wrocław (1999), at 118; M. Wyrzykowski, “Europäische Klausel – Bedrohung der Souveränität? (Souveränität und das Ratifikationsverfahren für die EU-Mitgliedschaft Polens), Forum Constitutionis Europae Series No. 6/98, Walter-Hallstein-Instituts für Verfassungsrecht, Humboldt-Universität, Berlin (1998). 39 A. Wasilkowski, “Uczestnictwo w strukturach europejskich a suwerenność państwowa [Participation in the European structures and state’s sovereignty]” 1996/4–5 PiP 15, at 17.

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as no longer being able to be judged as a limiting factor of state sovereignty but rather as an inseparable part of sovereignty.40 Consequently, it was argued, that states now no longer describe themselves as merely a group of equal legal subjects but as an organised community, a society with its own constitution and legal system.41 2. State Based on the Rule of Law The original post-transition rule-of-law clause was inserted into the 1952 Constitution by one of the December 1989 amendments.42 The new Art. 1 of the 1952 Constitution read: “The Republic of Poland shall be a democratic state, ruled by law and implementing principles of social justice.” This provision—with the same wording—is now contained in Art. 2 of the 1997 Constitution.43 In its early case-law,44 the CT very quickly decided that the principles set out in 1952 Constitution Art. 1 had binding authority and thus provisions of statutes that violated such principles could be annulled by the CT.45 Subsequently, in Dec. K 7/90,46 the CT was seised of a petition challenging the provisions of a statute on the grounds that they violated the principle of non-retroactivity and the principle of vested rights. In its judgment, the CT clearly recognised that both principles enjoyed constitutional rank under the Rechtsstaat clause.47 The CT continued to develop this line of case-law, transforming the general rule of law principle into more specific standards, formulating new ones and imposing them on the legislature. In Dec. U 6/92,48 the CT ruled that: “a norm restricting civil rights in a sub-statutory legal act, such as by a resolution of the Sejm, constitutes a

40 A. Wentkowska, “Wpływ zasad wspólnotowego porządku na suwerenność państwa polskiego [Influence of community principles on sovereignty of the Polish state],” in C. Mik (ed.), Konstytucja Rzeczypospolitej Polskiej z 1997 roku członkostwo Polski w Unii Europejskiej, TNOiK, Toruń (1999), at 115. 41 Wasilkowski (1996), at 18. 42 Its importance was underlined by M. Pietrzak, “Demokratyczne państwo prawne [Democratic State of Law],” Gazeta Prawnicza, 16 May 1989, at 9. 43 See generally, Sarnecki (1999), at 30–32; L. Garlicki & K. Gołyński, Polskie prawo konstytucyjne. Wykłady [Polish Constitutional Law. Lectures], Liber, Warszawa (1996), at 47–54; W. Skrzydło, Polskie prawo konstytucyjne [Polish Constitutional Law], Verba, Lublin (2003), at 109–111. 44 J. Nowacki, “Klauzula ‘państwo prawne’ a orzecznictwo TK [The Clause of a ‘Democratic State under the Rule of Law’ and Judgments of the Constitutional Tribunal],” in E. Zwierzchowski (ed.), Prawo i kontrola jego zgodności z konstytucją [The Law and Control of its Conformity with the Constitution], Wydawnictwo Sejmowe, Warszawa (1997), at 161–174; E. Morawska, Klauzula państwa prawnego w Konstytucji Rzeczpospolitej Polskiej na tle orzecznictwa Trybunału Konstytucyjnego [The clause of the rule of law in the Constitution of the Republic of Poland and rulings of the Constitutional Tribunal], Dom Organizatora, Toruń (2003). 45 Dec. K 1/90, 8 May 1990: OTK ZU 1990, Item 2. 46 Dec. K 7/90, 22 August 1990: OTK ZU 1990, Item 5; OTK 1990, 42. 47 L. Garlicki, “Necessity and Functions of the Constitution,” in R. Bieber & P. Widmer (eds.), The European constitutional area, Vol. 28 Publications of the Swiss Institute of Comparative Law, Schulthess Polygraphischer Verlag, Zürich (1995), 25, at 31. 48 Dec. U 6/92, 19 June 1992: OTK ZU 1992, Item 13; OTK 1992/I, 196.

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violation against Constitution Art. 1.” According to the CT, the criterion of sufficient specification denoted the precise definition of the permissible scope of interference as well as the manner in which the entity, whose rights and liberties were being limited and restricted, might protect itself against unjustifiable violation of its ‘personal’ interests. In a democratic state under the rule of law, every form of infringement by a state body on a personal interest had to be linked to potential review of the expedience of the actions taken by the state body. Garlicki was able to observe49 that, by early 1995, the CT had developed at least five important aspects of the rule of law clause:50 (a) the supremacy of statutes over government decrees; (b) the prohibition of retroactive laws; (c) the protection of vested rights; (d) the individual’s right to judicial protection; and (e) the requirement of precision in drafting legislation.51 In Dec. S 6/91,52 the CT had also made reference to the fact that, “under a democratic state ruled by law, criminal law must be founded on at least two principles: forbidden actions have to be defined by law (nulla crimen, nulla poena sine lege) and the retroactive effect of law introducing criminal punishment or making it more severe is banned.”53 Moreover, the CT has observed the intimate connection between the principle of legality54 and the rule of law.55 In Dec. U 11/97,56 it noted: “Refusal to comply 49 Garlicki (1995), at 31. 50 See, e.g., Dec. K 9/92, 2 March 1993: OTK ZU 1993, Item 6; OTK 1993, I, 60; Dec. K 14/92, 19 October 1993: OTK ZU 1993, Item 35; Dec. K 12/94, 12 June 1995: OTK ZU 1995, Item 2. In Dec. U 11/97, 27 November 1997: OTK ZU 1997/5–6, Item 67, the CT expressly summarised and restated its previous rulings on the components of the principle of the rule of law in 1952 Constitution Art. 1 in the context of acquired rights and legal certainty. 51 In Dec. Kp 3/08, 18 February 2009: OTK ZU 2009/2/A, Item 9, at paras. III.6.1-III.6.2, the CT noted that the “specificity of law” covered three criteria: (i) precision of a legal regulation; (ii) clarity of a provision; and (iii) its legislative correctness. 52 Dec. S 6/91, 25 September 1991: OTK ZU 1991, Item 34; OTK 1991, 290. 53 Safjan, in talking about the role of the CT in the transition, has observed: “The Constitutional Tribunal justly recognized that the idea of a state ruled by law denotes the subjection to the law of all state authorities, including the legislative authority, and it showed that certain minimum standards of good law are implicitly inherent in the principle of a state ruled by law. [Emphasis in original.]”: M. Safjan, “The Role of the Polish Constitutional Tribunal in the Transformation from Totalitarianism to the Democratic Rule of Law,” Polish Embassy, London, 24 February 2000, at 2. Available at: . Accessed 21 May 2000. Copy also on file with the author. 54 According to the CT (Dec. K 14/92, 19 October 1993: OTK ZU 1993, Item 35), the principle of legality followed from the amended 1952 Constitution, Art. 3 which stated: (1) Observance of the laws of the Republic of Poland shall be the fundamental duty of every state organ. (2) All the organs of state authority and administration shall work on the basis of compliance with the law. 55 Dec. K 12/93, 16 May 1995: OTK ZU 1995, Item 14. Yet the CT had, even prior to the 1989 constitutional amendments, accepted the principle of legality and tied it in with the abovementioned principles of the non-retroactive effect of laws and maintenance of citizen confidence in the State: Dec. K 1/88, 30 November 1988: OTK ZU 1988, Item 6; OTK 1988, 81. 56 Dec. U 11/97, 27 November 1997: OTK ZU 1997/5–6, Item 67.

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with the decisions of ordinary courts by the state organs and a failure to respect judgments issued in specific cases shall be a drastic violation of the fundamental principles of legality applicable in the rule of law.” Also linked to the concept of a State under the rule of law is the principle of the separation of powers, the express wording57 of which now appears in 1997 Constitution Art. 10 and includes the notion of balancing: (1) The system of government of the Republic of Poland shall be based on the separation of and balance between the legislative, executive and judicial powers. (2) Legislative power shall be vested in the Sejm and the Senate, executive power shall be vested in the President of the Republic of Poland and the Council of Ministers, and the judicial power shall be vested in courts and tribunals.

In examining the case-law of the CT,58 four main areas may be distinguished in its treatment of the separation of powers principle: (a) the powers of Parliament;59 (b) the relationship of the two chambers of Parliament inter se;60 (c) the control function of the Sejm;61 and (d) the powers and competences of the President of

57 The April 1989 amendments to the 1952 Constitution did not expressly recognise the principle of the separation of powers as the foundation of the system of government, even though the amendments introduced institutions which were incompatible with the concept of unity of power: On this principle in Polish Constitutions since the 1989 changes, see H. Suchocka, “Zasada podziału i zrównoważenia władz [The principle of separation and balance of powers],” in Sokolewicz, (1998), at 146–164; Skrzydło (2003), at 127–130; Banaszak (1999), at 432–446; Garlicki & Gołyński (1996), at 55–60; W. Sokolewicz, “Zasada podziału władzy w prawie i orzecznictwie konstytucyjnym RP,” in J. Trzciński & A. Jankiewicz (eds.), Konstytucja i gwarancje jej przestrzegania: Księga pamiątkowa ku czci prof. Janiny Zakrzewskiej [Constitution and guarantees of the Observance Thereof: In Honour of Prof. Janina Zakrzewska], Wydawn. Trybunał Konstytucyjny, Warszawa (1996), 187. A consensus emerged that the principle should be expressly stated but it took until 1992, with the Small Constitution for this to be formally realised through adoption of the approach of the 1921 Constitution. Article 1 of the Small Constitution thus provided: “The State organs of legislative power shall be the Sejm and the Senate of the Republic of Poland, executive power shall be the President of the Republic of Poland and the Council of Ministers, and judicial power shall be independent courts.” See J. Ciemniewski, “Podział władz w Małej Konstytucji [The Separation of Powers in the Small Constitution],” in M. Kruk (ed.), “Mała Konstytucja” w procesie przemian ustrojowych w Polsce [The Small Constitution during the Systemic Changes in Poland], Wydaw. Sejmowe, Warszawa (1993), 20ff. 58 E. Łętowska & J. Łętowski, “Co wynika dla sądów z konstytucynej zasady podziału władz [What results from the Constitutional Principle of Separation of Powers for Courts],” in Trzciński & Jankiewicz (1996), at 391–393. 59 Commencing with its first ruling, Dec. U 1/86, 28 May 1986: OTK ZU 1986, Item 2. See also Dec. K 19/95, 22 November 1995: OTK ZU 1995, Item 35; Dec. K 6/94, 21 November 1994: OTK ZU 1994, Item 39; Dec. K 20/99, 27 June 2000: OTK ZU 2000/5, Item 140; Dec. K 16/99, 17 October 2000: OTK ZU 2000/7, Item 253; and Dec. K 16/00, 7 November 2000: OTK ZU 2000/7, Item 257. 60 Dec. K 25/98, 23 February 1999: OTK ZU 1999/2, Item 23. Similarly earlier rulings, Dec. K 5/93, 23 November 1993: OTK ZU 1995, Item 39; OTK 1993, II, 376; Dec. K 25/97, 22 September 1997: OTK ZU 1997/3–4, Item 35; and Dec. K 3/98, 24 June 1998: OTK ZU 1998/4, Item 52. 61 Dec. K 8/99, 14 April 1999: OTK ZU 1999/3, Item 41. Moreover, the principle of separation of powers does not exclude MPs’ participation in the executive opinion-making and consultative bodies (Dec. K 3/99, 28 April 1999: OTK ZU 1999/4, Item 73, concerning the participation of the MPs in the Council of Civil Service appointed by the Prime Minister).

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the Republic.62 It is possible to observe that one of the main reasons for the higher case-load on the CT’s docket for these four areas was directly attributable to the imprecise constitutional framework from the early 1990s63 which was subject to much-needed clarity under the 1997 Constitution.64 The CT has thus played a crucial role in creative interpretation of the principle of a democratic state under the rule of law65 although, in its judgments,66 it has often admitted that the principles it has drawn from the rule of law principle were not expressly formulated in the Constitution.67 Like its Hungarian counterpart, the CT has not been averse to pursuing an activist approach to interpreting the Constitution.

62 R. Mojak, Instytucja Prezydenta RP w okresie przekształceń ustrojowych [The Presidency of the Republic of Poland during the Period of Transformation], Wydawn. Uniwersytetu Marii CurieSkłodowskiej, Lublin (1995). See Dec. W 7/94, 10 May 1994: OTK ZU 1994, Item 23. Other, later rulings of the Court had a similar bent (e.g., Dec. W 2/95, 11 April 1995: OTK ZU 1995, Item 22, in which the principles of dissolution of the Sejm in case of non-adoption of the Budget were defined). The issue of who represented Poland at European Council meetings – the President of the Republic or the Prime Minister – was ultimately resolved by the CT in Dec. Kpt 2/08, 20 May 2009: OTK ZU 2009/5A, Item 78. 63 While the value was recognised of having the principle explicitly formulated, thereby becoming a constitutional principle and symbolising a return to democratic traditions, nevertheless no clear answer was given as to the consequences of the principle for the functioning of state organs and the meaning of the division: Did it amount to a distinct separation of powers or did it also encompass co-operation and balancing between these powers? The CT played a great role in determining the content of the principle in the absence of clear constitutional specification.1 In Dec. K 11/93 (9 November 1993: OTK ZU 1993, Item 37; OTK 1993, II, 350, at 358) in respect of the separation of powers, it stated: “[T]he legislative, executive and judicial powers are separated and, further, there has to be a balance between them and they have to co-operate. The meaning of this principle is not limited just to organizational matters. The purpose of the separation of powers is among others the protection of human rights by making an abuse of power impossible by any organ wielding such power.” The CT elaborated on this in Dec. K 6/94 (21 November 1994: OTK ZU 1994, Item 39) when it turned to discuss the relation between the three powers in 1992 Constitutional Act, Art.1: “[the] requirement of separation of powers means, inter alia, that each of the three powers should have a substantive competence reflecting their character, and what is more, each of the three powers should maintain a certain minimum of exclusive competence constituting its essence. 64 As concerns the position of the judiciary vis-à-vis other authorities, this has come before the CT in respect of petitions challenging the methods of determining judges’ salaries (Dec. P 1/95, 11 September 1995: OTK ZU 1995, Item 26; Dec. P 12/98, 22 March 2000: OTK ZU 2000/2, Item 67; and Dec. P 8/00, 4 October 2000: OTK ZU 2000/6, Item 189) as well as the position of the National Council of the Judiciary, a separate constitutional organ established to patrol the independence of judges and courts: Dec. K 3/98, 24 June 1998: OTK ZU 1998/4, Item 52; and Dec. K 30/99, 11 July 2000: OTK ZU 2000/5, Item 145. 65 E. Popławska, “The ‘Constitutionalization’ of the Legal Order,” in M. Wyrzykowski (ed.), Constitutional Essays, Institute of Public Affairs, Warszawa (1999), 71, at 84. 66 Dec. K 3/88, 4 October 1988: OTK ZU 1989, Item 2; OTK 1989, 23; Dec. K 5/90, 24 July 1990: OTK ZU 1990, Item 4; Dec. K 7/89, 8 November 1989: OTK ZU 1989, Item 8; OTK 1989, 112; and Dec. K 15/91, 29 January 1992: OTK ZU 1992, Item 8; OTK 1992, I, 149. 67 J. Nowacki, “Klauzula ‘państwo prawne’ a orzecznictwo TK [The Clause of a ‘Democratic State under the Rule of Law’ and Judgments of the Constitutional Tribunal],” in E. Zwierzchowski, Prawo i kontrola jego zgodności z konstytucją [The Law and Control of its Conformity with the Constitution], Wydaw. Sejmowe, Warszawa (1997), at 163–174.

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The post-transition amended Art. 1 of the 1952 Constitution stated that Poland would be a democratic state.68 The components of this principle were further expanded on in that Constitution and were subsequently reiterated and consolidated in the 1997 Constitution:69 thus, according to Art. 4, supreme power is vested in the Nation, which “shall exercise such power directly or through their representatives.” The new Constitution affirmed the already existing principles enabling the proper functioning of a representative democracy70 including the principle of political pluralism as set out in Art. 11.71 The free mandate principle72 in 1997 Constitution Art. 104(1)—“Deputies shall be representatives of the Nation. They shall not be bound by any instruc tions of the electorate”73—impliedly keeps in force the previous express constitutional prohibition on recall of a deputy or senator. The new provision ensures that the free mandate is universal (a representative represents the whole collective subject of sovereignty—the Nation), independent (there is no possibility of forcing them to act in a certain way), and irrevocable (there being no possibility for any outside body to bring about the expiry of their mandate before the term ends).74 Direct democracy75 under the 1997 Constitution (Art. 4) is placed on a par with representation. The increasing value of the referendum is reflected in its extended forms, particularly in broadening the scope of facultative application of a referendum to include matters of fundamental importance of the State.76 This is

68 A. Pułło, “Przedstawicielskie i pozaprzedstawicielskie formy sprawowania włazdy: demokracija pośrednia i bezpośrednia (wnioski dla przyszłej regulacji konstytucyjnej [Representative and Nonrepresentative forms of the Exercise of Power: Indirect and Direct Democracy (Conclusions for Future Constitutional Regulations)],” 1989/2–3 Studia Prawnicze 177–181. 69 See generally, E. Popławska, “Zasada rządów przedstawicielskich i formy demokracji bezpośredniej [The rule of representative government and forms of direct democracy],” in W. Sokolewicz (ed.), Zasady podstawowe polskiej Konstytucji [Basic principles of the Polish Constitution], Wydawnictwo Sejmowe, Warszawa (1998), at 142–145; B. Banaszak, Prawo konstytucyjne [Constitutional Law], C.H. Beck, Warszawa (1999), at 218–226. 70 Banaszak, ibid., at 259–349. 71 Article 11: “(1) The Republic of Poland shall ensure freedom for the creation and functioning of political parties. Political parties shall be founded on the principle of voluntariness and upon the equality of Polish citizens, and their purpose shall be to influence the formulation of the policy of the State by democratic means. (2) The financing of political parties shall be open to public inspection.” 72 M. Kruk, “Koncepcja mandatu przedstawicielskiego w doktrynie konstytucyjnej i praktyce [The Concept of the Representative Mandate in Constitutional Doctrine and Practice]” 1993/4 Przegląd Sejmowy 32. 73 This provision applies, mutatis mutandis, to senators: 1997 Constitution Art. 108. 74 L. Garlicki, Komentarz do Konstytucji RP. Artykuł 6 [Comments on the Polish Constitution. Article 6], Wydawnictwo Sejmowe, Warszawa (1996), Vol. II, at 5. 75 Banaszak (1999), at 239–258. 76 1997 Constitution Art. 125.

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especially true with respect to the transfer of competences to an international organisation.77 In addition, the new instrument of legislative popular initiative was introduced in the 1997 Constitution which, according to Art. 118(2), accords “the right to introduce legislation … to a group of at least 100,000 citizens having the right to vote in elections to the Sejm.”78 The CT has been seised of a number of cases dealing with the principle of democracy and its practical operation. In Dec. U 6/92,79 e.g., it accepted the petitions of a group of MPs that a contested Parliamentary Resolution had been ratified in violation of the Interim Standing Orders of the Sejm and thus infringed both the rule of law principle and the principle of representative democracy: “An essential feature of representation … is that in a democratic state there is a specified manner for undertaking legal acts (statutes and resolutions) that is satisfied by debate, for example. This is the essence of a representative and democratic system for the making of laws.” 4. Protection of Fundamental Human Rights The fundamentality of human rights was not an essential operative component of the legal order established under the 1952 Constitution. Only with the democratic transition and the subsequent constitutional amendments did human rights really start to enter into their own as part of the essential core of Polish sovereignty.80 While the 1952 Constitution catalogue covered the majority of those accepted in the Western democracies,81 important rights were absent.82 Further the Constitution did not protect rights from limitation either by statute or by executive decree, and certain rights—normally granted constitutional protection— remained regulated (inadequately) in ordinary statutes: e.g., the right to privacy; the right to a fair trial; and the rights accorded to persons deprived of their liberty. 77 1997 Constitution Art. 90(3). For further explanation, see below at Chapter Five, point C.2. 78 Lastly, there is a constitutional base under 1997 Constitution Art. 170 for referenda to be held in communes: members of a self-governing community (commune or gmina) may decide, by means of a referendum, matters concerning their community, including the dismissal of an organ of local selfgovernment established by direct election. 79 Dec. U 6/92, 19 June 1992: OTK ZU 1992, Item 13; OTK 1992, I, 196, at 204. See also Dec. W 2/94, 13 April 1994: OTK ZU 1994, Item 21; OTK 1994, I, 190–191. 80 See generally, Sarnecki (1999), at 42–121; Skrzydło (2003), at 149–173; Banaszak (1999), at 350–429. 81 For example, freedom and inviolability of the person (1952 Constitution Art. 87(1)); inviolability of the home and confidentiality of correspondence (Art. 87(2)); freedom of conscience and religion (Art. 82(1)); freedom of speech and freedom of the press (Art. 83); freedom of assembly (Art. 83); freedom of association (Arts. 84 and 85); and freedom of economic activity (Art. 6). 82 These included the right to information; the right to privacy; the right to citizenship; freedom of movement; property rights; the right to self-government, etc.

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Despite the absence of a proper catalogue of rights until the coming into force of the 1997 Constitution (Chapter II, Arts. 30–86), the CT had already affirmed their centrality through various decisions, basing their rulings in many cases on the principle of a democratic state under the rule of law (1952 Constitution Art. 1) as well as reference to international human rights instruments of which Poland was a party.83 The CT early on dealt with and expounded upon the protection of private property,84 the principle of laïcity and the neutrality of the State,85 the freedom of conscience,86 and the freedom of association.87 In a series of rulings,88 the CT also acknowledged that, while it was constitutionally possible to put limitations on fundamental rights, this could only occur through statute and was an absolute requirement forming part of the principle of a democratic state under the rule of law.89 The situation regarding limitation of rights was finally clarified by the wording of 1997 Constitution Art. 31(3): Any limitation upon the exercise of constitutional freedoms and rights may by imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.

Consequently, confirming the CT’s extensive case-law on the subject, limitations on rights may be made only through statute and then only for the purpose of protecting higher values. 83 For example, 1966 UN International Covenant on Civil and Political Rights and the 1950 ECHR were referred to by the CT in Dec. K 1/92, 20 October 1992: OTK ZU 1992, Item 23; OTK 1992, II, 27. This case concerned amendments to the 1963 Aliens Act. The changes allowed administrative agencies to impose, without judicial supervision, different types of deprivation of liberty on persons subject to an expulsion order. Both chambers of Parliament were cognisant of the discrepancy of these provisions with Art. 5 ECHR. The Ombudsman petitioned the CT on the grounds, inter alia, that the provisions were contrary to 1952 Constitution Art. 87(1) which guaranteed the right to personal inviolability. The CT, generally sharing the view of the Ombudsman, found the challenged provisions infringed Constitution Art. 87(1) and stressed, with reference to Art. 5(4) ECHR and 1966 ICCPR Arts. 2(3) and 9(3), that “as far as protection of human rights is concerned, the Aliens Act amendment is a step backwards.” On the matter of the ECHR, see below under this point, Chapter Five, point B.4. 84 Dec. K 1/91, 28 May 1991: OTK ZU 1991, Item 4. 85 Dec. K 11/90, 30 January 1991: OTK ZU 1991, Item 2; OTK 1991, 27. 86 Dec. U 8/90, 15 January 1991: OTK ZU 1991, Item 8; OTK 1991, 134. 87 Dec. K 6/90, 12 February 1991: OTK ZU 1991, Item 1. 88 Dec. U 1/86, 28 May 1986: OTK ZU 1986, Item 2; OTK 1986, 32; Dec. U 5/86, 5 November 1986: OTK ZU 1986, Item 1; OTK 1986, 7; and Dec. K 3/89, 26 September 1989: OTK ZU 1989, Item 5. 89 Such statutory limitation on a right also had to satisfy the criterion of sufficient specificity (Dec. U 6/92, 19 June 1992: OTK ZU 1992, Item 13; OTK 1992, I, 196) and proportionality (Dec. K 11/94, 26 April 1995: OTK ZU 1995, Item 12; and e.g., in Dec. U 10/92, 26 January 1993: OTK ZU 1993, Item 2; OTK 1993, I, 19, at 32). In putting statutory limits on rights, it was necessary to take into account special features of particular rights and freedoms because they determined the general boundaries of permissible limitations: thus more restrictive standards applied to personal and political rights and freedoms than applied to economic and social ones: such requirements were repeated and built upon in Dec. K 28/97, 9 June 1998: OTK ZU 1998/4, Item 50; and Dec. SK 19/98, 16 March 1999: OTK ZU 1998/3, Item 36.

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In addition, the CT actively developed the principle of equality, holding in Dec. U 5/8690 that a provision of a 1985 Council of Ministers’ Decree contravened the constitutional principle of equality in the 1952 Constitution Art. 67(2) which provided that “all citizens of the People’s Republic of Poland shall have equal rights irrespective of gender, birth, education, profession, nationality, race, religion, social status and origin.”91 After the 1997 Constitution came into force, Art. 32 became the new constitutional basis for the principle of equality in the Polish system: under para. (1), “All persons shall be equal before the law. All persons shall have the right to equal treat ment by public authorities”; and under para. (2), “No one shall be discriminated against in political, social or economic life for any reason whatsoever.” Still the CT was able to remark92 that the principle remained a stable part of its case-law. In fact, the 1997 Constitution heralded the domestic introduction of a number of sought-after changes to the system of human rights protection: (1) by Art. 8(2), the provisions of the Constitution are declared to be directly effectively; and (2) Arts. 77–80 lay down the rules governing the right of redress when rights and freedoms have been violated, the right to judicial protection, the right to appeal against a court decision, the right to address the Ombudsman, and the right of constitutional complaint. These rights are completed with the constitutional guarantee of judicial independence and the express statement, in Constitution Art. 178(1), that judges are subject only to statutes and the Constitution—and not to anyone or anything else. As with its Hungarian counterpart, the CT has made extensive use of the provisions of the ECHR93 and decisions of the ECtHR in its case-law.94 Despite the 90 Dec. U 5/86, 5 November 1986: OTK ZU 1986, Item 1; OTK 1986, 7. 91 In a subsequent case, Dec. P 2/87 (3 March 1987: OTK ZU 1987, Item 2; OTK 1987, 20), the CT declared that the principle of equality enjoyed the rank of a general principle underlying all civil rights, liberties and duties and that any restrictions on it, which did not follow on from an effort to attain real social equality, were impermissible. 92 Dec. K 3/98, 24 June 1998: OTK ZU 1998/4, Item 52. Having already noted in Dec. K 8/97 (16 December 1997: OTK ZU 1997/5–6, Item 70) that the basic issue to evaluate the observance of the principle of equality: “is thereby the determination of the essential trait on account of which the provisions of law differentiated the legal situation of its addressees…. The differentiation of the legal situation of citizens contravenes the Constitution if it treats similar entities or situations differently if the differences in treatment are not duly justified in the Constitution.” 93 Poland became a member of the Council of Europe on 26 November 1991, signing the ECHR. On 2 October 1992, the Sejm (according to the then rules in force) expressed its approval through the adoption of a statute ratifying the Convention (Although passed in October, the statute was not published until the next month in the Journal of Laws: Dz. U. 1992, No. 85, Item 427, at 1485) which statute was signed by the President of the Republic on 15 December 1992. The instruments of ratification of the Convention were deposited on 19 January 1993: L. Garlicki, “Ratyfikacja Konwencij o ochronie praw czeowieka i podstawowych wolnośi [Ratification of the Convention on the Protection of Human Rights and Fundamental Freedoms],” Biuletyn - Ekspertyzy i opinie prawne, Kancelaria Sejmu, 1992, No. 1(4), at 32–35. 94 L. Leszczyński, “Application of the European Convention in the Polish Courts: An Impact on the Judicial Argumentation,” (1996) 2 East European Human Rights Review 19; A. Drzemczewski &

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difficulties international law experienced in the Polish constitutional system before 1997, the CT was clear that the ECHR, and the case-law under it, provided human rights standards which should be regarded as laying down one of the very foundations of the Polish legal order. Thus, by using 1952 Constitution Art. 1 on the rule of law, the CT recognised the Convention’s importance as an act to be used for interpretation of domestic law.95 Cases subsequent to the 1997 Constitution also used the ECHR and its interpretations by the ECtHR but in these judgments the CT—with its revised jurisdiction—was able to rely directly on the Convention to review inconsistent national legislation.96 Consequently, with regard to the amended 1952 Constitution or its 1997 successor, the decision of a Polish court openly contradicting the ECHR would not be accepted by the superior courts, including the CT, especially in the light of the rule of law principle and judicial practice. C. Transfers of Sovereignty and European Integration 1. Introduction Poland did not need to pass specific amendments to the Constitution in order to accede to the EU.97 In fact, it has been noted, one of the most characteristic features of the 1997 Constitution is its opening to the rules of international and supranational law.98 Even at the preparatory stage, the issue had been raised as to whether the new Constitution should include integration provisions aimed specifically at EU accession—even though Polish membership at that time was considered a more remote possibility. The view prevailed, as in the case of Spain preparing its 1978 Constitution, that early adoption of integration provisions

M. Nowicki, “The Impact of the ECHR in Poland: a Stock-taking after Three Years” [1996] EHRLR 261. 95 Dec. W 3/93, 2 March 1994: OTK ZU 1994, Item 17; OTK 1994, I, at 157–158. 96 As with Hungary, there are dozens of examples: Dec. K 21/99, 10 May 2000: OTK ZU 2000/4, Item 109. This case used a series of ECtHR decisions in its reasoning: Leander v. Sweden, Judgment of 26 March 1987, Series A, No. 116; (1988) 9 EHRR 433; Klass v. Germany, Judgment of 6 September 1978, Series A, No. 28; (1979–80) 2 EHRR 214; Tinnelly & Sons Ltd. and McElduff v. United Kingdom (App. 20390/92), Judgment 10 July 1998; (1998) 27 E.H.R.R. 249; Pellegrin v. France (App. 28541/95), Judgment of 8 December 1999; Vogt v. Germany (App. 17851/91), Judgment of 26 September 1995; (1996) 21 EHRR 205; Glasenapp v. Germany, Judgment of 28 August 1986, Series A, No. 104; (1986) 9 EHRR 25; Wille v. Liechtenstein (App. 28396/95), Judgment of 28 October 1999; (2000) 30 EHRR 558; and Rotaru v. Romania (App. 28341/95), Judgment of 4 May 2000. 97 Although this was the subject of much academic discussion before accession: see J. Barcz, “Akt integracyjny Polski z Unią Europejska w świetle Konstytucji RP [Poland’s Integration Act with the European Union in the light of the Polish Constitution]” 1998/4 PiP 12. 98 A. Wasilkowski, “International Law and International Relations in the New Polish Constitution of 2 April 1997” (1997–1998) XXIII Pol. YBIL 7.

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would show unequivocally Poland’s commitment to joining the EU and that approval of the Constitution in a referendum—including the integration clauses— would underline popular support for the sensitive issue of limiting the exercise of state powers.99 In this way, the constitutional implications of Polish accession to the EU had already been subject to parliamentary scrutiny and academic debate100 in the process of drawing up the 1997 Constitution. The new Constitution thus provided the necessary empowerment clause (the so-called ‘Europe clause’) and proce dural rules to allow Poland to accede to the Union. In this respect, Constitution Arts. 90 and 91 had in general been positively assessed by academic literature:101 Constitution Art. 90 governed the matter of the decision on accession and the procedure for the transfer of (the exercise of) competences; and Constitution Art. 91 opened the Polish legal order to European law and governed the applicability of European law in the domestic field. Constitution Art. 89(1)(3) provides that ratification of an international treaty concerning “Poland’s membership of an international organisation” requires “prior consent granted by statute.” Where, however, such membership entails— according to Constitution Art. 90(1)—a transfer of powers of state organs in certain matters to the international organisation in question, then a choice of special procedure is set out for expressing the necessary prior approval or consent to this type of treaty: (a) under Constitution Art. 90(2), the prior consent statute approving ratification of the relevant treaty must be passed by a two-thirds majority of the members of each chamber of Parliament, in the presence of half or more of the statutory number of members of each chamber; or (b) under Constitution Art. 90(3), the granting of consent for the ratification of such a treaty

99 K. Wójtowicz, “Proposed Changes in the Polish Constitution of 1997 ahead of Poland’s Accession to the European Union” (2001) XXV Pol. YBIL 27, at 27–28. 100 K. Complak, “Die Prinzipen des Systems der Republik Polen und der Beitritt zur Europäischen Union,” in M. Maciejewski (ed.), Społeczeństwo w przełomie. Polska, Niemcy i Unia Europejska. Die Gesellschaft in der Wende. Polen, Deutschland und die Europäische Union, Wydawn. Uniwersytetu Wrocławskiego, Wrocław (1999), 146ff; and P. Winczorek, “Kilka uwag w kwestii dostosowania Konstytucji Rzeczpospolitej Polskiej do wymogów prawa europejskiego [A few comments on adopting the Constitution of the Republic of Poland to the requirements of European law],” in E. Popławska (ed.), Konstytucja dla rozszerzającej się Europy [A Constitution for Enlarging Europe], Instytut Spraw Publicznych, Warszawa (2000), 187ff. 101 J. Barcz, “Konstytucyjnoprawne problemy stosowania prawa Unii Europejskiej w Polsce w świetle dotychczasowych doświadczeń państw członkowskich [Constitutional problems of application of EU law in Poland in the light of recent experiences of Member States],” in M. Kruk (ed.), Prawo międzynarodowe i wspólnotowe w wewnętrznym porządku prawnym [International and Community Law in internal legal system], Wydawnictwo Sejmowe, Warszawa (1997), at 203ff; K. Działocha, “Podstawy prawne integracji Polski z Unią Europejską w pracach nad nową konstytucją [Legal basis for integration of Poland with the EU in the works on new Constitution]” 1996/4–5 PiP 5, at 9ff; M. Safjan, “Konstytucja a członkowsto Polski w Unii Europejskiej [The Constitution and membership of Poland in the EU]” 2001/3 PiP 3, at 6.

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may also be passed by a nationwide referendum in accordance with Constitution Art. 125.102 The common characteristic of these alternative procedures is the enlarged sphere of democratic legitimation which recognises the transfer (implicit and explicit) of sovereign powers, in this case to the EU. Such procedures are therefore essential when, in spite of the increased powers of the European Parliament, the main executive powers remain firmly with the representatives of the Member States in the Council of Ministers. The inherent deficit in democratic legitimation of the EU was thus addressed in part, on the Polish side, by the decision of the Sejm (under Constitution Art. 90(4)) to enhance the role of popular participation in the approval of the ratification of the 2003 Accession Treaty through a nationwide referendum. Poland’s accession to the EU was thus a complex act:103 together with the then EU-15 and the nine other acceding States, Poland signed the EU Accession Treaty on 16 April 2003 in Athens. Pursuant to that Treaty, Poland undertook to implement in their entirety the EC Treaty and the EU Treaty. The CT in Dec. K 11/03104 ruled such procedure constitutional and this was followed shortly after, on 7 and 8 June 2003, by the referendum on Polish membership of the EU.105 A majority of 77.45% of the electorate voted in favour which result was confirmed by the Supreme Court.106 Accordingly the President of the Republic ratified the Accession Treaty.107 After such ratification, the constitutionality of the 2003 Accession Treaty was challenged by several deputies from the Sejm—the CT ruled the Treaty constitutional in Dec. K 18/04108 which will be considered in more depth later in this Chapter.

102 1997 Constitution, Art. 125 states, inter alia: (1) A nationwide referendum may be held in respect of matters of particular importance to the State. (2) The right to order a nationwide referendum shall be vested in the Sejm, to be taken by an absolute majority of votes in the presence of at least half of the statutory number of MPs, or in the President of the Republic with the consent of the Senate given by an absolute majority vote taken in the presence of at least half of the statutory number of Senators. 103 J. Barcz, “Membership of Poland in the European Union in the Light of the Constitution of 2 April 1997. Constitutional Act of Integration” (1997–1998) XXIII Pol. YBIL 21, at 21. 104 Dec. K 11/03, 27 May 2003: OTK ZU 2003/5A, Item 43. 105 Held in accordance with Constitution Art. 125 and the 2003 Referenda Act: Act of 14 March 2003 on Nationwide Referenda, Dz. U. 2003, No. 57, Item 507 and Dz. U. 2003, No. 85, Item 782. 106 In accordance with Constitution Art. 125(4): “The validity of a nationwide referendum and the referendum referred to in Article 235(6) shall be determined by the Supreme Court.” 107 Together with the accompanying documents, the 2003 Treaty was published in the Dz. U. 2004, No. 90, Item 864. 108 Dec. K 18/04, 11 May 2005: OTK ZU 2005/5A, Item 49.

the polish constitutional tribunal223 2. Transfers of the Exercise of Sovereignty

The 1997 Constitution does not permit the transfer of sovereignty:109 rather it provides in Art. 90(1): “The Republic of Poland may, by virtue of international agreements, delegate to an international organisation or international institution the competence of organs of State authority in relation to certain matters.” In some drafts of the Constitution, they did not speak of the transfer of competences but rather of the transfer of the right to their exercise.110 But the Constitution authorises—in spite of the alteration of the formula in Art. 90—only the transfer of the exercise of specific competences and not the power in itself.111 Hence it followed112 that, as the transfer of competences ‘in certain matters’ was spoken about, it might be concluded that only specific competences could be transferred. As such it raised the question as to what competences could be thus transferred, or more starkly, to what extent could sovereignty be limited. The 1997 Constitution provides no positive indication as to what competences it means. But it is clear that the formulation of Art. 90 excludes the transfer of sovereignty ‘in all cases,’ i.e., there are some areas which are not subject to the transfer. The question as regards which matters ought or ought not to be the object of the transfer are not answered clearly by the Constitution.113 As previously noted, unlike the German Federal Constitution Art. 79(3), the Polish Constitution recognises no unalterable provisions. However, despite the absence of formal limitation on the transfer of competences, several limits can be derived from the Constitution. These limits cannot be limited in abstracto114 but are rather bound up with the system of values of the constitutional order.115 In both Constitution Chapters I and II can be found the fundamental principles of the Polish legal order, e.g.,

109 M. Granat, “Constitutions nationales et Constitution européenne: Pologne” (2005) XXI AIJC 201, at 216. 110 S. Biernat, “Constitutional Aspects of Poland’s Future Membership in the European Union” (1998) 36 AVR 398, at 407. 111 Ibid., at 407. 112 M. Jankowska-Gilberg, “Verfassungsrechtliche Grundlagen des Beitritts und der Mitgleidschaft Polens in der Europäischen Union” (2003) 38 EuR 417, at 425. 113 K. Wójtowicz, “Proposed Changes in the Polish Constitution of 1997 ahead of Poland’s Accession to the European Union,” in W. Czapliński (ed.), Poland’s Way to the European Union: Legal Aspects, Scholar Publishing House, Warszawa (2002), 34, at 45. 114 C. Mik, “Przekazanie kompetencji przez Rzeczpospolitą Polską na rzecz Unii Europejskiej i jego następstwa prawne (uwagi na tle art. 90 ust. 1 Konstytucji) [Transmission of competences by the Republic of Poland in favour of the EU and its legal consequences (comments on Art. 90 (1) of the Constitution],” in C. Mik (ed.), Konstytucja Rzeczpospolitej Polskiej z 1997 roku a członkostwo Polski w Unii Europejskiej [Constitution of the Republic of Poland of 1997 and membership in the EU], TNOiK, Toruń (1999), at 154. 115 L. Garlicki, “Normy konstytucyjne relatywnie niezmienialne [Constitutional norms relatively unamendable],” in J. Trzciński (ed.), Charakter i struktura norm Konstytucji [Characteristic and structure of the Constitution’s norms], Wydawnictwo Sejmowe, Warszawa (1997), at 139ff.

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parliamentary democracy, the rule of law, and the separation of powers.116 Even before accession, then, it was strongly arguable that the transfer of competences could not infringe these basic principles of the constitutional order, the essential core of sovereignty. According to recent case-law of the CT, the ceding of competences under Constitution Art. 90 is not a ceding of sovereignty. In Dec. K 18/04117 on the constitutionality of the 2003 Accession Treaty, the petitioners contended inter alia that, through the transfer of competences to the EC/EU on accession to the Union, Poland had lost its capacity to act as an independent and sovereign State. In its judgment in the case, the CT observed that Constitution Art. 8(1)—which states that the Constitution is “the supreme law of the Republic of Poland”—was accompanied by the requirement under Constitution Art. 9 to respect and to be sympathetically disposed towards appropriately shaped rules of international law binding on Poland.118 The Constitution therefore assumed that, within the territory of Poland—in addition to norms adopted by the national legislative organs— there operated rules created outside that framework. The 1997 Constitution, the CT reminded the petitioners, had been approved in a national referendum and its provisions had thus been sanctioned through the exercise of sovereignty by the Polish constitutional legislator with the participation of the citizens. The Constitution, in Arts. 90 and 91, provides for stricter conditions to be fulfilled when delegation of competences to international organisations would give precedence to such organisations’ rules over conflicting Polish statutory norms. Ratification of treaties resulting in this type of transfer—as indicated above119—requires consent by a qualified majority in both houses of the Polish Parliament representing the Nation as sovereign, in accordance with the principle in Constitution Art. 4(2), or by the sovereign itself as expressed in a 116 Ibid., at 152. 117 Dec. K 18/04, 11 May 2005: OTK ZU 2005/5A, Item 49. See S. Biernat, “Glosa do wyroku Trybunału Konstytucyjnego z 11.5.2005 (zgodność Traktatu Akcesyjnego z Konstytucją RP) K 18/04 [Commentary to the judgment of Constitutional Tribunal of 11.05.2005 (Compatibility of Accession Treaty with the Constitution of Republic of Poland) K 18/04]” 2005/4 Kwartalnik Prawa Publicznego 185. 118 The German Constitution enshrines ‘the principle of openness towards international law’ (‘das Grundsatz der Völkerrechtsfreundlichkeit’): Eurocontrol I, 23 Juni 1981, 2 BvR 1107, 1124/77 und 195/79: BVerfGE 58, 1, at 34; and Eurocontrol II, 10 November 1981, 2 BvR 1058/79: BVerfGE 59, 63, at 89. See also R. Geiger, Grundgesetz und Völkerrecht, 3rd ed., Beck, München (2002), para. 34 II. From this concept, the FCC has derived a general rule of interpretation: in case of doubt, the Constitution as well as all ordinary statutes have to be interpreted as much as possible in conformity with German obligations under public international law: Ostverträge, 7 Juli 1975, 1 BvR 274/72: BVerfGE 40, 141, at 178; and Grundlagenvertrag, 31 Juli 1973, 2 BvF 1/73: BVerfGE 36, 1, at 14. In several cases, e.g., the FCC has ruled that the principle of openness towards international law obliges it to ensure, within its own competences, that administrative and judicial bodies respect the provisions of international treaties and to take into consideration the relevant case-law of international courts: Fair Trial, 26 März 1987, 2 BvR 589/79: BVerfGE 74, 358, at 370; Görgülü, 14 Oktober 2004, 2 BvR 1481/04: BVerfGE 111, 307, at 315ff. 119 See at Chapter Five, point C.2.

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national referendum which procedure is an even more intensive and direct expression of the sovereign decision of the Nation: this was indeed a recognition of the impact of the transfer as being similar to an amendment of the Constitution.120 These requirements introduced essential (significant) protection from ‘too easy’ or insufficient authorised delegation of the competences of organs of state authority: such protection concerned all cases of delegation of competences to EU organs. In its decision, the CT further noted that the EU functions, according to the founding Treaties, on the basis and within the scope of competences delegated to it by the Member States (as determined by the FCC in Maastricht121 and Lisbon122). As a result, the EU and its institutions could only act within the framework of competences indicated in the provisions of the Treaties:123 “The Nation, by the acceptance of the Constitution in the referendum, has agreed to the possibility of the Republic of Poland being bound by the law passed by an international organisation or international organ, thus law other than treaty law. This happens within the boundaries [scope] provided for in the ratified international agreements.” Thus the CT expressly stressed the supremacy of the Constitution in relation to EU law applied within the territory of Polish sovereign power and indicated the constitutional limits on the transfer of the competences of state organs to EU institutions.124 Such constitutional limits were for the CT to patrol, as the FCC has provided in its ultra vires review jurisdiction in Lisbon.125 How then was it to determine the limits of transfer? The basis of the review power centred on its interpretation of the phrase in Constitution Art. 90(1) regarding the transfer of competences ‘in relation to certain matters.’ The CT understood this phrase to be:126 a prohibition on the transfer of all competences of a certain state organ, on the transfer of all competences in all matters within a certain field and also as a prohibition on the transfer of competences determining the substantial scope of the activity of a certain state organ. It was therefore necessary to determine precisely the field of

120 Constitution Art. 235(4): “A bill to amend the Constitution shall be adopted by the Sejm by a majority of at least two-thirds of votes in the presence of at least half of the statutory number of deputies, and by the Senate by an absolute majority of votes in the presence of at least half of the statutory number of senators.” 121 Maastricht, 12 Oktober 1993, 2 BvR 2134 und 2159/92: BVerfGE 89, 155; [1994] 1 CMLR 57. 122 Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267; [2010] 3 CMLR 13, 276. 123 Dec. K 18/04, 11 May 2005: OTK ZU 2005/5A, Item 49, at para. III.4.4. 124 In support of these arguments, the CT had made reference to the FCC in Maastricht and the Danish Supreme Court in Carlsen. 125 Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267, at 351–352; [2010] 3 CMLR 13, 276, at 336–337. 126 Dec. K 18/04, 11 May 2005: OTK ZU 2005/5A, Item 49, at para. III.4.1. See a similar result by the German Court in Lisbon: see above at Chapter Three, point E.2.d.

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Subsequently in this ruling,127 the CT emphasised the point that the process and matter of the transfer of competences ‘in certain matters’ had to remain in accordance with the Constitution and any change to the transferred competences required compliance with the procedure for constitutional amendment under Constitution Art. 235. Of fundamental importance, from the point of view of sovereignty and protection of other constitutional values—the CT continued—was the limitation of the possibility of the transfer of competences ‘in certain matters:’ such transfers could thus not infringe the essential core of rights that enable— according to the Preamble to the Constitution—the sovereign and democratic determination of the future of the Republic of Poland. The CT’s approach to conferral of powers is clearly inspired by the FCC’s Maastricht ruling to which it makes express reference128 and repeated in the 2009 Lisbon ruling. Moreover, it follows the FCC approach by affirming its own jurisdiction to police the boundaries of these conferred powers so that they remain in conformity with the Constitution. In its own Lisbon ruling, the CT would only go as far as assuming the protection of constitutional identity as the central theme of its jurisdiction over EU law but not by adopting the FCC’s reasoning as to the need for and promotion of novel forms of constitutional complaint in the form of proceedings for the protection of such constitutional identity and for ultra vires review. Instead, as will be seen below,129 the CT sought to balance the demands of protecting national sovereignty with those of European integration. D. National Constitutional Court Acceptance 1. Introduction As has been seen so far in this Chapter, both academics and judges were well aware of the constitutional implications of EU membership before accession. Nevertheless, despite various considerations,130 it was clearly only after accession that the CT could effectively mould the constitutional landscape in response to the implications of European law in the national system.131

127 Ibid., at para. III.8.4. 128 Ibid., at para. III.4.5. 129 See below at Chapter Five, points E.2.c.-d. 130 C. Mik, “Zasady ustrojowe europejskiego prawa wspólnotowego a polski porządek konstytucyjny” 1998/1 PiP 33, at 36; M. Safjan, “Konstytucja a członkostwo Polski w Unii Europejskiej [The Constitution and the membership in the EU]” 2001/3 PiP 3, at 14; and Barcz (1998) PiP, at 12. 131 See generally, N. Skrzypek, “Le tribunal constitutionnel polonais et le droit communautaire” (2007) 43 CDE 179–212.

the polish constitutional tribunal227 2. Supremacy/Priority of Application

The 1997 Constitution, as already discussed, was drafted to allow for membership of the EU without the need for further amendment. Primary European law—as an international treaty—thus became a component of the domestic legal order and could be directly applied. According to Constitution Art. 91(2), “[a]n international agreement ratified upon prior consent granted by statute shall have precedence over statutes if such an agreement cannot be reconciled with the provisions of such statutes.” The Constitution here speaks only of international treaties whose ratification is provided for in a prior consent statute: the same supra-statutory level therefore had to apply to a treaty, which had been approved in a referendum (i.e., the Accession Treaty and with it the EC/EU Treaties), since both methods of consent had the same value.132 In addition, the general formulation of precedence of application of European secondary law, as expressed in Constitution Art. 91(3), had to be interpreted as a demand to apply the European provision and thus simultaneously a refusal to apply a domestic rule conflicting with it.133 The CT practice has subsequently examined these provisions in its case-law. The proceedings in Dec. P 37/05134 amounted to a Simmenthal-style case135 but within a Polish (monist) setting. The subject matter was the payment of excise duties imposed, in accordance with s. 80 of the 2004 Excise Duty Act, on cars imported from another Member State. The Regional Administrative Court in Olsztyn requested the CT whether s. 80 conformed to (directly effective) Art. 90(1) EC136 (now Art. 110(1) TFEU) and to Constitution Art. 91. The mindset behind the reference to the CT was one typical of the administrative organs and courts in the face of the application of European law137—even with the express wording of the 1997 Constitution. In this context, such entities considered that the Excise 132 See, e.g., K. Wójtowicz, “Konstytucja Rzeczpospolitej Polskiej a członkostwo w Unii Europejskiej [The Constitution of the Republic of Poland and membership in the EU],” in Popławska (2000), at 168. 133 M. Safjan, “The Constitution and Accession of the Republic of Poland to the European Union,” in European Commission for Democracy through Law, European integration and constitutional law, No. 30 Collection Science and technique of democracy, Council of Europe Publishing, Strasbourg (2001), 137, at 150. 134 Dec. P 37/05, 19 December 2006: OTK ZU 2006/11A, Item 177; [2007] 3 CMLR 48, 1323. See generally, A. Łazowski, “Case Note: Poland. Constitutional Tribunal on the Preliminary Ruling Procedure and the Division of Competences Between National Courts and the Court of Justice: Order of 19 December 2006” (2008) 4 EuConst 187. 135 Case 106/77 Amministrazione delle Finanze dello Stato v. Simmenthal SpA [1978] ECR 629. 136 Declared to be of direct effect in Case 57/65 Alfons Lütticke GmbH v. Hauptzollamt Saarlouis [1966] ECR 205. 137 A. Wyrozumska, “Stosowanie prawa wspólnotowego a art. 91, 188 ust. 2 i 193 Konstytucji RP – glosa do postanowienia Trybunału Konstytucyjnego z 19.12.2006 r. (P 37/05) [Application of Community law and Articles 91, 188(2) and 193 of the Polish Constitution – gloss to the procedural decision of the Constitutional Tribunal of 19 December 2006 (P 37/05)]” 2007/3 Europejski Przegląd Sądowy 39, at 39.

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Duty Act was still a binding law and had to be applied barring annulment by the CT or repeal by the legislature—the paradigm Simmenthal case. The CT confirmed—although not referring expressly to Simmenthal138—the duty of a national court to apply European law directly, the primacy of European law and the lack of necessity to refer to the CT legal questions concerning the conformity of national and European law or waiting for its annulment by the CT or repeal or amendment by the legislature. The CT also affirmed that ratified international treaties, e.g., the EC and EU Treaties, which (by virtue of Constitution Art. 91(1)) had become an integral part of the domestic legal system “shall not change into normative acts of the State but shall remain in their nature—and by virtue of its origin—the acts of international law.” The CT correctly identified the fact that it was dealing with a conflict between s. 80 of the Excise Duty Act and Art. 110 TFEU (ex-Art. 90 EC) but could not deal with the conformity of s. 80 with Constitution Art. 91; indeed, it was difficult to imagine how s. 80 could have been inconsistent with Art. 91 since they concerned totally different issues. The CT therefore concluded that the question referred was related to the application of law because of application of Constitution Art. 91(2) and European law, and not to the question of conformity of a statute with the Constitution: as such the reference was inadmissible. In its decision, the CT emphasised the point that the case concerned the application of law as opposed to its binding force.139 In this way, it followed the German constitutional jurisprudential differentiation between ‘Anwendungsvorrang’ (priority of application) and ‘Geltungsvorrang’ (priority of validity) of European law in conflict with national law.140 The CT further indicated that the alleged non-conformity of s. 80 of the 2004 Act to Art. 110 TFEU (ex-Art. 90 EC) did not ‘accordingly’ indicate its lack of conformity to Constitution Art. 91(2). On the contrary, Constitution Art. 91(2) actually authorised the national court referring the question of law to the CT to refuse to apply the statutory provision:141 In principle, preference should be given to the elimination of conflicts between domestic and international norms at the level of applying the law. Leaving purely doctrinal considerations aside, the mechanism for the elimination of conflict of norms at the level of applying the law is more efficient and flexible than the review of legality undertaken by the CT, and from the perspective of the structure – justified by the fact that, generally, an international law norm will have a narrower scope of binding force than a domestic statutory norm – be it in temporal, objective or subjective aspect. 138 Ibid., at 39. 139 Ibid., at 40. 140 Jankowska-Gilberg (2003), at 433. 141 Dec. P 37/05, 19 December 2006: OTK ZU 2006/11A, Item 177, at para. III.3; [2007] 3 CMLR 48, 1323, at 1335.

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According to the principle of precedence, the application of an international (European) norm therefore neither repealed, breached nor invalidated the domestic statutory provision but rather only limited the latter’s scope of application. Changes in the contents or loss of binding force of an international (European) norm would alter the scope of application of a statutory norm without the need for the national legislator to undertake any action. The CT later stated:142 [N]ational courts shall not only be authorised, but also obliged to refuse to apply a domestic law norm, where such norm remains in conflict with [European] law norms. National courts shall not, in such case, adjudicate upon the repeal of a domestic law norm, but shall only refuse to apply the norm to the extent that is required to give precedence to the [European] law norm. The legal act in question shall not be deemed invalid, and shall remain in force within the scope that is not encompassed by the objective and temporal binding force of the [European legal rule].

Where any doubts arose as to the relationship between a domestic and a European legal norm, the relevant court could refer any question for a preliminary ruling to the ECJ. The CT therefore acknowledged that there was no necessity to refer to it questions of law regarding the conformity of domestic law to European law, even in situations where the referring national court intended to refuse to apply a domestic statute. Solving conflicts of European law in relation to domestic statutes fell outside its jurisdiction, and instead fell within the power of the Supreme Court, ordinary and administrative courts, while interpretation of European law remained in the province of the ECJ through the Art. 267 TFEU (ex-Art. 234 EC) reference procedure.143 Interestingly, in support of its argument, the CT cited to a 1990 judgment of the FCC144 which had dealt, in part, with the infringement of the right to a lawful judge,145 as well as to the decision of the Italian Constitutional Court in Granital.146 In following the ECJ’s Simmenthal jurisprudence, the CT (like other constitutional courts in the EU Member States) has thereby accepted an important restriction on its jurisdiction in ‘European questions.’147 Nevertheless, lest the CT’s attitude were to prove too ‘Euro-friendly,’ it added its own rider: viz., where a national court questions the conformity of a statute to

142 Ibid., at para. III.4.2; ibid., 1323, at 1337. 143 L. Garlicki, “Członkostwo Polski w Unii Europejskiej a sądy [The Membership of Poland in the European Union and Courts]” in E. Popławska (ed.), Konstytucja dla rozszerzającej się Europy [The Constitution for the expanding Europe], Instytut Spraw Publicznych, Warsaw (2000), at 215. 144 Absatzfonds, 31 Mai 1990, 2 BvL 12, 13/88, 2 BvR 1436/87: BVerfGE 82, 159. 145 See above at Chapter Three, point D.4.a. 146 SpA Granital c. Amministrazione delle Finanze: Corte cost. 5 giugno 1984, n. 170: Giur. cost. 1984, 1098. G. Sperduti, “Una sentenza innovativa della Corte costituzionale sul diritto comunitario” Riv. dir. inter. priv. proc. 1984, 263; M. Berri, “Composizione del contrasto tra Corte costituzionale e Corte di Giustizia delle comunità europee” Giur. it. 1984, I, 1521; P.A. Capotosti, “Questioni interpretative dell’attuale giurisprudenza costituzionale sui rapporti fra diritto interno e diritto comunitario” Giur. cost. 1987, I, 3810. 147 L. Garlicki, “Chronique 2006: Pologne” (2006) XXII AIJC 841, at 852.

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the Constitution, there would be no other possibility of finding the potential unconstitutionality of a statute other than on the basis of a decision by the CT.148 Yet even this rider was circumscribed, with the result that the national court’s ability—to refer to the CT a question of law on the conflict between a domestic statute and European law—itself became limited: first, by the conflicting rule contained in Constitution Art. 91(2); and secondly through means of applying the principles of European law, especially the principle of direct application (effect) of European law in the event of a conflict with a statute. 3. Direct Effect The principle of direct effect was fully discussed in domestic academic literature before accession,149 when the focus of the discussion was Constitution Art. 91(2) and (3) and its general form of precedence of application of the provisions of European law, either of the Treaties or of European secondary legislation over conflicting national laws. In the 2003 Accession Treaty case, Dec. K 18/04,150 the principle of direct effect was implicitly referred to in respect of the ECJ’s competence to declare a binding interpretation of European law: As the obligation to apply European law arises from – on the basis of constitutional authorisations – the ratified international agreements that are consistent with the Constitution, and that constitute for the Republic of Poland [obligations] binding upon [it under] international law (Art. 9 of the Constitution), it would be difficult to accept that independent judges (Art. 178(1)) or judges of the Constitutional Tribunal (Art. 195(1)) who are bound by the provisions of the Constitution, does not embrace the constitutional obligation to apply European law that is binding upon the Republic of Poland. Such an obligation is a legal consequence of the ratification, in accordance with the Constitution (and on its basis), of international agreements concluded with the Member States of [the] EU. As an element of these agreements, one finds the challenged Art. 234 EC [now Art. 267 TFEU] and the competence of ECJ to giving preliminary rulings concerning the answers to references and also to decide on the binding interpretation of European acts. [Emphasis supplied.]

148 Dec. P 8/00, 4 October 2000: OTK ZU 2000/6, Item 189; and Dec. P 4/99, 31 January 2001: OTK ZU 2001/1, Item 5. 149 Mik (1998); W. Czapliński, “Akty prawne Wspólnot Europejskich w orzecznictwie Trybunału Sprawiedliwości [EC legal acts in the case-law of the ECJ],” in Kruk (ed.) (1997), at 188; and A. Wyrozumska, “Formy zapewnienia skuteczności prawu międzynarodowemu w porządku krajowym [Forms of assurance of effectiveness of international law in the national legal order],” in Kruk (ed.) (1997), at 193ff; Safjan (2001), CoE, at 151–152; Wójtowicz (2001), at 4; and C. Mik & M. Górka, “The Polish Courts as Courts of the European Union’s Law,” in B. Banaszkiewicz et al., 1 Jahr EU Mitgliedschaft: Erste Bilanz aus der Sicht der polnischen Höchstgerichte, EIF Working Paper No. 15, Institut für Europäische Integrationsforschung, Österreichische Akademie der Wissenschaften, Wien (2005), 33, at 43. Available at: . Accessed 12 January 2007. Copy also on file with the author. 150 Dec. K 18/04, 11 May 2005: OTK ZU 2005/5A, Item 49, at para. III.11.4.

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The acceptance by the CT of the direct effect of EU provisions in primary and secondary law may also be gleaned from its earlier statements on the petitioners’ claim of the unconstitutionality of certain ECJ cases in particular as well as its line of case-law in general. The CT replied:151 “Regardless of subjective elements in ‘interpretation’ of this ‘line,’ what naturally can lead to most diverse results, the assessment of the jurisdiction of any of the [Union’s] organs is beyond the cognition of CT, precisely defined in Art. 188 of the Constitution.” Consequently, the CT152 could not judicially evaluate the statements of the ECJ in judgments selectively quoted by the petitioners as well as the allegations of incoherence between judgments of the ECJ and Constitution Arts. 8(1) and 91(3) since: “the Constitutional Tribunal fully appreciates the importance of the European Court of Justice and its rulings in the functioning of the EC and the EU.” The CT has thus clearly noted the principles developed by the ECJ—primacy or priority of application already having been discussed above—and appears to read Constitution Art. 91 as including interpretation of the international agreement and norms made by organs created under it (in this case, European primary and secondary law), and thereby accepting the principle of direct effect within constitutional limits: Constitution Art. 91 gives precedence to international agreements and laws made under them but such precedence is secured only for statutes. The subsequent case, Dec. P 37/05,153 dealt mainly with the priority of application of European primary and secondary law and concerned a conflict between the application of (directly effective) Art. 110(1) TFEU (then numbered Art. 90(1) EC) and a provision of a Polish statute. In highlighting the division of competences between the ECJ and national courts with the interpretation of European law being vested in the ECJ,154 the CT noted, “while the application … shall be entrusted to a national court which, in a given case, shall be bound by the case-law of the ECJ.” It accepted that, as well as being bound to apply domestic law directly, “a national court judge shall in addition be obliged to examine whether given facts of the case are subject to the norms of European regulation which are directly applicable [effective] in the territory of each Member State (see C-213/89 Factortame).” Factortame155 had dealt inter alia with the effective protection of EU rights before national courts according to Art. 4(3) TEU (ex-Art. 10 EC), based on their (putative) direct effect.156 Although Factortame dealt with the possible direct effect of Treaty Articles, the CT clearly regards the principle as equally applicable 151 Ibid., at para. III.9.1. 152 Ibid., at para. III.9.3. 153 Dec. P 37/05, 19 December 2006: OTK ZU 2006/11A, Item 177; [2007] 3 CMLR 48, 1323. 154 Ibid., at paras. III.4.1. and III.4.2; ibid., at 1335 and 1336. 155 Case C-213/89 R. v. Secretary of State for Transport, ex parte Factortame Ltd. [1990] ECR I-2433. 156 A.F. Tatham, “The Sovereignty of Parliament after Factortame” (1993) 28 EuR 188; and on Art. 4(3) TEU (ex-Art. 10 EC) and national courts, see generally J. Temple Lang, “The Duties of National Courts under Community Constitutional Law” (1997) 22 EL Rev. 3.

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to provisions of European secondary legislation. The CT in Dec. P 37/05 evidently admonishes ordinary and administrative courts to disapply domestic statutes conflicting with directly effective norms of European law:157 However, in certain situations relating to the conflict of a statute with European law, the competence of a court to refer a question of law becomes, in a sense, limited by virtue of both the conflicting rule contained in [Constitution Art. 91(2)], and the principles of applying [European] law, in particular, the principle of direct application [effect] of [European law] in the event of a conflict with a statute.

In this way, it is clear that the principle of direct effect has its place in the Polish legal order through a combination of Constitution Art. 91(2) and the developments under ECJ case-law. Nevertheless, this view of the CT confirms the limitation of applicability of direct effect vis-à-vis constitutional provisions, a matter discussed in more detail below.158 It also reflects the approach of the FCC in Kloppenburg159 wherein it had accepted the possibility of direct effect of European law and its priority over conflicting, sub-constitutional law. 4. References to the European Court of Justice Interestingly, the CT has accepted the relationship of co-operation that exists between the ECJ and national courts, as propounded by the German FCC in Maastricht. In its ruling in Dec. Kp 3/08,160 the CT stated:161 “The preliminary ruling procedure constitutes a fundamental mechanism of European Union law aimed at ensuring uniform interpretation and application of that law in all the Member States and enabling cooperation between national courts and the Court of Justice.” Earlier in Dec. P 37/05, the CT spelled out this relationship more clearly, with the Art. 267 TFEU (ex-Art. 234 EC) reference procedure constituting a fundamental mechanism of legal co-operation between national courts and the ECJ—the interpretation of European law resting with the latter, the application with the former,162 and thereby directly and mutually contributing to reaching a particular decision.163 Moreover, the CT noted that it had to be borne in mind that, pursuant to the principle of loyalty (as expressed in Art. 10 EC, now Art. 4(2) TEU), the preliminary ruling was to be binding for the referring court, and it would be the

157 Dec. P 37/05, 19 December 2006: OTK ZU 2006/11A, Item 177, at para. III.4.2; [2007] 3 CMLR 48, 1323, at 1338. 158 See below at Chapter Five, points E.2.c. 159 Kloppenburg, 8 April 1987, 2 BvR 687/85: BVerfGE 75, 223; [1988] 3 CMLR 1. 160 Dec. Kp 3/08, 18 February 2009: OTK ZU 2009/2/A, Item 9. 161 Ibid., at para. III.2.1. 162 Dec. P 37/05, 19 December 2006: OTK ZU 2006/11A, Item 177, at para. III.4.1; [2007] 3 CMLR 48, 1323, at 1336. 163 In support, the CT cited to Case 16/65 Schwarze v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1965] ECR 877.

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obligation of that court to take the ruling into account while considering the case on the merits. Clearly the decision to refer under Art. 267 TFEU is taken by an independent court or tribunal, acting when it has doubts about the validity or interpretation of European law.164 Moreover the referring court also carries the responsibility165 to include the ECJ’s answers in its ruling—failure to do so amounts to an infringement of European law and can, so the CT noted in Dec. P 37/05, constitute the basis for an Art. 258 TFEU (ex-Art. 226 EC) infringement procedure166 by the Commis sion against the Member State as well as the possibility of state liability according to Köbler.167 In the 2003 Accession Treaty case, the CT was at pains168 to distinguish between Art. 267 TFEU (ex-Art. 234 EC) and Constitution Arts. 188(1) and 190(1)—and thus avoid any pre-Simmenthal dual references to the ECJ and the CT. It stated:169 These are two separate things: the establishment of validity and interpretation of European law provisions made within the framework of Art 234 EC by the ECJ and Court of First Instance [now the GC]; and the comparison of the content of statutes and international agreements with the Constitution and the checking of their conformity by the Constitutional Tribunal’s adjudication within the scope of Art. 188(1) with the results defined in Art. 190(1) of the Constitution. The actions undertaken in these jurisdictions do not preclude each other and do not conflict with each other.

The CT further noted that it still had the possibility to review the constitutionality of a statute authorising ratification of an international agreement including those as defined in Constitution Arts. 90(1) and 91(3). Moreover, the CT did not agree with the petitioners that Art. 267 TFEU (ex-Art. 234 EC) was a threat to its competences and narrowed them down under Constitution Art. 188. The CT also admitted the possibility of its making a reference to the ECJ:170 If the Constitutional Tribunal would decide to bring a reference to the ECJ (or Court of First Instance [now the GC]) that will concern the validity or interpretation of a European law act (provision), then in such a situation – first – the Constitu tional Tribunal shall do so within the realisation of judicial competences determined in Art. 188 of the Constitution (therefore in accordance with this provision); 164 Dec. K 18/04, 11 May 2005: OTK ZU 2005/5A, Item 49, at para. III.10.3. 165 Dec. P 37/05, 19 December 2006: OTK ZU 2006/11A, Item 177, at para. III.4.1; [2007] 3 CMLR 48, 1323, at 1336. 166 Art. 258 TFEU: “If the Commission considers that a Member State has failed to fulfil an obligation under this Treaty, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union.” 167 Case C-224/01 Köbler v. Austria [2003] ECR I-10239. 168 Dec. K 18/04, 11 May 2005: OTK ZU 2005/5A, Item 49, at para. III.11.3. 169 Ibid., at para. III.11.3. 170 Ibid., at para. III.11.1. See M. Safjan, “Prymat prawa wspólnotowego nad konstytucją? [Primacy of EC Law over the Constitution?]” 2006/4 Europejski Przegląd Sądowy 4, at 8–9.

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In this way, having made very clear statements on the constitutionality and use of the ECJ reference procedure, the CT has so far followed the FCC171 in admitting its ability to refer questions but has yet to consider it necessary to exercise this part of its new-found jurisdiction. More recently, the CT was called upon in Dec. Kp 3/08172 to determine whether granting all Polish courts the competence to refer questions to the ECJ for a preliminary ruling, with regard to the validity and interpretation of acts from the field of police and judicial co-operation in criminal matters, as referred to in then Art. 35(1) TEU (since repealed by the Lisbon Treaty), might constitute the source of undue delay in the hearing of cases by courts, and at the same time infringe Constitution Art. 45(1) which, as will be seen in the next section, includes the right to a hearing without undue delay. The CT ruled that:173 [I]n the context of the indicated provision of the Constitution, which constitutes the higher-level norm for review in the present case, the preliminary ruling procedure regulated in the EC Treaty and the EU Treaty should be assessed in an analogical way to the procedures … which consist in referring questions to the Supreme Court, the [Supreme] Administrative Court or the Constitutional Tribunal by Polish courts. Since Poland’s accession to the European Union, the EU law has been part of the current legal system in Poland. Ratifying the Treaty of Accession, Poland accepted the separation of functions within the framework of the system comprising the institutions of the European Communities and the European Union. What remains an element of that separation is the jurisdiction of the Court of Justice of the European Communities to interpret Community (EU) law and ensure the uniformity of that interpretation (cf. [Dec.] K 18/04, [2003 Accession Treaty]).

The CT continued by noting that the structure of questions referred for a preliminary ruling, as stated in then Art. 35 TEU, facilitated giving proper rulings by national courts, which took into account the interpretation and assessment of validity of EU legal acts provided by the ECJ. Avoiding irregularities before rulings became final, and were referred for execution, was of special significance in the realm of criminal law, as making an erroneous judgment by a court often brings about grievous consequences which are difficult to remedy. The CT therefore stated that commencing a procedure aimed at eliminating doubts as to the interpretation or validity of an EU legal act did not amount to an unjustified delay that

171 Internationale Handelsgesellchaft (‘Solange I’), 21 Mai 1974: BVerfGE 37, 271; [1974] CMLR 540. 172 Dec. Kp 3/08, 18 February 2009: OTK ZU 2009/2/A, Item 9. See B. Nita, “Jurysdykcja TS w trzecim filarze UE – glosa do wyroku TK z 18.02.2009 r. [ECJ jurisdiction in the third pillar of the EU – commentary on Constitutional Tribunal judgment of 18 February 2009]” 2010/7 Europejski Przegląd Sądowy 47. 173 Dec. Kp 3/08, ibid., at para. III.4.2.

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would infringe the terms of Constitution Art. 45(1). While applicable then only to matters falling within then Art. 35 TEU, it might be argued that this indicates the general positive approach of the CT to the preliminary reference procedure. Such approach has been further underlined recently in EU Regulation, Dec. SK 45/09,174 when the CT determined that it had the jurisdiction to review the constitutionality of provisions of an EU Regulation within the context of a constitutional complaint under Constitution Art. 79(1). In expressly approving the FCC in Honeywell,175 the CT emphasised the need for co-operation with the ECJ in such process. Having noted the subsidiary nature of its own review jurisdiction, the CT continued:176 Before adjudicating on the non-conformity of an act of EU secondary legislation to the Constitution, one should make sure as to the content of the norms of EU secondary legislation which are subject to review. This may be achieved by referring questions to the Court of Justice for a preliminary ruling, pursuant to Article 267 of the TFEU, as to the interpretation or validity of provisions that raise doubts.

The wording above evidently encompasses the possibility not only of an ordinary domestic court of making a reference to the ECJ before the CT considers the constitutionality of the EU law provision but also of the CT itself, where no other Polish court has made such reference. Such approach is symptomatic of the CT’s understanding of EU law and its relationship with Polish (constitutional) law. a. Lawful Judge The German concept of lawful judge is not precisely replicated in Poland (the situation, as will be recalled, is the same in Hungarian constitutional law). Nevertheless, it is possible to determine the constitutional principle of the right to court177 as the Polish principle most closely approximating to the lawful judge principle: this viewpoint is supported by the case-law of the CT. As with the basic constitutional principles highlighted earlier in this Chapter,178 the constitutional right to court was initially developed by the CT in its rule-of-law jurisprudence under Art. 1 of the 1952 Constitution (as amended).179 Under the 174 Dec. SK 45/09, 16 November 2011: OTK ZU 2011/9A, Item 97. 175 Honeywell, 6 Juli 2010, 2 BvR 2661/06: BVerfGE 126, 286; [2011] 1 CMLR 33, 1067. 176 Dec. SK 45/09, 16 November 2011: OTK ZU 2011/9A, Item 97, at para. III.2.6. 177 B. Banaszak, Outline of Polish Constitutional Law, Wydawnictwo Uniwersytetu Wrocławskiego, Wrocław (2005), at 125–126. For a recent study, see A. Kubiak, Konstytucyjna zasada prawa do sadu w swietle orzecznictwa Trybunału Konstytucyjnego [The Constitutional Guarantee of the Right to Court in the Light of the Constitutional Tribunal’s Jurisprudence], Wydawnictwo Uniwersytetu Łódzkiego, Łódz (2006). 178 See above at Chapter Five, points B.2.-4. 179 I. Kondak, “‘The Right to Court’ in the Polish Constitution,” in M. Wyrzykowski (ed.), Constitutional Essays, Institute of Public Affairs, Warsaw (1999), 221, at 222–223; and Z. CzeszejkoSochacki, “Prawo do sądu w polskiej konstytucji [The Right to Court in the Polish Constitution]” 1997/11–12 PiP 86–105.

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1997 Constitution, the right is expressly provided for under Art. 45(1): “Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.” This provision is complemented by Art. 77(2) which reads: “Statutes shall not bar the recourse by any person to the courts in pursuit of claims alleging infringement of freedoms or rights.” The right to a court encompasses the following:180 (1) the right to access to a court, i.e., the right to commence proceedings before a court (an authority possessing certain characteristics, viz., impartial and independent; (2) the right to a fair and public trial;181 (3) the right to a court’s decision, i.e., to be granted a binding ruling in a given case by a court; and (4) the right to have cases examined by the authorities with an adequate organisational structure and position. It follows from these four criteria182 that the individual’s right to a court is exercised by the entirety of the principles which lead to a hearing that is fair and proper with regard to the subject matter as well as carried out within a reasonable time.183 Under the (amended) 1952 Constitution, the CT had decided in Dec. K 8/91184 that the right to court was an element of the rule of law principle. It held the citizens’ right of access to court, in order to allow them to protect their rights before an independent authority bound by law, was one of the fundamental foundations of a democratic state under the rule of law. Everyone’s right to a fair and public hearing (whether civil, criminal or administrative185) derived from the rule of law principle in Art. 1 of the (amended) 1952 Constitution: as an essential component of this principle, there was no room for a restricted interpretation of Art. 1 with respect to the right to court. Moreover, as held in Dec. K 21/96,186 the purpose of this right is to ensure individual protection against the arbitrariness of any state organ; the principle also provides, according to Dec. K 3/91,187 for the presumption of access to a court, irrespective of the absence of a statutory rule on the particular matter. The CT further emphasised, in Dec. W 14/94,188 that: “the right to court may not be conceived only in a formal manner, as access to court in general, but it demands 180 Dec. SK 12/99, 10 July 2000: OTK ZU 2000/5, Item 143; and Dec. SK 7/06, 24 October 2007: OTK ZU 2007/9/A, Item 108. 181 The CT has stated that: “a fair judicial procedure should ensure parties the procedural entitlements which would be adequate to the object of pending proceedings”: Dec. SK 5/02, 11 June 2002: OTK ZU 2002/4/A, Item 41, at 554; and also that: “in accordance with the requirements of a fair trial, the parties to proceedings must have a real possibility of presenting their arguments, and a court is obliged to consider them”: Dec. SK 32/01, 13 May 2002: OTK ZU 2002/3/A, Item 31, at 409. 182 Dec. Kp 3/08, 18 February 2009: OTK ZU 2009/2/A, Item 9, at para. III.3.1. 183 Dec. SK 19/98, 16 March 1999: OTK ZU 1999/3, Item 36. 184 Dec. K 8/91, 7 January 1992: OTK ZU 1992, Item 5; OTK 1992, I, 76. 185 L. Wiśniewski (ed.), Podstawowe prawa jednostki i ich ochrana prawna [Fundamental Rights of the Individual and their Judicial Protection], Wydaw. Sejmowe, Warszawa (1997), at 186–234. 186 Dec. K 21/96, 24 June 1997: OTK ZU 1997/2, Item 23. 187 Dec. K 3/91, 25 February 1992: OTK ZU 1992, Item 1. 188 Dec. W 14/94, 25 January 1995: OTK ZU 1995, Item 19.

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legally effective protection by a court.” Connected to this problem—under the requirement of a competent court—was the need to have a court possessing full jurisdiction over the merits of the case: a competent court is therefore one that is able to consider any point of law or fact raised by one of the parties to the proceedings.189 The right to appeal (or to a review) was only expressly recognised in the 1997 Constitution under Art. 78: “Each party shall have the right to appeal against judgments and decisions made at first stage. Exceptions to this principle and the procedure for such appeals shall be specified by statute;” and Art. 176(1): “Court proceedings shall have at least two stages.” It is however clear, from its role and jurisdiction, that these provisions do not apply to the CT.190 How then does this discussion impact upon the CT applying a lawful judge-type principle where a Polish court refuses to make a reference to the ECJ under Art. 267 TFEU? Through a reading of the Constitution, it might be possible for the CT to deduce such principle: on the one hand, it could refer to Art. 9 (that Poland “shall respect international law binding upon it”) and Art. 91 on the direct application and precedence over statutes of international treaties which together make the TFEU including Art. 267 TFEU (and its interpretation by the ECJ) binding on Polish courts; and, on the other, the CT could continue to argue that the right to court contained in Arts. 45(1) and 77(2) requires that claimants are not denied their ‘constitutional right’ to make a reference to the ECJ unless refused by the national court on the grounds set out in CILFIT (including acte clair and acte éclairé).191 Taking both points together would allow for the CT to follow the German model of lawful judge in respect of ECJ references. b. ECJ Ruling Priority From the academic point of view, it was a moot point before accession as to whether or not an express legal (constitutional) provision should be introduced into the Polish system which would require domestic courts to make preliminary references to the ECJ under the Art. 267 TFEU (ex-Art. 234 EC) procedure.192 189 Kondak (1999), at 233. 190 Nevertheless, even before the entry into force of the new Constitution, the CT had already determined in Dec. K 17/92 (29 September 1993: OTK ZU 1993, Item 33; OTK 1993, II, 297) that the possibility to appeal against the judgment of a court to a higher instance was part of the right to court and thereby the rule of law principle. 191 Case 283/81 Srl CILFIT v. Ministero della Sanità [1982] ECR 3415. Under the acte clair doctrine, the highest court is not obliged to refer either if the question has not yet been answered in the case law of the ECJ, but the answer to that question is beyond all doubt. Before it comes to the conclusion that such is the case, the national court or tribunal must be convinced that the matter is equally obvious both to the courts of the other Member States and to the ECJ. As regards acte éclairé, the highest court is not under an obligation to refer if the question that has arisen has already been answered in an earlier judgment of the ECJ. 192 In favour, e.g., Mik (1998) PiP, at 36–37; and against J. Skrzydło, “Konieczne zmiany w prawie polskim w perspektywie współpracy polskich z Trybunałem Wspólnot (Na podstawie art. 177

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Since no modification was attempted either to the 1997 Constitution or to the 1997 Constitutional Tribunal Act, the solution to these points has lain with the CT which has consequently filled the gaps through its rulings. In the 2003 Accession Treaty case, Dec. K 18/04,193 the CT admitted194 that it did not have the jurisdiction to assess directly the rulings of the ECJ—whether on individually or through a line of jurisprudence—since this was beyond its competence as defined in Constitution Art. 188:195 “[The] Constitutional Tribunal fully appreciates the importance of the ECJ and its judgments in the functioning of the EC and the EU.” The phrasing of the CT is redolent of ‘deconstitutionalising’ ECJ rulings and removing them from direct consideration by the CT, a practical application of the ‘two distinct yet co-ordinated legal systems’ theme which pervades the CT’s reasoning in the case; it might also be regarded as some form of implicit recognition of the priority of ECJ rulings within the ambit of the application of European law. On the alleged unconstitutionality of ECJ references,196 the CT noted that such references would only be made by domestic courts and tribunals that had a duty to apply European law.197 The field of application of European law had been determined by the scope of the transfer of competences on the basis of Constitution Arts. 90(1) and 91(3). On the basis of its exclusive competence (along with the respective jurisdiction of the CFI (now the GC)), the ECJ ruled on the validity and interpretation of European law. According to the CT,198 this interpretation occurred within the functions and competences delegated by the Member States to the EU and correlated with the principle of subsidiarity that determined the operation of EU institutions. The CT reiterated this position in Dec. P 37/05199 when it stated:200 Adjudicating by the ECJ within the preliminary ruling procedure constitutes an interlocutory action, which stays main proceedings before a national court, the latter being solely responsible for the delivery of a decision in the matter pending before it. The sole competence of the ECJ in such a case is to elucidate the [European] law provision or adjudicate upon the binding force thereof…. The aim of the preliminary ruling procedure is to ensure uniform application of [European] law by national courts of all Member States.

Traktatu WE) [Changes in Polish law needed in view of Polish courts’ co-operation with the ECJ (On the basis of EC Art. 177)]” 1998/8 PiP 89, at 91–92; and Barcz (1997–1998), at 34. 193 Dec. K 18/04, 11 May 2005: OTK ZU 2005/5A, Item 49. 194 Ibid., at para. III.9.1. 195 Ibid., at para. III.9.3. 196 Ibid., at para. III.10. 197 Ibid., at para. III.10.2. 198 Ibid., at para. III.10.2. 199 Dec. P 37/05, 19 December 2006: OTK ZU 2006/11A, Item 177; [2007] 3 CMLR 48, 1323. 200 Ibid., at para. III.4.1; ibid., at 1335.

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Returning to its 2003 Accession Treaty decision, the CT emphasised201 that the ECJ interpretation of European law was based on the assumption of mutual loyalty between the EU institutions and the Member States. E. Limits to National Court Acceptance 1. Introduction The CT—like the FCC202—has been forthright in its relationship with the Union legal order from the very start of its membership. The constitutionalisation of that legal order, as created and managed by the ECJ, thus remains in its eyes an essentially contested polity wherein the CT is called upon to play the role of guardian of the national constitution. In the cases so far, the CT has expressed that domestic constitutional limits may exist with respect to deepening integration but it has so far held back from entering into internecine judicial conflict in realising its own principles. However this position may have been compromised in Dec. SK 45/09203 when the CT actually conducted the review of a provision of an EU Regulation in Constitution Art. 79(1) complaint proceedings which examination even the FCC did not conduct in Solange I. 2. Essential Core as Limitation to Integration As already noted,204 Constitution Art. 90(1) allows for the transfer (of the exercise) of certain powers of the State to an international organisation. With this clear limitation, as with Hungary, the CT maintains its role to be able to review the extent to which EU law affects the basic principles of the Constitution. a. Pre-accession For the determination of these irrevocable values of the Constitution, it was suggested before accession that reference could be had to the Preamble of the Constitution205 and then to the principles forming part of the essential core of

201 Dec. K 18/04, 11 May 2005: OTK ZU 2005/5A, Item 49, at para. III.10.2. 202 See, e.g., National Implementation of EEC Regulations, 5 Juli 1967, 2 BvL 29/63: BVerfGE 22, 134, at 146–152; Steinike & Weinlig, 25 Juli 1979, 2 BvL 6/77: BVerfGE 52, 187; Internationale Handelsgesellschaft, 29 Mai 1974, 2 BvL 52/71: BVerf GE 37, 271, at 279; [1974] 2 CMLR 540, at 550; and Eurocontrol I, 23 Juni 1981, 2 BvR 1107, 1124/77 und 195/79: BVerfGE 58, 1, at 35ff. 203 Dec. SK 45/09, 16 November 2011: OTK ZU 2011/9A, Item 97. For a discussion on this case, see below at Chapter Five, point E.2.d. 204 See above at Chapter Five, point C.2. 205 Mik, in Mik (ed.) (1997), at 154.

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sovereignty,206 as previously outlined.207 Biernat208 noted the types of constitutional limits on Polish accession to the EU, in particular those constitutional rules that were essential to the very identity of the State209 and its most important characteristics. As mentioned earlier in this Chapter, the debate focused on which provisions of Chapter I of the Constitution formed the inviolable limits: for Biernat, it was obvious that these would include Constitution Arts. 2,210 3,211 5212 and 20213 that formed the basic characteristics of the Polish system and which could not be violated as a result of accession.214 b. 2003 Accession Treaty Case The recognition of the areas of national sovereignty which would remain inviolate as well as the monitoring of the borderline between powers transferred, powers shared, and powers retained at the domestic level, formed the very essence of the CT’s ruling in Dec. K 18/04 on the constitutionality of the 2003 Accession Treaty.215 This case was initiated by petitions from three different groups of Sejm deputies claiming that various provisions of the 2003 Treaty as well as of the EC and EU Treaties (which were required to be implemented in Poland by the terms of the 2003 Treaty) were contrary to the principles of sovereignty of the Polish Nation (e.g., Constitution, Preamble and Arts. 1, 2, 4, 5, 6 and 10) and of the supremacy of the Constitution over all other legal acts existing in the Polish legal order (Constitution Art. 8(1)). The CT ultimately ruled that the Accession Treaty as a whole and particular provisions of the various Treaties challenged by the petitioners did not infringe the Constitution. However, while acknowledging the multicomponent nature of the Polish legal order (particularly in respect of the situation

206 S. Biernat, “Constitutional Aspects of Poland’s Future Membership in the European Union” (1998) 36 AöR 398, at 405ff; and K. Wójtowicz, “Verfassungsmäßige Grundlagen des Beitritts Polens zur Europäischen Union,” in Maciejewski (1999), at 119. 207 See above at Chapter Five, point C. 208 Biernat (1998), at 406. 209 Constitution Art. 1: “The Republic of Poland shall be the common good of all its citizens.” 210 Constitution Art. 2: “The Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice.” 211 Constitution Art. 3: “The Republic of Poland shall be a unitary State.” 212 Constitution Art. 5: “The Republic of Poland shall safeguard the independence and integrity of its territory and ensure the freedoms and rights of persons and citizens, the security of the citizens, safeguard the national heritage and shall ensure the protection of the natural environment pursuant to the principles of sustainable development.” 213 Constitution Art. 20: “A social market economy, based on the freedom of economic activity, private ownership, and solidarity, dialogue and cooperation between social partners, shall be the basis of the economic system of the Republic of Poland.” 214 The present author would also add to such list the separation of powers in Constitution Art. 10: “(1) The system of government of the Republic of Poland shall be based on the separation of and balance between the legislative, executive and judicial powers.” 215 Dec. K 18/04, 11 May 2005: OTK ZU 2005/5A, Item 49.

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post-EU accession), the CT nevertheless determined that the Constitution remained the supreme law of the land according to Constitution Art. 8(1). The CT216 first observed the “constitutional assumption, that on the territory of the Republic of Poland, next to provisions enacted by the national legislature, the regulations created outside the system of national (Polish) legislative bodies are binding.” In accepting the multi-component nature of the domestic legal order, the CT added that European law was not totally external law since national bodies also participated in the process of its creation (i.e., through the making of secondary legislation in the Council of Ministers) and concluded:217 “Therefore in the territory of Poland there are both in force [binding] ‘sub-systems’ of legal regulations that originate from various legislative centres. They should co-exist on the basis of ‘mutual friendly’ interpretation and co-operative co-application. Those circumstances, from another perspective, could give rise to a potential conflict of norms and the ultimate supremacy of one of the distinct sub-systems.” Thus, according to Constitution Arts. 9, 87(1) and 90–91—the CT added—the Constitution recognised the multi-component structure provisions legally binding within Poland and provided a special procedure for their application: this special procedure had a close affinity to the one for constitutional amendment under Constitution Art. 235.218 The multi-component structure of law therefore occurred by virtue of the Constitution and could only be revoked following the Art. 235 constitutional amendment procedure.219 The issue of transfer of competences in respect of ‘certain matters’ under Constitution Art. 90(1) and its relation to national sovereignty has already been discussed.220 In its 2004 ruling, the CT expressly announced that the multicomponent structure ultimately gave way to the precedence of the 1997 Constitution:221 The priority of application of international agreements (as guaranteed in Art. 91(2)) ratified on the basis of authorisation by statute or nationwide referendum (according to Art. 90(3)), including agreements transferring competences “in relation to certain matters” – over the provisions of statutes that cannot be co-applied – does not lead directly to the acceptance of the analogous recognition of the priority of these agreements over the provisions of the Constitution. The Constitution is still then – because of its special legal force – ‘the supreme law of the Republic of Poland’ in relation to all international agreements binding upon the Republic of Poland. This also applies to ratified international agreements transferring competences “in relation to certain matters.” Therefore, by virtue of the legal power of the supremacy of the Constitution 216 Ibid., at para. III.2.1. 217 Ibid., at para. III.2.2. 218 A. Wyrozumska, “Some Comments on the Judgments of the Polish Constitutional Tribunal on the EU Accession Treaty and on the Implementation of the European Arrest Warrant” (2004–2005) XXVII Pol. YBIL 7, at 19. 219 Dec. K 18/04, 11 May 2005: OTK ZU 2005/5A, Item 49, at para. III.2.2. 220 See above at Chapter Five, point C.2. 221 Dec. K 18/04, 11 May 2005: OTK ZU 2005/5A, Item 49, at para. III.4.2.

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Evidently, such position on domestic constitutional primacy conflicts with that put forward by the ECJ on the supremacy of European law.222 Indeed the CT acknowledged the ECJ case-law in general on its reading of European law supremacy but nevertheless reiterated the position of constitutional primacy:223 The principle of supremacy of European law in relation to national law of Member States is strongly expressed by the case-law of the European Court of Justice. This state of affairs has been justified by the aims of European integration and the need to create a common European legal framework. This principle undoubtedly confirms the aspirations for guaranteeing the uniform application and execution of European law. However, it is not exclusively this principle that determines the final decisions of sovereign Member States in a situation of a hypothetical conflict between the [Union] legal order and a constitutional provision. In the Polish legal system, such decisions shall always be taken with consideration of the content of Art. 8(1) of the Constitution. According to it, the Constitution is still the supreme law of the Republic of Poland.

So far, this analysis has indicated that in the event of an irremovable conflict between the Polish Constitution and EU law, Constitution Art. 8(1) commands the CT to give precedence to the Constitution. While such conflicts are in fact relatively uncommon—see the number of cases before the FCC in Chapter Three— the CT was (and remains) heavily influenced by the FCC (especially in Solange I, Solange II and the Banana Market cases) in ruling out the priority of application of European law in view of its impermissible infringements on the protection of national constitutional rights:224 “Such a conflict cannot, in any event, be resolved in the Polish legal system by the recognition of the supremacy of a European provision over a constitutional norm. Moreover, it cannot lead to the situation whereby the constitutional norm will lose its binding force and will be substituted by a European norm, or to the restriction of its application only to the area that will not be covered by the European legal rule.” In such an event, the CT stated, it would be for the Polish legislator to decide either to amend the Constitution, or to have the European rule modified, or ultimately to decide on Polish withdrawal from the Union. Such decision would have to be taken by the Nation as sovereign, i.e., the Polish Nation or a state organ authorised by the Constitution to represent the Nation. The CT then turned to consider one example of how the essential core of sovereignty provided a limitation on the priority of application of European law in Poland:225

222 See above at Chapter One, point A. 223 OTK ZU 2005/5A, Item 49, at para. III.7. 224 Ibid., at para. III.6.4. 225 Ibid., at para. III.6.4.

the polish constitutional tribunal243 The norms of the Constitution concerning the rights and freedoms of individuals indicate the minimum and unsurpassable threshold that cannot be lowered or questioned because of the introduction of European provisions. The Constitution has here a guarantee role from the point of view of the protection of rights and freedoms clearly specified in it; the role is exercised with respect to all subjects active within the sphere of its application. The principle of the interpretation of domestic law in a manner “sympathetic to European law,” as formulated by the Constitutional Tribunal in its case-law, has its limits. In no case, can it lead to results that will be in conflict with the “clear tone” [express wording] of constitutional norms or impossible to reconcile with the minimum guarantee functions realised by the Constitution.

The CT concluded on this point that it did not recognise that possibility of questioning the validity of a binding constitutional norm because of the mere fact of the introduction into the European legal system of a European legal provision that would be in conflict with the Constitution. While individual rights and freedoms are used to exemplify the restrictions on the priority of European law vis-à-vis domestic constitutional norms, such restrictions are arguably embodied in other principles encompassed by the essential core of sovereignty (democracy, rule of law and separation of powers). The CT left open the possibility that primary European law could be submitted to control before it, e.g., whether the CT could measure a Treaty provision against national fundamental rights. The Constitution here does not exclude the jurisdiction of the CT.226 According to Constitution Art. 188, the CT decides on the conformity of international treaties with the Constitution. The theoretical possibility therefore remains of basing a constitutional complaint on the contradiction of a provision of European primary law with the Constitution.227 The actual likelihood of such a development is however seemingly remote. Barcz had argued that228 the democratic legitimation of the Accession Treaty, similar to a constitutional amendment, would invest it with an exceptional ‘power of existence.’ His contention then was that the constitutional act of integration represented an approval of the Constitution under the requirement that EU law and the basic concept of the Polish Constitution would agree on the same value concepts.229 For that reason, the possibility of the examination of primary European law had basically to be limited. Further it was considered that the mutuality of the values and aims could also represent, in practice, a good basis for the

226 Safjan (2001), CoE at 145. 227 Wójtowicz (1998), 89; Barcz (1998) PiP, at 16; Biernat (1999), Toruń, at 186. 228 J. Barcz, “Konstytucyjnoprawne problemy stosowania prawa Unii Europejskiej w Polsce w świetle dotychczasowych doświadczeń państw członkowskich [Constitutional problems of application of EU’s Law in Poland in the light of recent experiences of Member States],” in Kruk (1997), at 217ff. 229 K. Działocha, “Artykuł 91 [Article 91],” in L. Garlicki (ed.), Konstytucja Rzeczpospolitej Polskiej. Komentarz [The Constitution of the Republic of Poland. Commentary], Wydawnictwo Sejmowe, Warszawa (1999), at 10.

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harmonising solution of potential tension between constitutional provisions and European law.230 Although Treaties would formally enjoy a position between the Constitution and ordinary statutes, using the mutuality solution, there would only exist the exceptional possibility of conflict between the two legal orders. Such views were subsequently confirmed by the CT in its 2003 Accession Treaty ruling in which it observed:231 The concept and the model of European law have created a new situation when, at the same time and next to each other, autonomous legal systems are legally binding [in force]. Their interaction cannot be fully described by means of the traditional concepts of monism and dualism in the system: internal law—external law. The occurrence of the relative autonomy of the legal systems, based on domestic principles of hierarchy, does not preclude their interaction. Neither does it eliminate the possibility of the occurrence of conflicts between provisions of European law and provisions of the Constitution. This last situation will occur when one will find an irremovable conflict between the constitutional provision and a provision of European law, and moreover this conflict will still be irremovable when using the interpretation respecting the relative autonomy of European law and national law. One cannot preclude such situation, but it can occur only exceptionally because of the abovementioned shared values and principles [between the Constitution and the EU].

In Dec. K 18/04 on the 2003 Accession Treaty, the CT ruled that the EU and its institutions could only act within the framework of competences indicated in the provisions of the Treaties:232 “The Nation, by the acceptance of the Constitution in the referendum, has agreed to the possibility of the Republic of Poland being bound by the law passed by an international organisation or international organ, thus law other than treaty law. This happens within the boundaries [scope] provided for in the ratified international agreements.” (This presaged the CT’s views on conferral of powers in the subsequent Lisbon case.233) Since the principle of the sovereignty of the Nation occupied the place of primacy in Polish constitutional law,234 the CT took the view that—235 neither Art. 90(1) nor Art. 91(3) can constitute the basis for the delegation to an international organisation (or its organ) the authorisation to pass a law or make a decision that would contradict the provisions of the Constitution of the Republic of Poland. In particular, the mentioned provisions cannot form the basis for the delegation of competences that, as a result of delegation, will lead to the situation that the Republic of Poland would no longer function as a sovereign and democratic State. In this matter, the view of the Constitutional Tribunal is similar (convergent) as a rule with the

230 Jankowska-Gilberg (2003), at 430–431. 231 Dec. K 18/04, 11 May 2005: OTK ZU 2005/5A, Item 49, at para. III.6.3. 232 Ibid., at para. III.4.4. 233 See below at Chapter Five, point E.2.c. 234 Granat (2005), at 217. 235 Dec. K 18/04, 11 May 2005: OTK ZU 2005/5A, Item 49, at para. III.4.5.

the polish constitutional tribunal245 view of the Federal Constitutional Court of Germany (see decision of 12 October 1993 in case 2 BvR 2134, 2159/92 Maastricht) and of the Supreme Court of the Kingdom of Denmark (see decision of 6 April 1998 in the case of Carlsen v. Prime Minister of Denmark I 361/1997).

The CT’s approach was not universally accepted: Wyrozumska236 noted that the CT, despite its wording to the contrary, actually applied traditional concepts (dualism) whereas “the enduring achievement of the Community law is the monistic approach. The EC/EU law forms part of the national system (as one order).” She continued by underlining the ECJ’s own approach—contained in Internationale Handelsgesellschaft237—that no norm of national law, remaining in conflict with a European norm, might be applied including a constitutional norm (but this had no influence on the validity of the norm as such). In seeking to stress the CT’s attachment to the priority of application of the Constitution, Wyrozumska noted that the CT itself referred to the decisions of the FCC in Maastricht and the Danish Supreme Court in Carlsen which were in line with the CT’s ‘dualistic approach.’ Nevertheless, she was at pains to question whether the same solution should be applied in Poland considering the rather monist order provided under the 1997 Constitution, Art. 91(2) and (3). c. Lisbon Treaty Case Following the FCC and the HCC, the CT also dealt with the constitutionality of the Lisbon Treaty238 in Dec. K 32/09239 in which the CT built on its previous case-law, particularly Dec. K 18/04 on the 2003 Accession Treaty. Without examining the submissions in great detail, the senator petitioners in essence challenged the competences of EU bodies in the light of the new decision-making mechanisms and revision procedures, introduced by the Lisbon Treaty, referring to Art. 48 TEU240 and Art. 352 TFEU.241 They argued that the application of the new mechanisms 236 Wyrozumska (2004–2005), at 22. 237 Case 11/70 Internationale Handelsgesellschaft mbH v. Einfuhr-und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125. 238 2007 Lisbon Treaty: Dz. U. 2009, No. 203, Item 1569. The ratification statute, as required by Constitution Art. 90(1), was Act of 1 April 2008 on the Ratification of the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007: Dz. U. 2008, No. 62, Item 388. 239 Dec. K 32/09, 24 November 2010: OTK ZU 2010/9A, Item 108. See generally E. Dabrowska, “Judgment of 24 November 2010 Ref No. K 32/09 concerning the Treaty of Lisbon (Application Submitted by a Group of Senators” (2010) XXX Pol. YBIL 304. 240 Article 48 TEU provides for the ordinary amendment procedure (paras. 2–5) and the special amendment procedure (paras. 6–7) for the basic Treaties. 241 Article 352 TFEU (ex-Art. 308 EC, as amended) provides under para. 1: “If action by the Union should prove necessary, within the framework of the policies defined in 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. Where the measures in question are

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gave the EU carte blanche to extend its own competences, thereby infringing domestic constitutional procedures. Since there was no Treaty-based provision for the exercise of a possible veto over amendments to EU primary law, there was resulting infringement of the constitutional requirements for conferring national sovereign rights on the EU, viz. Constitution Art. 8 (declaring the primacy of the Constitution in the internal legal order) and Art. 90 (allowing for the transfer of the exercise of powers of state organs to international organisations ‘in certain matters’). i) Presumption of Lisbon Treaty Constitutionality Surprisingly, the CT started its ruling on the basis that the Lisbon Treaty was presumed to be constitutional242 since it had been ratified by the President of the Republic, upon consent granted by statute in accordance with Constitution Art. 90:243 “The Treaty of Lisbon, ratified in accordance with that procedure enjoys a special presumption of constitutionality. It should be emphasised that enacting the statute granting consent to the ratification of the Treaty occurred after meeting the requirements which were more stringent than those concern ing amendments to the Constitution.” Moreover both chambers of Parliament had acted under the conviction that it was constitutional and the President had ratified it without having previously referred it to the CT for preventive review.244 On that basis, the CT could only overturn such presumption of constitutionality if it were unable to interpret the Treaty or Constitution in a way which would allow it to rule the Treaty provisions constitutional.245 In determining the present case, the CT could not ignore the context of the effects of its decision and underscored its need to examine these effects from the point of view of constitutional values and principles, as well as the decision’s consequences for the sovereignty of the state and its constitutional identity. Such strong presumption of constitutionality, linked as it is to its case-law on the principle of a favourable predisposition towards European integration,246 and the contextualisation of its ruling appear as an attempt to ‘square the circle’—certainly the CT would examine the constitutional issues and give them due consideration but such issues would have to be capable of overturning its own

adopted by the Council in accordance with a special legislative procedure, it shall also act unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament.” 242 Dec. K 32/09, 24 November 2010: OTK ZU 2010/9A, Item 108, at para. III.1.1.2. 243 Ibid. Emphasis supplied. 244 Constitution Art. 133; and Dec. K 3/95, 7 March 1995: OTK 1995, Part 1, Item 5. 245 Dec. K 32/09, 24 November 2010: OTK ZU 2010/9A, Item 108, at para. III.1.1.2. 246 See below later in this section.

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(subjectively high?) standard of presumed constitutionality in order to succeed. This approach was, in fact, rejected by Granat, J. in his dissent247 on the grounds that: (a) it suggested a normative act enjoying such a presumption might be deemed constitutional provided the petitioner seeking review was unable to present special (unique) arguments for such review. Even the stringent requirements of Constitution Art. 90 did not guarantee a treaty’s constitutionality: the special procedure in that Article merely protected the constitutional order against defective and negligent conferral of competences; (b) preventive review commenced by the President covered statutes as well as treaties with the result that the argument of ‘a special presumption of constitutionality’ suggested that statutes should also enjoy it. In addition, the President had discretion in exercising his rights under Constitution Art. 133; and (c) the Constitution itself did not provide bases for grading the presumption of constitutionality of normative acts binding in the national legal order. In Granat, J.’s view then the presumption discussed by the majority of the bench could be boiled down to a simple tenet: “Every normative act is regarded as consistent with the Constitution, as long as it is not proved otherwise.” ii) Nature of Conferral of Competences and Limitations of Sovereignty In respect of conferral of competences, the CT agreed with academic doctrine248 that while states had renounced their powers to take autonomous legislative action in internal and external relations, this renunciation had not led to a permanent limitation of their sovereign rights. Since the conferral of competences was not irrevocable and the relations between exclusive and competing competences had a dynamic character, the Member States merely assumed the obligation jointly to conduct state duties in areas of co-operation. Consequently, provided the states maintained their full ability to specify the forms of conducting state duties (a matter that was concurrent with the competence to determine competences or ‘Kompetenz-Kompetenz’), they remained—according to international law—sovereign subjects. The CT continued:249 There are complicated processes of mutual dependencies among the Member States of the European Union, relating to conferring part of the competences of state organs on the Union. However, these states remain the subjects of the integration process, maintain “the competence of competences” and the model of European integration retains the form of an international organisation.

247 Dec. K 32/09, 24 November 2010: OTK ZU 2010/9A, Item 108, dissenting Opinion of Granat, J., para. 1. 248 Dec. K 32/09, ibid., at para. III.2.1. 249 Ibid.

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This last point is most revealing and echoes the German FCC’s own Lisbon ruling.250 This point is subsequently confirmed when the CT cites,251 with apparent approval, the Maastricht/Lisbon rubric of the FCC,252 according to which the EU was an association of sovereign states (‘Staatenverbund’) with the Member States remaining ‘masters of the Treaty.’ By emphasising the EU’s status as an international organisation, the CT reinforced the voluntary limitations on sovereignty that had arisen from the will of the Polish state to join and participate in European integration, as being in accordance with international law and thus retaining its sovereignty and independence, and with it the confirmation of the primacy of the Polish Nation to determine its own fate. In fact, the CT believed:253 “incurring international liabilities and managing them do not lead to the loss or limitation of the state’s sovereignty, but it is its confirmation, and membership in the European structures does not, in fact, constitute a limitation of the state’s sovereignty, but it is its manifestation.” Such limitation was compensated for by the possibility of participation in the EU decision-making process.254 iii) Limitations to Conferral of Competences Recalling its previous arguments in Dec. K 18/04,255 the CT reaffirmed that Con stitution Art. 90 prohibited: (1) conferring all the competences of a given state organ; (2) conferring competences in all matters in a given field; and (3) conferring the competences in relation to the essence of the matters determining the remit of a given state organ. Thus it was necessary to determine precisely the areas and indicate the scope of competences which were subject to conferral although it admitted256 that “the limits of competences are not, and may not, be sharp.” Furthermore a possible change of the manner and object of conferral required the observance of the rules on constitutional amendment. The Lisbon decision added a gloss257 to Dec. K 18/04 by stating that the conferral of competences could not be understood in such a way that would allow a possibility for determining any competences that might be presumed to be conferred. The CT had previously stressed that it was impossible in a democratic state under 250 Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267; [2010] 3 CMLR 13, 276. 251 Dec. K 32/09, 24 November 2010: OTK ZU 2010/9A, Item 108, at para. III.3.8. 252 See above at Chapter Three, points C.2.b. and E.2. 253 Dec. K 32/09, 24 November 2010: OTK ZU 2010/9A, Item 108, at para. III.2.1. 254 L. Garlicki, Polskie prawo konstytucyjne [Polish Constitutional Law], 13th ed., Liber, Warszawa (2009), at 57. 255 Dec. K 18/04, 11 May 2005: OTK ZU 2005/5A, Item 49, at para. III.4.1. 256 Dec. K 32/09, 24 November 2010: OTK ZU 2010/9A, Item 108, at para. III.2.3. See A. KastelikSmaza, “Spór o prymat prawa europejskiego po wejściu w życie Traktatu z Lizbony [Dispute over the Supremacy of European Law under the Treaty of Lisbon]” 2010/4 Przegląd Sejmowy 63, at 75. 257 Dec. K 32/09, ibid.

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the rule of law to create presumed competences which position, it added, applied equally to the EU:258 “The conferral of competences may not result in gradual deprivation of the state of its sovereignty, due to allowing the possibility of conferring competences ‘in relation to certain matters.’” As an exception to the principle of independence and sovereignty,259 then, the conferral of competences might not be interpreted in a broad sense. In addition, such conferral could not act as a premise for allowing a presumed constitutional amendment thus bypassing the requirements of Constitution Art. 90(1).260 Such a bypassing would occur if a broad interpretation of the scope of conferred competences were recognised in particular either by allowing for a possibility of conferring competences on a subject other than an international organisation or institution, or by including—within the scope of conferred competences—the competences which had not been conferred to be in fact recognised as having been conferred.261 Thus, since the power to decide which competences could be conferred and which not was vested in the relevant Polish authorities,262 the subject upon which the competences had been conferred could not independently extend the scope of these competences.263 iv) Constitutional Identity as the Limitation to the Conferral of Competences on the EU In Lisbon, the CT clearly defined what it understood as the ‘essential core’ of national sovereignty, by employing the concept of ‘constitutional identity’264 previously used by the German FCC in its own Lisbon decision265 as well as by Czech266 and Hungarian267 courts in their own rulings on the constitutionality of that Treaty. From the point of view of sovereignty and the protection of other constitutional values, the CT held268 that what was significant was the limitation of

258 Ibid. 259 Garlicki (2009), at 55. 260 See above at Chapter Five, point C.2. 261 Dec. K 32/09, 24 November 2010: OTK ZU 2010/9A, Item 108, at para. III.2.3. 262 Ibid., at para. III.2.2. 263 K. Wojtyczek, Przekazywanie kompetencji państwa organizacjom międzynarodowym, Wydawnictwo Uniwersytetu Jagiellońskiego, Kraków (2007), at 120. 264 K. Wójtowicz, “Zachowanie tożsamości konstytucyjnej państwa polskiego w ramach UE – uwagi na tle wyroku TK z 24.11.2010 r. (K 32/09) [Maintaining the constitutional identity of the Polish state within the EU – remarks against the background of Constitutional Tribunal’s judgment of 24 November 2010 (K 32/09)]” 2011/11 Europejski Przegląd Sądowy 4; and P. Bogdanowicz, “Glosa do wyroku TK z dnia 16 listopada 2011 r., SK 45/09” 2012/9 Europejski Przegląd Sądowy 47. 265 See above at Chapter Three, point E.2.d. 266 See above at Chapter Three, point F. 267 See above at Chapter Four, point E.2.d. 268 Dec. K 32/09, 24 November 2010: OTK ZU 2010/9A, Item 108, at para. III.2.6.

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conferral of competences ‘in relation to certain matters’ under Constitution Art. 90(1) and thus269 “without infringing the ‘core’ competences, which allow for sovereign and democratic determination of the fate of the Republic of Poland, pursuant to the Preamble to the Constitution.” The CT highlighted in particular provisions of the Preamble as well as Constitution Arts. 2, 4, 5, 8, 90, 104(2) and 126(1),270 in the light of which the sovereignty of the Republic was expressed in the inalienable competences of the organs of the state, thereby making up the constitutional identity of the state. The notion of ‘inalienable competences’ may be considered as a pale reflection of the unamendable provisions of the German Constitution Art. 79(3).271 While evidently regarding it as difficult to set out a detailed catalogue of inalienable competences, the CT nevertheless held (in echoes of the FCC’s own Lisbon judgment272) that the following matters were to be included among those completely prohibited from conferral:273 decisions specifying the fundamental principles of the Constitution and decisions concerning the rights of the individual which determine the identity of the state, including, in particular, the requirement of protection of human dignity and constitutional rights, the principle of statehood, the principle of democratic governance, the principle of a state under the rule of law, the principle of social justice, the principle of subsidiarity, as well as the requirement of ensuring better implementation of constitutional values and the prohibition to amend the Constitution and the competence to determine competences.

In addition, it later mentioned274 competences constituting the essence of sovereignty, which included, in particular, the enactment of constitutional rules and the control of their observance, the judiciary, the power over the state’s own territory, armed forces and the forces guaranteeing security and public order.275 Guaranteeing the preservation of national constitutional identity and the limits of conferral of competences—on the basis of Constitution Art. 90—was an ongoing process and not a ‘once-and-for-all’ conferral which would pave the way for further conferrals bypassing that Article, otherwise it would be deprived of its normative value. As a result, Art. 90 had to be applied with respect to amendments

269 Ibid. 270 Constitution, Art. 104(2) provides for the wording of the oath to be sworn by deputies on taking their seats in the Sejm; and Art. 126(1) provides that the President of Poland is to be the supreme representative of the Republic and the guarantor of the continuity of state authority. 271 See above at Chapter Three, point B.1. 272 See above at Chapter Three, point E.2.d. 273 Dec. K 32/09, 24 November 2010: OTK ZU 2010/9A, Item 108, at para. III.2.3. Cf Wojtyczek (2007), at 284ff. 274 Dec. K 32/09, ibid., at para. III.2.2. 275 In themselves, these reflected some of the competences, recognised expressly under Art. 4(2) TEU, which were regarded as forming part of a State’s national identity and therefore not subject to regulation by the EU.

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to the Treaties forming the basis of the EU, if those amendments were to lead to the conferral of competences on the EU.276 v) Role of the Constitutional Tribunal Protecting Constitutional Identity The CT reaffirmed its role as guardian of Polish sovereignty in the face of deepening European integration and acknowledged that constitutional identity formed the yardstick for review of EU developments, as it had with other such courts reviewing the Lisbon Treaty:277 The constitutional courts of the Member States share – as a vital part of European constitutional traditions – the view that the constitution is of fundamental significance as it reflects and guarantees the state’s sovereignty at the present stage of European integration, and also that the constitutional judiciary plays a unique role as regards the protection of the constitutional identity of the Member States, which at the same time determines the treaty identity of the European Union.

In determining whether or not the Lisbon Treaty impinged upon Polish constitutional identity, the CT278 had to balance the protection of the State’s sovereignty in the process of European integration against the constitutional principle of a favourable predisposition towards the process of European integration and the co-operation between States, noting from its previous case-law279 that “the constitutionally correct and preferred interpretation of law is the one which serves the implementation of the indicated constitutional principle.” It found, in fact, that the model of the European Union under the Lisbon Treaty actually respected those two principles:280 “This finds confirmation in the full compatibility of the values and aims of the Union, determined in the Treaty of Lisbon, as well as the values and aims of the Republic of Poland, determined in the Constitution of the Republic of Poland, and in specifying the principles of allocation of competences between the Union and its Member States.” In this way, the CT underlined a vital characteristic of the culture of European integration, viz., mutual loyalty between the Member States and the Union. Of particular interest to the present research is the view of the CT in Lisbon towards the FCC’s ruling on the same Treaty.281 While adopting the ‘conferral of competences’ and ‘constitutional identity’ terminology of the FCC in Lisbon as well as citing to its re-affirmation of the Maastricht-based ‘Staatenverbund’ rubric,

276 See the draft amendment to the Constitution, prepared by a team led by K. Wójtowicz: AAVV, Zmiany w Konstytucji RP dotyczące członkowsta Polski w Unii Europejskiej, Bureau of Research of the Chancellery of the Sejm, Warszawa (2010), at 28. 277 Dec. K 32/09, 24 November 2010: OTK ZU 2010/9A, Item 108, at para. III.3.8. 278 Ibid., at 2.2. 279 Dec. K 11/03, 27 May 2003: OTK ZU 2003/5A, Item 43. 280 Dec. K 32/09, 24 November 2010: OTK ZU 2010/9A, Item 108, at para. III.2.2. 281 See above at Chapter Three, point E.2.d.

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the CT nevertheless decided overall to follow a different course. It emphasised the point that it was not responsible for specifying either the content of the statute granting consent to ratification of a treaty under Constitution Art. 90 or the rules of participation of the parliament and government as regards implementation of the Lisbon Treaty. The petitioners had voiced an expectation that the CT would specify the tasks of the legislator related to the Treaty’s ratification, by analogy to the FCC in Lisbon. In very clear terms, the CT disabused the petitioners of that notion:282 However, this expectation does not take into account the vital differences between the Constitution of the Republic of Poland and the Basic Law for the Federal Republic of Germany, when it comes to regulating the systemic foundations of European integration. It is the task of the Polish constitution-maker and legislator to resolve the problem of democratic legitimacy of the measures provided for in the Treaty, applied by the competent bodies of the Union.

The impact of this wording still resonates, stressing the distinctive approaches to European integration adopted by the two constitutional courts, with the CT seeking a more accommodating stance than that usually exhibited by the FCC. The CT’s adoption of the vocabulary of the FCC and the association of sovereign states image might play well to some in the Polish domestic audience; but it evidently cannot be accused of blindly following Karlsruhe in dealing with the problems posed by ever-deepening EU integration. d. Constitutionality of Regulations However, the CT is not averse to striking out beyond what the FCC has already done. As seen in Chapter Three,283 Solange I saw the FCC threatening to review provisions of an EEC Regulation against domestic constitutional provisions, only to step back in Solange II and Banana Market. In Dec. SK 45/09,284 the CT went one step further and actually carried out such a review. Concerns had in fact been raised in the pre-accession period as to whether or not European secondary legislation (i.e., Regulations and Directives) might be subject to constitutional review. While the issue of Directives will be dealt with more fully in the next section, the issue of the possible constitutional review of 282 Dec. K 32/09, 24 November 2010: OTK ZU 2010/9A, Item 108, at para. III.2.6. 283 See above at Chapter Three, point E.2.a. 284 Dec. SK 45/09, 16 November 2011: OTK ZU 2011/9A, Item 97. I. Chojnacka & M. Nowicki, “Wyrok TK z dnia 16 listopada 2011 r. sygn. akt SK 45/09 [dot. jurysdykcji, uznawania i wykonywania orzeczeń sądowych w sprawach cywilnych i handlowych (rozporządzenie Rady nr 44/2001)] [Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (judgment of the Constitutional Tribunal dated 16 November 2011, files No. SK 45/09)]” (2012) VIII/1 Zeszyty Naukowe Sądownictwa Administracyjnego 86; and A. Wróbel, “Nowa perspektywa europejskiego dialogu sędziów i trybunałów – wyrok TK z 29.11.2011 r.” 2012/1 Europejski Przegląd Sądowy 1.

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Regulations was mooted by authors and it was at least considered arguable that such review was possible.285 The wording of Constitution Art. 91(3)286 provided a basis for immediate application of European secondary law in Poland but, at the same time, it left several questions open: e.g., as to the position of the provisions of European secondary law in the domestic system of sources of law since Constitution Art. 87 does not mention such European law as a source of law in Poland and it was rather viewed as belonging to an autonomous legal order.287 As later approved by the CT in the 2003 Accession Treaty case,288 European secondary law is based on the constitutive acts of the EU and their legality, binding nature and direct applicability/direct effect are defined according to these acts. They function in the area where Polish state authority has divested itself of its legislative competences on behalf of the EU organs.289 In addition, there was the issue of the competence of the CT in relation to the provisions of European secondary legislation. Constitution Art. 188 does not provide for such review control since Regulations and Directives are neither treaties under para. 1 nor are they qualified as a set of decrees issued by the central organs of state under para. 3.290 Nevertheless, it was suggested291 that there might be the possibility of a challenge to a Regulation under Constitution Art. 79 which allows a constitutional 285 S. Biernat, “Miejsce prawa pochodnego Wspólnoty Europejskiej w systemie konstytucyjnym RP [The Place of derived law of the EU in the Polish constitutional system],” in Mik (ed.) (1997), at 182; K. Wójtowicz, “Skutki przystąpienia Polski do Unii Europejskiej dla Sądów i Trybunału Konstytucjnego [The Consequences of Polish EU Accession for the courts and the Constitutional Tribunal],” in Z. Witkowski (ed.), Wejście w życie nowej Konstytucji Rzeczypospolitej Polskiej [Entry into force of the new Polish Constitution], Wydawnictwo UMK, Toruń (1998), at 89; and Safjan, (2001), CoE, at 146. 286 In respect of European secondary legislation, Constitution Art. 91(3) states: “If a treaty, ratified by the Republic of Poland, establishing an international organisation so provides, the laws established by it shall be applied directly and have precedence in the event of a conflict of laws.” 287 Wójtowicz (1998), Toruń, at 86. However, as will be seen, the PCT has seen fit to review the constitutionality of the provisions of an EU Regulation and, more recently, considered financing projects and operational programmes established and funded by the EU but whose evaluation and project choices remained in the realm of the Polish authorities: Dec. P 1/11, 12 December 2011, OTK ZU 2011/10A, Item 115. See R. Pózdzik & K. Brysiewicz, “Ocena i wybór projektów do dofinansowania z funduszy unijnych w Polsce – uwagi na tle wyroku TK z 12.12.2011 r. (P 1/11)” 2012/10 Europejski Przegląd Sądowy 10. 288 Dec. K 18/04, 11 May 2005: OTK ZU 2005/5A, Item 49. 289 This view was challenged by Mik who submitted that the institutional (secondary) law belonged by the force of the ratified international treaty to the national legal order. It thereby became a source of Polish law despite the absence of clear wording to that effect in Constitution Art. 87: Mik, in Mik (ed.) (1997), at 159. Such a view was open to debate on the grounds that it contradicted the concept of the autonomy of the EU legal order and led as well to the undermining of the principle of the exclusive jurisdiction of the ECJ: Safjan (2001), CoE, at 148–149. 290 Safjan (2001), CoE, at 146–147. 291 T. Jaroszyński, “Rozporządzenie wspólnotowe jako przedmiot skargi konstytucyjnej [EC Regulation as a subject of the constitutional complaint]” 2007/4 Europejski Przegląd Sądowy 26, at

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complaint against a statute or other normative act violating constitutionally guaranteed rights and freedoms. There was the further possibility of control over a provision of European secondary legislation through a legal inquiry, directed to the CT, by a court judging a specific case. According to Constitution Art. 193, any Polish court can refer a question of law to the CT as to conformity of a ‘normative act.’ However, it was arguable as to whether or not European secondary law could be regarded as ‘normative acts’ falling within the scope of either Constitution Art. 79 or Art. 193.292 Barcz advocated the theory that a normative act was every act which was applicable in Poland:293 consequently, the CT—in order to satisfy the duties which European law imposed—would have to limit the exercise of its review competences against European law vis-à-vis the examination of the infringement of the content of the essential core of sovereignty. Then it would have to determine that its intervention was no longer necessary as long as fundamental rights in the EU were sufficiently protected, thus following the German example.294 This interpretation would clearly not have been fully compliant with European law, according to the interpretations of the ECJ stating that European law enjoys priority even over the Constitution.295 The possibility of constitutional review of EU Regulations296 was subject to differing approaches from the CT, linked to the basis for such review. Accordingly, in Dec. U 6/08,297 in the context of an abstract norm control brought by a group of Sejm deputies, the CT stated obiter dictum that constitutional review—under 27–30; S. Biernat, “Constitutional Aspects of Poland’s Future Membership in the European Union” (1998) XXXVI/4 AVR 398, at 422. 292 Jaroszyński (2007), at 31; Działocha, in Garlicki (ed.) (1999), at 9; Barcz, in Kruk (ed.) (1997), at 221. 293 With this interpretation, the decisions of the CT ought to be compatible: Barcz (1998) PiP, at 16; A. Wasilewski, “Przedstawianie pytań prawnych Trybunałowi Konstytucyjnemu przez sądy (art. 193 Konstytucji RP) [Submitting references to the Constitutional Tribunal by courts (Art. 193 of the Constitution of the Republic of Poland]” 1999/8 PiP 25, at 30. In fact, Garlicki has noted (L. Garlicki, Polskie prawo konstytucyjne [Polish Constitutional Law], 5th ed., Liber, Warszawa (2001), at Item 349) that the CT proceeds from a material concept of normative acts. According to this understanding, a normative act is every legal act regardless of its designation, which contains legal norms, therefore a general binding rule, that is addressed to an indeterminate number of persons: cf. Dec. U 22/97, 24 March 1998: OTK ZU 1998/2, Item 16. 294 Jaroszyński (2007), at 32; and S. Biernat, “Czy konieczne są zmiany w Konstytucji przed przystąpieniem Polski do Unii Europejskiej?,” in J. Barcza & S. Biernat (eds.), Czy zmieniać Konstytucję? Ustrojowo-konstytucyjne aspekty przystąpienia Polski do Unii Europejskiej, Instytut Spraw Publicznych, Warszawa (2002), 41, at 65. 295 Nevertheless, one author argued that this could be tolerated: Jankowska-Gilberg (2003), at 436. 296 Further arguments on the possibilty of constitutional review of EU Regulations were discussed in T. Jaroszyński, Rozporządzenie Unii Europejskiej jak składnik systemu prawa obowiązującego w Polsce, LEX Wolters Kluwer Polska, Warszawa (2011), at 337–338; and K. Wojtyczek, Przekazywanie kompetencji państwa organizacjom międzynarodowym: wybrane zagadnienia prawnokonstytucyjne, Wydawnictwo Uniwersytetu Jagiellońskiego, Kraków (2007), at 323–328. 297 Dec. U 6/08, 17 December 2009: OTK ZU 2009/11A, Item 178.

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Constitution Art. 188(1)-(3)—of norms of EU secondary legislation was inadmissible. However, in the context of Constitution Art. 79(1) proceedings, the CT had earlier ruled in Dec. SK 54/05298 that a normative act that could be the subject of a constitutional complaint included international agreements, in this case Protocol No. 4 to the EEC-Poland EA.299 The matter was finally determined in Dec. SK 45/09,300 in which a constitutional complaint was before the CT against the provisions of an EU Regulation. The case centred on a civil damages award made against the complainant by a Belgian court, within the overall context of criminal proceedings, which judgment the Court of Appeal in Warsaw ultimately determined to be recognised and enforceable in Poland under the Brussels I Regulation.301 In her constitutional complaint, the complainant contended, inter alia, that Art. 41, second sentence of the Brussels I Regulation302 was contrary to Constitution Arts. 32(1)303 and 45(1).304 The essence of the right to a fair trial under Constitu tion Art. 45(1), she argued, was the right of a party to present evidence, assertions and arguments. However, the Regulation denied her (the debtor against whom enforcement of the damages order was sought) the right to participate and make submissions in the first instance (Polish) proceedings concerning the enforceability of the foreign (Belgian) court judgment. As will be seen below, the case raised sensitive issues similar to the FCC cases of Solange II (Wünsche)305 and Banana Market306 as well as Honeywell:307 the CT ultimately ruled that the challenged EU provision was constitutional. Before proceeding to the substance, the CT had to rule initially on the admissibility of the proceedings: under Constitution Art. 79(1), in the context of a constitutional complaint, the CT has the power to rule on the conformity to the

298 Dec. SK 54/05, 18 December 2007: OTK ZU 2007/11A, Item 158. 299 Protocol No. 4 to the EEC-Poland Europe Agreement: 1992 OJ L114/68. Protocol No. 4 concerned the definition of the concept of originating products and methods of administrative co-operation. 300 Dec. SK 45/09, 16 November 2011: OTK ZU 2011/9A, Item 97. 301 Regulation 44/2001/EC on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters: OJ 2001 L12/1 (the ‘Brussels I Regulation’). See, e.g., M. Bogdan, Concise Introduction to EU Private International Law, 2nd ed., Europa Law Publishing, Groningen (2012), at 31–92. 302 Brussels I Regulation, Art. 41 reads: “The judgment shall be declared enforceable immediately on completion of the formalities in Article 53 without any review under Articles 34 and 35. The party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submissions on the application.” 303 Constitution Art. 32(1) reads: “All persons shall be equal before the law. All persons shall have the right to equal treatment by public authorities.” 304 Constitution Art. 45(1) reads: “Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.” 305 See above at Chapter Three, point E.2.a. 306 See above at Chapter Three, point E.2.c. 307 Honeywell, 6 Juli 2010, 2 BvR 2661/06: BVerfGE 126, 286; [2011] 1 CMLR 33, 1067.

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Constitution of “a statute or another normative act.” The CT needed to determine whether or not an EU Regulation was ‘another normative act’ and, for that, it had to establish whether the subjects of constitutional complaints—to which Constitution Art. 188(5) referred—were limited to those legal acts expressly mentioned in Constitution Art. 188(1)-(3) or covered other, non-enumerated normative acts.308 Previously the CT had considered that the term ‘another normative act’ in Art. 79(1) constitutional complaints went beyond those legal acts indicated in Art. 188(1)-(3) and covered not only acts resulting from the law-making activity of Polish state organs309 but also international agreements (as indicated above, in Dec. SK 54/05310). The CT consequently ruled that legal acts issued by an organ of an international organisation, primarily EU secondary legislation, were also normative acts susceptible to challenge under Constitution Art. 79(1) as these were legal acts that constituted part of the legal system binding in Poland and shaped the legal situation of the individual. It supported its argument by comparing its own definition of a ‘normative act’ with ECJ case-law on the nature of EU Regulations311 in order to reinforce its own view that the latter—as normative acts—could be reviewed under Constitution Art. 79(1) although such review possessed a special character and needed to be exercised with due caution and restraint. As the basis of its approach to this issue, the CT emphasised the duty of sincere co-operation under Art. 4(3) TEU between the EU and its Member States and the separate—though complementary and co-operative—roles of the ECJ and the CT in examining the legality of an EU 308 For the definition of a ‘normative act,’ see the CT in Dec. U 15/88, 7 June 1989: OTK ZU 1989, Item 10, in which it determined that: “[A] normative act is a legal act that establishes legal norms which are general in character (and thus addressed to a certain group of addressees singled out due to a common characteristic shared by them) as well as abstract in character (i.e. they establish certain models of conduct).” 309 Dec. SK 42/02, 6 October 2004: OTK ZU 2004/9A, Item 97. In Dec. Ts 139/00, 6 February 2001, OTK ZU 2001/2, Item 40, the CT noted that “the scope of provisions which are subject to review (the subject of a constitutional complaint) is set autonomously and exhaustively by Constitution Art. 79(1).” 310 Dec. SK 54/05, 18 December 2007: OTK ZU 2007/11A, Item 158. 311 The CT cites to a number of ECJ cases: (i) Case 101/76 Koninklijke Scholten Honig NV v. Council [1977] ECR 797, where the ECJ referred to Regulations as “a measure which applies to objectively determined situations and produces legal effects with regard to categories of persons regarded generally and in the abstract”; (ii) Case 242/81 SA Roquette Frères v. Council [1982] ECR 3213, in which the ECJ stated that: “A measure does not cease to be a regulation because it is possible to determine more or less exactly the number or even the identity of the persons to whom it applies at any given time as long as it established that such application takes effect by virtue of an objective legal or factual situation defined by the measure in question in relation to its purpose”; (iii) Case 34/73 Fratelli Variola SpA v. Amministrazione italiana delle Finanze [1973] ECR 981 in which the ECJ noted that, as Regulations are directly applicable, they do not require implementation into national law; (iv) Case C-253/00 Antonio Muñoz y Cia SA v. Frumar Ltd. [2002] ECR I-7289, the norms of EU Regulations may be a source of the rights and obligations of individuals; and (v) Case 9/73 Schlüter v. Hauptzollamt Lörrach [1973] ECR 1135, on the possible direct effect of provisions of a Regulation.

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Regulation, respectively against EU primary law and the Polish Constitution. The CT’s well-established openness to EU law312 is underlined by its consideration of several ways to avoid declaring unconstitutional (provisions of) EU secondary legislation.313 It first considered314 its self-created principle of a Euro-friendly interpretation of national law through which the CT would approach EU law “with the utmost respect” and “on the basis of mutually acceptable interpretation and co-operative application” so that “any contradictions should be eliminated by applying an interpretation that respects the relative autonomy of EU law and national law.” Moreover, constitutional review of EU Regulations was to be regarded as independent and subsidiary vis-à-vis the jurisdiction of the ECJ, leading the CT expressly to adopt the FCC’s approach in Honeywell.315 In that case, it will be recalled, the FCC considered it necessary—before ruling on the constitutionality of a (norm of) EU secondary legislation—for an Art. 267 TFEU reference to be made in order to determine the content of the EU norm subject to constitutional review. Here, the CT clearly acknowledged its duty to make a reference and justified this action on two grounds: (a) as a result of the ECJ ruling, the content of the challenged EU norm might be consistent with the Constitution; or (b) the ECJ ruled that EU norm to be inconsistent with EU primary legislation. In either case, the CT need not decide further. However were it to prove impossible to avoid Constitution Art. 79(1) review then the CT ruling declaring the non-conformity of provisions of EU secondary law to the Constitution “should have the character of ultima ratio” and was therefore to be carried out only in exceptional instances like the present case. In support of its approach, the CT made reference to the FCC in Solange II316 and Banana Market317 since the CT assumed that the subject of review under Constitution Art. 79(1) would be norms of EU secondary legislation that allegedly infringed constitutional rights and freedoms of the individual, particularly those mentioned in Constitution Chapter II. Without then explicitly referring to either Solange II or Banana Market, the CT nevertheless reiterated the point that the human rights standards applied by the FCC in those cases also applied in this case:318

312 Dec. K 15/97, 29 September 1997: OTK ZU 1997/3–4, Item 37; Dec. K 27/99, 28 March 2000: OTK ZU 2000/2, Item 62; Dec. K 15/99, 13 June 2000: OTK ZU 2000/5, Item 137; Dec. K 35/99, 5 December 2000: OTK ZU 2000/8, Item 295; Dec. K 2/02, 28 January 2003: OTK ZU 2003/1A, Item 4; Dec. K 11/03, 27 May 2003: OTK ZU 2003/5A, Item 43; Dec. K 33/03, 21 April 2004: OTK ZU 2004/4A, Item 31. 313 Dec. SK 45/09, 16 November 2011: OTK ZU 2011/9A, Item 97, at para. III.2.6. 314 Ibid. 315 See at Chapter Three, points D.4. and E.2.e.; and Honeywell, 6 Juli 2010, 2 BvR 2661/06: BVerfGE 126, 286; [2011] 1 CMLR 33, 1067. 316 Wünsche Handelsgesellschaft (‘Solange II’), 22 Oktober 1986, 2 BvR 197/83: BVerfGE 73, 339; [1987] 3 CMLR 225. 317 Banana Market II, 7 Juni 2000, 2 BvL 1/97: BVerfGE 102, 147; (2000) 21 HRLJ 251. 318 Dec. SK 45/09, 16 November 2011: OTK ZU 2011/9A, Item 97, at para. III.2.9.

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chapter five The scope of the powers of an international organisation a member of which is the Republic of Poland should be delineated in such a way so that the protection of human rights could be guaranteed to a comparable extent as in the Polish Constitution. The comparability concerns the catalogue of the rights, on the one hand, and the scope of admissible interference with the rights, on the other. The requirement of appropriate protection of human rights pertains to their general standard, and does not imply the necessity to guarantee identical protection of each of the rights analysed separately.

Then, in a further echo of the scheme and content of those FCC cases, the CT noted the great significance attached to human rights in the EU through ECJ caselaw, treaty norms (e.g., Art. 6 TEU), the CFR, and the future accession of the EU to the ECHR; it concluded319 that the CFR, the ECHR and the constitutional traditions common to the Member States “set a high level of protection of fundamental rights (human rights) in the European Union.” In other words, the CT appears to be effectively ruling out a constitutional review of EU secondary legislation on the grounds of human rights infringements, except in the most exceptional circumstances as the FCC had already done in Solange II and Banana Market. Later320 the CT returns to consider these two cases expressly, using the ratio of both by analogy as useful to guiding its own approach to reviewing EU law (and now identifying the true derivation of its formulation made earlier321). Consequently when bringing a constitutional complaint under Constitution Art. 79(1) against an EU Regulation, it would be an essential element322 to show the probability that that Regulation caused a considerable reduction in the standard of protection of rights and freedoms compared with the standard of protection guaranteed by the Constitution—once again, a reiteration of Solange II and Banana Market. What then would happen were the CT ultimately to rule unconstitutional (a provision of) an EU Regulation? In the present case, the CT considered that such European norm would be deprived of any legal effect in Poland and could not be applied by Polish state organs: its ruling would, in effect, suspend the application of that norm but would not thereby determine whether or not it was legally binding as that determination remained solely within ECJ competence. Such a CT ruling would be tantamount323 to a breach of the principle of sincere co-operation set out in Art. 4(3) TEU which could render Poland susceptible to challenge before the ECJ under Arts. 258–260 TFEU. Moreover, the CT continued,324 measures ought to be undertaken forthwith to eliminate the conflict

319 Ibid, at para. III.2.10. 320 Ibid., at para. III.8.2. 321 Ibid., at para. III.2.9. 322 Ibid., at para. III.8.5. 323 Ibid., at para. III.2.7. 324 Based on its ruling in the 2003 Accession Treaty case, Dec. K 18/04, 11 May 2005: OTK ZU 2005/5A, Item 49.

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between the national constitutional legal order and the EU secondary legislation. A combination of the Polish constitutional principle of a favourable predisposition of Poland towards European integration and the principle of Union loyalty under Art. 4(3) TEU would require that the effects of the CT’s ruling be deferred in time pursuant to Constitution Art. 190(3) as it had in Dec. P 1/05325 on the European Arrest Warrant. Decision SK 45/09 is certainly a clear example of the continuing impact of FCC decisions on the evolution of the CT’s approach to EU law. Both Solange II and Banana Market were used, expressly and impliedly, in the reasoning of the CT together with Honeywell. Nevertheless, while the CT actually measured a provision of an EU Regulation against Articles of the Polish Constitution (and found it to be constitutional)—which the FCC had not done so, even in Solange I326—it went to great lengths to emphasise the exceptional and subsidiary nature of such review through an Art. 79(1) constitutional complaint procedure. Further indications of a Euro-friendly attitude pepper Dec. SK 45/09 with the CT evidently trying to balance its loyalty to the European integration process with its demands of loyalty to the Constitution that CT members have sworn to uphold. Nevertheless, even EU Regulations—passed within the boundaries of the conferred powers provided for under the Treaties—are binding on Poland but only up to a point. In the end, it will be the actual practice of the CT which will determine the extent to which this type of claim remains exceptional and subsidiary. 3. Review of National Transposing Law Examination of domestic legal measures transforming European law into the internal system (generally speaking, statutes and decrees ‘internalising’ Directives) remained an open question in Poland until 2005. There was clear support for the argument that the CT retained a jurisdiction in this case. As previously mentioned, the express wording of Art. 188(1) allows the CT to judge the constitutionality of a domestic statute (Art. 188(3) for government and ministerial decrees). A Direc tive requires adoption into national law. Although the CT might not consider reviewing the Directive itself (although this may now be considered a moot point following on from the previous analysis in the EU Regulation case327), it could find itself in the situation where—through the EU-conform implementation of a Directive in a national legal rule—an infringement exists of the Constitution. In such case, the relevant legal act of domestic state power would be the object of review.328 325 Dec. P 1/05, 27 April 2005: OTK ZU 2005/4A, Item 42; [2006] 1 CMLR 965. 326 Wünsche Handelsgesellschaft (‘Solange II’), 22 Oktober 1986, 2 BvR 197/83: BVerfGE 73, 339; [1987] 3 CMLR 225. 327 See above at Chapter Five, point E.2.d. for the CT’s arguments in respect of Regulations. 328 Jankowska-Gilberg (2003), at 436–437.

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This is indeed what the CT held in its judgment in Dec. P 1/05 on the European Arrest Warrant (‘EAW’).329 This case concerned an application for a constitutional review from the Regional Court of Gdańsk as to whether art. 607t of the Code of Criminal Procedure, implementing Council Framework Decision 2002/584/JHA on the EAW330 was consistent with Constitution Art. 55(1) that prohibited extradition of Polish citizens. The CT ultimately ruled the provision of the Code to be unconstitutional since the absolute right contained in Constitution Art. 55 was infringed by the Code of Criminal Procedure, art. 607t because it deprived Polish citizens of the very essence of the right under Art. 55. By infringing the essence of a fundamental constitutional right, the legislator had breached Constitution Art. 31(3) which provides that, while any limitation upon the exercise of constitutional freedoms and rights may by imposed only by statute and only when necessary in a democratic state (e.g., for the protection of its security or public order), such limitation may not violate the essence of freedoms and rights. In the part of its ruling relevant for present purposes,331 the CT noted that the Framework Decision corresponded conceptually and in terms of structure to Directives in the First Pillar. According to then Art. 34(2)(b) TEU (now repealed through the 2009 Lisbon Treaty), Framework Decisions were adopted in order to increase the convergence of legislative and executive provisions, binding the Member States with respect to the result to be achieved but leaving them the discretion as to the choice and forms of instruments. In contrast to Directives, the terms of former Art. 34(2)(b) TEU expressly prohibited Framework Decisions from generating any direct effect even if their provisions were precise and unconditional. In addition, Framework Decisions did not grant any rights nor did they impose obligations upon individuals in Member States. Lastly their enactment into national law was governed by principles analogous to the principles of transposition of Directives.332 The CT subsequently turned to address the issue of its jurisdiction in the present case:333 The obligation to implement the Framework Decisions is a constitutional requirement stemming from Article 9 of the Constitution, but its enactment does not assure automatically and in every case the material conformity of the provisions of derivative EU law and of legislative acts implementing them to the national law with the 329 Dec. P 1/05, 27 April 2005: OTK ZU 2005/4A, Item 42; [2006] 1 CMLR 965. 330 2002/584/JHA: Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States: OJ 2002 L190/1. 331 Dec. P 1/05, 27 April 2005: OTK ZU 2005/4A, Item 42, at para. III.2.1; [2006] 1 CMLR 965, at 978. 332 In respect of the Polish practice, the CT referred to: Zapewnienie skuteczności prawu Unii Europejskiej w prawie polskim. Wytyczne polityki legislacyjnej i techniki prawodawczej [Assurance of effectiveness of EU law in Polish law. Guidelines for legislative policy and lawmaking technique], UKIE [Office of the Committee for European Integration], Warszawa (2003), at 32–33. See generally on this point, B. Kurcz & A. Łazowski, “Two Sides of the Same Coin? Framework Decisions and Directives Compared” (2006) 25 YBEL 177–204. 333 Dec. P 1/05, 27 April 2005: OTK ZU 2005/4A, Item 42, at para. III.2.4; [2006] 1 CMLR 965, at 980.

the polish constitutional tribunal261 norms of the Constitution. The basic function of the Constitutional Tribunal in the political system consists of reviewing the conformity of normative acts with the Constitution, and the same task applies also to situations, where the claim of unconstitutionality concerns that part of the scope regulated by a legislative act, which serves the purposes of implementation of EU law.

The ruling evidently indicates that Polish legislation must remain in conformity with the domestic Constitution and that the requirement to transpose European obligations cannot derogate from expressly formulated constitutional provisions.334 Consequently, the CT concluded that since the national law implementing the Framework Decision—by allowing Polish citizens to be prosecuted before foreign criminal courts—would have prejudiced the fundamental right of such citizens under Constitution Art. 55 to be free from extradition, the CT had no choice but to rule it unconstitutional. Though not said explicitly, Bem argued that the CT had thereby underlined the precedence of the 1997 Constitution over EU law.335 Nevertheless, the CT could be regarded as more Euro-friendly in European Arrest Warrant than its German counterpart was later in its own decision on the EAW.336 The CT decided—on the basis of Constitution Art. 190(3)337—that its ruling on the unconstitutionality of the national law implementing the EAW would only take effect after 18 months. Hofmański argued338 however that, in this respect, the CT incorrectly applied Constitution Art. 190(3) on the matter of constitutionality. On the basis of this paragraph, the CT is allowed to specify the date of loss of binding force of a normative act but it cannot—what in fact it was trying to do— suspend a constitutional guarantee (in Constitution Art. 55).339 So for 18 months 334 L. Garlicki, “Chronique 2005: Pologne” (2005) XXI AIJC 655, at 664. 335 K. Bem, “The European Arrest Warrant and the Polish Constitutional Court Decision of 27 April 2005,” in E. Guild (ed.), Constitutional Challenges to the European Arrest Warrant, Wolf Legal Publishers, Nijmegen (2006), chap. 6, 125, at 128. 336 European Arrest Warrant, 18 Juli 2005, 2 BvR 2236/04: BVerfGE 113, 273; [2006] 1 CMLR 378. See above, Chapter Three, point E.3. 337 When read with 1997 Act, s. 71(2). Constitution Art. 190(3) reads in part: “A judgment of the CT shall take effect from the day of its publication, however, the CT may specify another date for the end of the binding force of a normative act. Such time period may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act.” 338 P. Hofmański, “Przekazanie obywatela polskiego innemu państwu członkowskiemu Unii Europejskiej na podstawie europejskiego nakazu aresztowania – glosa do postanowienia Sądu Najwyższego z 13.12.2005 r. (III KK 318/05) [Surrendering of Polish citizens to another Member State of the European Union on the basis of the European Arrest Warrant – gloss to a decision of the Supreme Court of 13 December 2005 (III KK 318/05)]” 2006/7 Europejski Przegląd Sądowy 44, at 45. 339 Compare Constitution Art. 233(1): “The statute specifying the scope of limitation of the freedoms and rights of persons and citizens in times of martial law and states of emergency shall not limit the freedoms and rights specified in Article 30 (the dignity of the person), Article 34 and Article 36 (citizenship), Article 38 (protection of life), Article 39, Article 40 and Article 41(4) (humane treatment), Article 42 (ascription of criminal responsibility), Article 45 (access to a court), Article 47 (personal rights), Article 53 (conscience and religion), Article 63 (petitions), as well as Article 48 and Article 72 (family and children).”

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from the publication of European Arrest Warrant, the CT’s intention was that Polish citizens should be surrendered on the basis of the EAW to other EU Member States, and after this time limit they should not.340 However,341 Hofmański proposed a number of possible solutions to this situation, the last of which—as suggested by the CT—was followed, viz., in the interim period, the EAW would remain provisionally in force and would therefore allow the Polish parliament time to redraft Constitution Art. 55 to allow Poland to comply with the Framework Decision, as required by Constitution Art. 9.342 This was achieved within the time limits when the Polish parliament voted343 for an amended version of Constitution Art. 55344 which now permits the execution of EAWs subject to two conditions (that do not seem to comply with the Framework Decision): viz., (i) the crime has been committed abroad; and (ii) it is recognised by as well as capable of being prosecuted under Polish law. Unlike Bem, Kowalik-Bańczyk argued345 that the CT in European Arrest Warrant “accepted that the Constitution itself was no longer an absolute framework for control—if it hinders the correct implementation of EU law, it should be changed.” In support of her argument, she referred to the fact that the CT delayed the entry into effect of its decision. Łazowski346 was of a similar persuasion, highlighting 340 The strength of Hofmański’s argument in this aspect has been completely undermined by the CT in EU Regulation (Dec. SK 45/09, 16 November 2011: OTK ZU 2011/9A, Item 97, at para. III.2.7) in which it emphasised this delay in implementing its ruling as a constitutional principle based on Constitution Art. 190(3). 341 Hofmański (2006), at 45–46. 342 Constitution Art. 9 (which, according to the CT in its previous case-law, is equally applicable to EC/EU law) states: “The Republic of Poland shall respect international law binding upon it.” 343 In May 2006, the President of the Republic presented to the parliament a bill to amend Constitution Art. 55. The wording was considered by the governing coalition as being too broad. Consequently, the government’s own proposal was voted through by the Sejm on 8 September 2006 and by the Senate on 14 September 2006. See Act of 8 September 2006 on the Amendment of the Polish Constitution: Dz. U. 2006, No. 200, Item 1471. 344 Constitution Art. 55 now reads, in part: (1) The extradition of a Polish citizen shall be prohibited, except in cases specified in paras. 2 and 3. (2) Extradition of a Polish citizen may be granted upon a request made by a foreign state or an international judicial body if such a possibility stems from an international treaty ratified by Poland or a statute implementing a legal instrument enacted by an international organisation of which the Republic of Poland is a member, provided that the act covered by a request for extradition: 1) was committed outside the territory of the Republic of Poland; and 2) constituted an offence under the law in force in the Republic of Poland or would have constituted an offence under the law in force in the Republic of Poland if it had been committed within the territory of the Republic of Poland, both at the time of its commitment and at the time of the making of the request. 345 K. Kowalik-Bańczyk, “Should We Polish It Up? The Polish Constitutional Tribunal and the Idea of Supremacy of EU Law” (2005) 6 Ger LJ 1355, at 1361. 346 A. Łazowski, “The Polish Constitution, the European Constitutional Treaty and the Principle of Supremacy,” in A. Albi & J. Ziller (eds.), The European Constitution and National Constitutions: Ratification and Beyond, Kluwer, The Hague (2007), 171, at 178.

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the CT’s encouragement to revise the Constitution in an inter-institutional dialogue with the Polish parliament as exhibiting a supportive attitude towards the EU. Grzelak347 was clear that the CT maintains the jurisdiction to control the constitutionality of national rules transposing EU law into the domestic system but agreed with Łazowski348 that the CT’s judgment was certainly not anti-European nor did it play down the importance of EU law. Quite the contrary, since the CT did not challenge the essence and need for the functioning of the EAW, it thereby provided the maximum amount of time to apply the provision in order to allow the legislature to amend the Constitution. Banaszkiewicz349 also found the CT’s behaviour in this respect, which he described as “the Judgment of Solomon,” was dictated by its need to ensure fulfilment of Poland’s EU obligations because the constitutional order, under Constitution Art. 9, is to observe international law binding on Poland. Implicitly, the CT found that such loyalty to significant obligations required temporary—within the 18-month time limit defined by Constitution Art. 190(3)—‘sacrifice’ of the Polish citizen’s right to be tried in their own country. Yet, Banaszkiewicz350 was extremely doubtful that this would amount to a precedent for “Judgments of Solomon” in the future. Nevertheless, the Polish Supreme Court ruled in December 2005351 that the delay in the loss of binding force of the Code of Criminal Procedure, art. 607t(1) by the CT meant that—during the 18-month period of time—Polish courts could not refuse to execute EAWs issued by another EU Member State in relation to Polish citizens. In Dec. SK 26/08,352 the CT was called upon again to review provisions of the Criminal Code—transposing the EAW Framework Decision—with respect to Constitution Arts. 45(1) and 42(2), read with Art. 55(4), which cover the right to a fair trial and defence together with the prohibition on extradition where its enforcement might infringe fundamental rights. The petitioner claimed, inter alia, that the grounds for non-enforcement of an EAW were not clear and complete enough, especially with respect to the possibility of surrendering a prosecuted person without prior examination of the probable nature of the offence. The CT limited its review to art. 607p(1)(5) of the Criminal Code which provided that EAWs were not to be enforced if such enforcement could violate fundamental rights. This Article had introduced a ground for non-execution that was

347 Grzelak (2005), at 33. 348 A. Łazowski, “Constitutional Tribunal on the Surrender of Polish Citizens under the European Arrest Warrant. Decision of 27 April 2005” (2005) 1 EuConst 601, at 613. 349 B. Banaszkiewicz, “Prawo polskie a prawo Unii Europejskiej w orzecznictwie Trybunału Konstytucyjnego [Polish law and EU law in the case-law of the Constitutional Tribunal]” 2005/3 Europejski Przegląd Sądowy 49, at 54. 350 Ibid., at 54. 351 Supreme Court, 13 December 2005, III KK 318/05: OSNKW 2006/4, Item 37. 352 Dec. SK 26/08, 5 October 2010, OTK ZU 2010/8A, Item 73.

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not expressly provided for the EAW Framework Decision but which could be deduced from points 12 and 13 in the Preamble. It also found that the Polish provision included situations where the executing judicial authority found that the offence for which the person in question was being prosecuted had not actually been committed, as well as situations where the description of the offence in the EAW did not enable the executing judicial authority to determine the nature and legal classification of the offence. In both situations, art. 607p(1)(5) provided a legal basis for the executing judicial authority to refuse enforcement of the EAW issued for the purpose of criminal proceedings and was therefore consistent with the Constitution. While generally, then, the CT has appeared to reluctant to utilise its powers in the matter of constitutional review of domestic EU-harmonising measures, nevertheless (as with other constitutional courts) it has expressly refused to surrender its jurisdiction to examine indirectly the constitutionality of European secondary legislation and has actually utilised that competence. In this way, it has confirmed the general approach in this respect displayed by the FCC both in M. GmbH353 and in its own case concerning the EAW.354 4. Refusals to Refer At this present time, there appears to be a paucity of reasoning in any CT ruling which indicates an explicit refusal to refer a question to the ECJ. Nevertheless, following on from Dec. SK 45/09,355 it is highly likely that—in common with the central argument of this work—the CT would tend to follow the approach of its German counterpart and find ways to exclude the need for making a reference to the ECJ. Thus in Dec. SK 45/09, on the constitutional review of a provision of an EU Regulation, the CT cited to the FCC in Honeywell356 as supporting the argument that it could refer a question to the ECJ where necessary. However the CT decided that there was no need for it to make an Art. 267 TFEU reference in that case to the ECJ within the meaning of the Foto-Frost357 doctrine on the grounds that the challenged Regulation conformed to EU primary law. F. Concluding Observations In the light of the CT’s reasoning in its post-accession case-law, it might be possible to reflect that the model of the CT is not an FCC-lite one but rather a 353 M. GmbH v. Bundesregierung, 12 Mai 1989, 2 BvQ 3/89: (1989) 24 EuR 270; [1990] 1 CMLR 570. 354 European Arrest Warrant, 18 Juli 2005, 2 BvR 2236/04: BVerfGE 113, 273; [2006] 1 CMLR 378. 355 Dec. SK 45/09, 16 November 2011: OTK ZU 2011/9A, Item 97. 356 Honeywell, 6 Juli 2010, 2 BvR 2661/06: BVerfGE 126, 286; [2011] 1 CMLR 33, 1067. 357 Case 314/85 Foto-Frost v. Hauptzollamt Lübeck-Ost [1987] ECR 4199.

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considered reflection of the impact of EU law, grafted onto the stem of modern Polish constitutional law and practice. The decisions of the CT in the 2003 Accession Treaty case and the European Arrest Warrant case may have arguably taken the German constitutional jurisprudence in the Solange and Maastricht judgments to their logical conclusion. In fact, the formulation of a nuanced approach to national constitutional supremacy in the face of European law was even more unlikely in Poland given the express wording of the supremacy clause in Constitution Art. 8 as well as Arts. 90 and 91. The warning shot on this issue, fired by the CT (as with the FCC in Maastricht—and later Lisbon), did not target the Accession Treaty itself but rather future changes (e.g., the Lisbon Treaty). The Accession Treaty case evidently left intact the CT’s jurisdiction to review the constitutionality of EU treaties and secondary law. The issue of reviewing harmonised secondary legislation—even though only referred in European Arrest Warrant to Framework Decisions in the former Third Pillar—has ample opportunity of being repeated for Directives and Regulations. Such view has been confirmed by the CT in EU Regulation in which—this time— the CT went further than the FCC in Solange I and actually reviewed the provision of a Regulation on the pretext of such instrument being a ‘normative act’ under the Polish Constitution and thus subject to review. Although a warning shot was thus fired across the bows of the ECJ, nevertheless the CT found no unconstitutionality and further went to great lengths to emphasise the exceptional character of such review. The matter of Directives, however, falls more deeply within the possible review jurisdiction of the CT, under the guise of national harmonising legislation. Thus, while direct review and annulment of Directives are substantially excluded (according to European law and ECJ case-law), their indirect review and effective annulment in national law definitely remain an option. And yet the CT has generally not pursued a jurisprudential policy vis-à-vis EU law that heightens the tension between the European and Polish (constitutional) legal orders. Indeed the CT actually appears to be at pains to ensure a nuanced approach to constitutional difficulties concerning EU law and has therefore been a much more faithful proponent of the relationship of co-operation advocated by the FCC in Maastricht. As evidence of this approach, it will be recalled that the CT did not strike down any provision of the Accession or related EU treaties in its 2003 ruling. Moreover, in relation to the unconstitutionality of the national law implementing the EAW, it suspended the entry into force of its decision in order to allow the national legislator the full 18 months—as permitted under Polish constitutional law— to prepare and pass a provision to render constitutional surrender according to the EAW: in directing the focus onto the legislature, the CT thus exercised the only legitimate option open to it, i.e., ‘dialoguing with parliament’ to amend the Constitution as opposed to the other impracticable or politically impossible

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options, viz., either, on the one hand, seeking a renegotiation, amendment or, at the very least, a derogation from the effect of the EAW or, on the other hand, complete withdrawal from the Union. These three options, as will be recalled, were posited by the CT in the 2003 Accession Treaty case as the then only means by which Poland could maintain the legal integrity of its Constitution in the face of overbearing European integration. Such dialoguing with parliament was reaffirmed in EU Regulation when the CT raised to the level of a constitutionally-guaranteed principle the Constitution Art. 190(3) delay in implementing a CT decision, so that parliament had more time to draft a replacement law (and thus avoid a legal lacuna) and also reflecting the overall Euro-friendly approach of the CT. An innate sensitivity of the CT on this issue (and sadly lacking with the German Court on the same matter in its own EAW case) was reiterated by Safjan—the then President of the CT and now the Polish judge at the ECJ358—when speaking extrajudicially.359 Discussing the Accession Treaty case, he indicated that the CT wanted to show that it was possible to reconcile the positions consisting of the recognition of the primacy of the Constitution and the principle of the primacy of EU law. Undoubtedly, the CT as guardian of the Constitution had to respect Art. 8(1) according to which the Constitution is the supreme law of the Republic of Poland. In that case, he said, the CT could not recognise that any EU law rule enjoyed supremacy over the Constitution. Nevertheless he proffered a solution:360 We have been pointing out that there are arguments which speak in favour of fulfilment of Article 8 in accordance with [EU] law yet, at the same time, we were showing the value of establishing a uniform legal system – legal space – in the European Union. We wanted to distinguish these two values and reconcile them on the basis of our system in the most possible rational way. We are saying this: the Constitution takes the precedence but simultaneously – taking into consideration Polish membership in the EU – we have to reckon with the fact that the Constitution might have to be changed in case of conflict between [an EU] and domestic norm. We recognise that the domestic legislator will have to decide eventually whether to amend the Constitution or – as a last resort – to withdraw from the EU, whereas by agreeing to Polish membership in the EU he would have to accept the amendment of the Constitution in a case of collision. This is a clear indication given by the Constitutional Tribunal.

He subsequently acknowledged, from the CT’s point of view, that it was very important to aim at the elimination of conflicts between European and domestic law in the first place and thus to do everything possible to interpret the domestic 358 On 13 January 2009, the EU Council of Ministers appointed Prof. Safjan as a judge at the ECJ. Available at: . Accessed 21 March 2009. 359 A. Wróbel, “Prymat prawa wspólnotowego nad konstytucją? [The primacy of Community law over the Constitution? – Interview with Marek Safjan]” 2006/4 Europejski Przegląd Sądowy 4, at 4. 360 Ibid., at 4.

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system in the kind of way which would enable realisation of a uniform application of a European norm in the Polish legal system.361 In Safjan’s opinion,362 the CT established impassable limits in its interpretation of national law as, e.g., in the EAW case where an unequivocal provision of the Constitution (forbidding extradition of Polish citizens) could not be infringed by acknowledging supremacy of EU law. This indicated the CT’s way of thinking and its commitment to the maintenance of Polish constitutional sovereignty thereby leaving it to the Polish parliament to decide whether to amend the Constitution or to make some other decision. Moreover, asked whether the CT might consider making an Art. 267 TFEU (ex-Art. 234 EC) reference in a case, Safjan363 would not exclude such possibility in advance when, e.g., the meaning and sense of a European norm had an influence on the meaning of a national provision implementing this norm and it would therefore be a precondition for the CT’s reasoning on constitutional grounds. In this situation, the relationship of co-operation between the CT364 and the ECJ seemed to augur well for the future, distanced somewhat at that time from the stark realities elucidated by the FCC in Lisbon and the earlier EAW decision, perhaps presaging a more lauded Central European approach that still remains to entice the HCC beyond the desultory crumbs it has so far offered in such transjudicial discourse. However, the FCC in Honeywell, used by the CT in EU Regulation, has put the matter of the relationship of co-operation between the ECJ and the FCC and CT back onto an even keel. While not admitting that it is a perfect pupil in EU law, the CT has arrived at its position much more timely and much less controversially than the FCC. The CT’s relative openness to European integration was underlined in its Lisbon ruling and in marked contrast to the FCC’s own decision on that Treaty. Having clearly accepted the FCC’s notions of ‘conferral of competences’ and ‘constitutional identity,’ together with its Maastricht canon of the Member States remaining ‘masters of the Treaties’ and the EU itself being a ‘Staatenverbund,’ the CT nevertheless distanced itself from the stark realities (or eventualities) of the German position by emphasising that its protection of Polish constitutional identity involved an important balancing between the principle of the protection of national sovereignty in European integration and the principle of a favourable predisposition towards European integration and co-operation between States. 361 Ibid., at 4. 362 Ibid., at 5. 363 Ibid., at 8–9. 364 And similarly the practice of the Czech Constitutional Court in respect of the Lisbon Treaty: (1) Czech Const. Ct. Decision of 26 November 2008: Case No. Pl. ÚS 19/08; and (2) Czech Const. Ct. Decision of 3 November 2009: Case No. Pl. ÚS 29/09. However, the Court’s recent rejection of the priority of ECJ rulings interpreting EU law has thrown this approach into doubt: Czech Const. Ct. Decision of 31 January 2012: Case No. Pl. ÚS 5/12.

CHAPTER SIX

CONCLUSION A. Overall Context of the Conclusion 1. Introduction The focus of the present research has been the constitutional judiciary in Central Europe and its response to the application of European law. An examination has already been made in Chapter One on the development and synthesis of the constitutionalisation of the basic Treaties of the EC/EU as they have been transformed by the ECJ, together with—in Chapter Two—the selection of the relevant constitutional court model of Germany whose response to EU integration could guide those of Central Europe. The German model was then set out in Chapter Three. In the succeeding chapters, Chapters Four and Five, the focus shifted to two Central European States in which an in-depth analysis was presented of domestic constitutional understanding of a State’s essential core of sovereignty, with reference to the role of EC/EU law in the domestic legal order, and utilising the model already outlined from Germany. This Conclusion must therefore seek to provide some context for the different ways in which the German model in Central Europe forms a natural part of the continuing interjudicial communication between the ECJ and national constitutional courts. Such Conclusion, in accepting Hungarian and Polish constitutional judicial decision-making as an integral part of the evolving co-operative relationship, must also furnish some contribution to develop this relationship further. In making this contribution, it is intended to address in some small part the deficiencies in legitimacy and citizen participation which will continue to subsist, even with the Lisbon Treaty now in force. 2. Role of Constitutional Courts in the Face of Deepening European Integration a. European Constitutional Justices as ‘Veto-Players’ Over their time of existence and practice, the constitutional tribunals across Europe have developed into important ‘veto-players’—actors whose agreement is required for a policy decision1—in the politics of their own States.2 With their 1 G. Tsebelis, “Decision Making in Political Systems: Veto Players in Presidentialism, Parliamentarism, Multicameralism and Multipartyism (1995) 25 Brit. J. Pol. Sci. 289, at 293. 2 B. Bugaric, “Courts as Policy-Makers: Lessons from Transition” (2001) 42 Harvard Intl. LJ 1, at 1.

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benches peopled mostly by legal academics, judgments handed down by constitutional justices have shaped national constitutional culture as much as new laws and the implementation of administrative decisions,3 whether in the period following the Second World War or after the end of the Cold War. Yet the influence over societies of such a small group of judges highlights the counter-majoritarian problem,4 the problem of the separation of powers where, what at first seems to be a small, unrepresentative and unaccountable minority—happening to hold judicial office—can overrule the expression of the legislative will, representing (however imperfectly) a much larger group of the population.5 Dworkin argues in favour of judicial review of legislation by presenting the alternatives as allowing the legislature to do everything the majority wants or empowering courts to nullify legislative decisions.6 In his opinion:7 Legislators who have been elected, and must be re-elected, by a political majority are more likely to take that majority’s side in any serious argument about the rights of a minority against it; if they oppose the majority’s wishes too firmly, it will replace them with those who do not. For that reason legislators seem less likely to reach sound decisions about minority rights than officials who are less vulnerable in that way.

The ‘less vulnerable’ officials that he has in mind are judges: by virtue of being independent and appointed, they are8 “insulated from the majority’s rebuke.” A constitutional court is empowered to invalidate legislative choices where it decides those legislative choices are unconstitutional. Prevailing theories of legitimacy stress the legitimating role of elections by universal adult suffrage and confer particular legitimacy on parliaments to make binding political value choices. Thus it is difficult to see an appointed body like a constitutional court being able to invalidate those value choices.9 Smith has said:10

3 D. Horowitz, “Constitutional Courts: Opportunities and Pitfalls.” Available at: . Accessed 5 January 2009. 4 Coined by Bickel in 1962: A. Bickel, The Least Dangerous Branch: the Supreme Court at the Bar of Politics, Bobbs-Merrill, Indianapolis (IN) (1962). However, while this is the root problem of judicial review in the USA, it is not regarded as a major problem in Germany, for example: D.P. Kommers, “German Constitutionalism: A Prolegomenon” (1991) 40 Emory LJ 837, at 843. 5 I. Hare, “The Constitution and the Justification of Judicial Power,” in J. Beatson & T. Tridimas (eds.), New Directions in European Public Law, Hart Publishing, Oxford (1998), chap. 9, 125, at 128. 6 R. Dworkin, Freedom’s Law, OUP, Oxford and New York (1996), at 364. 7 R. Dworkin, Law’s Empire, Fontana, London (1991), at 375. 8 Ibid., at 375. 9 R. O’Connell, Legal Theory in the Crucible of Constitutional Justice, Ashgate/Dartmouth, Aldershot (2000), at 260. 10 E. Smith, “Give and Take: Cross-fertilisation of Concepts in Constitutional Law,” in Beatson & Tridimas (1998), chap. 8, 101, at 121.

conclusion271 It should be stressed that typical political procedures are best – or at least necessary – for accomplishing an important number of fundamental tasks in society. At the same time, however, typical judicial procedures are the superior ones for other categories of societal decisions. The task of defining major guidelines for society should normally not be conferred upon unelected judges. But judges acting under fundamental legal principles of contradiction, etc., are no doubt often to be preferred for ensuring proper consideration of particular interests presupposedly harmed by legislative enactments.

Constitutions invariably contain vague and abstract provisions, the interpretation of which by designated constitutional tribunals inevitably lead to legislating resolutions11 centred on the constitutional justices’ understanding of the application of principles such as democracy, the rule of law, and human rights to disputes brought before them.12 b. Constitutional Justices as ‘Guardians of the State’ in the Face of EU Integration The main change in the role of the constitutional court in the EU—or perhaps an additional cameo—is as the standard-bearer for the continued existence of the State in the Union and the integration project. Echoing Alter,13 the constitutional courts have—in many instances—perceived European law as a threat to their independence, influence and authority since it disrupts national hierarchies and allows for different legal outcomes in a case. As protectors of the national legal order, constitutional courts are especially sensitive to and concerned about the disruptive influence of European law, with ECJ rulings effectively undermining legal certainty. In the words of Dehousse:14 From the standpoint of a national lawyer, European law is often a source of disruption. It injects into the legal system rules which are alien to its traditions and which may affect its deeper structure, thereby threatening its coherence. It may also be a source of arbitrary distinctions between similar situations…. What appears as integration at the European level is often perceived as disintegration from the perspective of national legal systems.

11 C. Sunstein, “The Legitimacy of Constitutional Courts: Notes on Theory and Practice” EECR, Winter 1997, 61, at 61–63. 12 The ongoing debate on the need for judicial review by constitutional courts should at least be noted here, for which see, e.g., J. Waldron, “The Core of the Case against Judicial Review” (2005– 2006) 115 Yale LJ 1346; R. Fallon, “The Core of an Uneasy Case for Judicial Review” (2007–2008) 121 Harvard L. Rev. 1693; M. Tushnet, “How Different are Waldron’s and Fallon’s Core Cases For and Against Judicial Review?” (2010) 30 OJLS 49. 13 K. Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe, OUP, Oxford (2001), at 47–48. 14 R. Dehousse, The European Court of Justice: the politics of judicial integration, St. Martin’s Press, New York (1998), at 173.

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While the role as ‘guardian of the State’ developed for constitutional tribunals and supreme courts in the original Member States (and some of the later adherents), by the time of the Mediterranean enlargements a fuller understanding of the constitutional impact of EEC law was coming to the fore—hence the provisions of the Spanish Constitution on membership of international organisations and transfers of (the exercise of) sovereignty.15 The constitutional changes in the EU of the 1990s put the accession states (and their constitutional tribunals) on a state of high alert. The wording of the so-called ‘Europe clauses’ were drafted in such a way as to allow national constitutional courts leeway for interpretation and protection of the State’s essential core of sovereignty. Why, they would reason, should they devolve power to the EU when states such as France and Germany had actually amended their constitutions and had had their highest (constitutional) courts declare the acceptable limits on the transfer of the exercise of national powers to the EU? Heightened awareness is intrinsically no bad thing—but Central European constitutional courts are aware of the legal and political costs of the German postMaastricht intransigence (which took a number of years to revise in Germany) and are eager to avoid it. Thus, while bearers of the national flag of sovereignty, the Central European constitutional justices’ approach in deciding cases on EU issues also includes recognition of the democratic legitimation of EU accession through their countries’ popular referenda and the need to take a realistic approach to the requirements of continuing EU integration. It is thus possible to contend that a Central European approach to EU law, more nuanced and almost devoid of a confrontational or ‘non co-operative’ perspective has emerged when compared to the FCC in Maastricht, European Arrest Warrant and Lisbon.16 For evidence, reference might be had to the Polish CT in its own European Arrest Warrant17 where it allowed time for the legislature to act before its decision became final: such ‘window of opportunity’ is now considered as constitutionally required by the CT according to EU Regulation, Dec. SK 45/09.18 Further evidence may be seen from the HCC in Lisbon19 where it emphasised the inherent flexibility of the national constitution and its ability to take on the implications of EU membership, without disturbing domestic constitutional identity. The overall Euro-friendly outlook of the Czech Constitutional Court has, however, recently

15 1978 Spanish Constitution, Arts. 93 and 96(1). Such understanding was also exhibited by the terms of the 1976 Portuguese Constitution, Arts. 7 and 8 and 1975 Greek Constitution, Art. 28. 16 Maastricht, 12 Oktober 1993, 2 BvR 2134 und 2159/92: BVerfGE 89, 155; [1994] 1 CMLR 57; European Arrest Warrant, 18 Juli 2005, 2 BvR 2236/04: BVerfGE 113, 273; [2006] 1 CMLR 378; and Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267; [2010] 3 CMLR 13, 276. 17 Dec. P 1/05, 27 April 2005: OTK ZU 2005/4A, Item 42; [2006] 1 CMLR 965. 18 Dec. SK 45/09, 16 November 2011: OTK ZU 2011/9A, Item 97. 19 Dec. 143/2010 (VII.14) AB: ABH 2010, 698.

conclusion273 been ‘undermined’ by its refusal to follow an interpretation of EU law—already made by the ECJ—as ultra vires.20 Yet this role of ‘guardian of the State,’ it should be said, may be seen as a cameo role. Constitutional courts, despite their straining to prove their characters as veto players, are rarely called upon to be the lead in the continuing drama on the relationship between EU and national law: they are regularly by-passed for promotion to the top spot, leaving other members of the judicial cast(e)—supreme courts, appeal courts, etc.—to fill in the lead.21 c. Constitutional Adjudication: European Integration and Value Choices Constitutional courts cannot avoid law-making but it is arguable as to whether or not this type of judicial legislation can offer satisfactory solutions to complex legal and political problems—through the use of such broad legal principles and concepts—like the approach to further European integration and the gradual erosion of national sovereignty. Constitutional interpretation and adjudication involve very important value choices,22 including considerations of policy and social and political and economic beliefs.23 As has been noted:24 “decisions on constitutionality often involve situations of political importance and thus take on the intuitive character of political decisions.” Constitutional courts display their awareness of policy considerations by their own evaluation of the desirability or undesirability of social, economic and political consequences likely to flow from legislation the constitutionality of which is being challenged.25 In these circumstances, however, constitutional justices have a duty to identify and articulate the policy factors that influence them in particular cases.26 Consequently, the express and full articulation of the policy premises

20 Czech Constitutional Court, Decision of 31 January 2012: Case No. Pl. ÚS 5/12. See R. Zbíral, “Czech Constitutional Court, judgment of 31 January 2012, Pl. ÚS 5/12: A Legal revolution or negligible episode? Court of Justice decision proclaimed ultra vires” (2012) 49 CML Rev. 1475. 21 R. Uitz, “EU Law and the Hungarian Constitutional Court: Lessons from the First Postaccession Encounter,” in W. Sadurski, J. Ziller & K. Zurek (eds.), Après Enlargement: Legal and Political Responses in Central and Eastern Europe, Robert Schuman Centre, Florence (2006), 41, at 56–58. 22 O’Connell (2000), at 260. 23 B. Laskin, “Tests for the Validity of Legislation: What’s the ‘Matter’?” (1965) Toronto LJ 114, at 123. In fact values and preferences necessarily intrude into any decisions of any complexity: G. Evans, Politics of Justice, Victorian Fabian Society, Melbourne (1981), at 11. See also G. Leibholz, Politics and the Law, A.W. Sijthoff, Leyden (1965), at 276: “It pertains to the duties of the constitutional court also to draw into the sphere of its considerations the political consequences of its decisions, in so far as such considerations can be reconciled with an interpretation of the clauses of the constitution.” 24 P. Tripathi, “Foreign Precedents and Constitutional Law” (1957) 57 Colum. L Rev. 319, at 346. 25 C. Antieau, Adjudicating Constitutional Issues, Oceana Publications, London, Rome and New York (1985), at 100. 26 B. Laskin, “The Role and Function of Final Appellate Courts: the Supreme Court of Canada” (1975) 53 Can. Bar. Rev. 469, at 480; P. Weiler, “The Supreme Court and the Law of Canadian Federalism” (1973) 23 Toronto LJ 307, at 308.

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of a decision render it more intelligible to the public, thereby legitimising it, and allows for comment and criticism of the decision.27 As regards the present study on constitutional courts’ responses to the impulses of European integration, it is conceivably arguable that law professors, subsequently elected as constitutional judges, might be more able to confront the issues of national constitutional law and the demands of European integration (together with the political, economic and socio-legal ramifications of their rulings) in more measured approaches—as Rawls propounds28—as ‘exemplary deliberative institutions.’29 Admittedly, such observation is reliant on the quality of those sitting on the bench and it is not unknown for constitutional courts to experience varying quality levels on the bench as a whole, especially where the pool of suitably expert candidates is relatively small, or a large proportion of judges retire within a relatively short period effectively depriving the court of its collective or institutional memory. Moreover, unlike in the United States, evidence of the internal deliberations of the constitutional courts under consideration is unavailable to researchers since such information is made secret according to the law. What remains for the researcher of the three constitutional courts in this study is the possibility of examining—where made—separate concurring or dissenting opinions to collegial decisions as well as, through the reasoning of their decisions, the level of reception of European integration into the deliberations and decision-making of constitutional court judges. d. Judicial Deliberation and Decision-Making vis-à-vis European Integration In giving their reasons, constitutional judges evidently intend to ensure the outward ‘neutrality’ of their decisions and seek to maintain the public perception of law being an apolitical instrument, thereby ensuring a general acceptance of their ruling.30 This duty to the public is extensively scrutinised beyond the court when issues impinging on personal matters concerning the populace are at stake— abortion, same-sex partnerships/marriages, religion/faith, employment rights— but the interest among the public has a tendency to wane when the issues are no longer personal or immediate for them. Where a constitutional court provides a well-reasoned exposition of the domestic constitutional order and its relationship with the EU, such judgment may lead to a flood of articles in learned journals but

27 Antieau (1985), at 112. 28 J. Rawls, Political Liberalism, Columbia University Press, New York (1993), at 231–236. 29 J. Ferejohn & P. Pasquino, “Constitutional Courts as Deliberative Institutions,” paper presented at “Conference on Constitutional Courts,” Institute for Global Legal Studies, School of Law, Washington University in St. Louis, 1–3 November 2001. 30 A. Stone Sweet, Governing with Judges: Constitutional Politics in Europe, OUP, Oxford (2000), at 141–144.

conclusion275 would hardly become the subject of heated discussions among the general public. The general disinterest of EU citizens in the continued existence of their (for many) centuries-old nation states weighed against an increasingly common future has perhaps left a lacuna in the democratic legitimation of the integrative processes which the constitutional justices have attempted to plug. Constitutional courts, in order to guarantee a degree of national constitutional accountability, have sought to provide deliberated and reasoned judgments in the face of the seemingly inexorable progress towards an ever closer Union.31 This does not result in a permanent block on all progress to such a closer Union but rather (admittedly, somewhat naïvely on the current author’s part) in the reformulation of the context in which constitutional justices render their decisions on the further impulses of integration and provide their own input in respect of the EU as another level of contribution to the debate in this contested polity. Stone Sweet has examined the contours of this process in the French, German, Italian and Spanish legal systems.32 He does not mince his words, though, when he states:33 “It is crucial to stress, however, that the evolution of the supremacy doctrine has steadily upgraded the capacity of both the ECJ and the national courts to intervene in policy processes, to shape political outcomes, and thus to provoke judicialization.” In her research into this area, Alter describes this process accordingly:34 Supreme courts clearly want to avoid a direct conflict with the European Court, conflict that could cause significant damage to the process of European integration and set the precedent that it is legal to ignore international courts if their decisions conflict with national law. As mentioned, supreme courts also do not want to become appeals courts for ECJ decisions. They have accepted key elements of ECJ doctrine. But their obiter dictum contains criticisms and refutations of ECJ doctrine and legal reasoning. And they have provided clear signals that they may well challenge future expansions of EC authority.

On the one hand, constitutional courts were forced to accept a significant compromise on the issue of European law supremacy: they clearly understood their inability to halt integration; the necessity to avoid direct conflict; and identified significant pressures on them arising from the actions of lower national courts. According to Alter, in accepting supremacy, they gave up to the ECJ and to 31 See generally, W. Mattli & A.-M. Slaughter, “The Role of National Courts in the Process of European Integration: Accounting for Judicial Preferences and Constraints,” in A.M. Slaughter, A. Stone Sweet & J.H.H. Weiler (eds.), The European Court and National Courts – Doctrine and Jurisprudence: Legal Change in its Social Context, Hart Publishing, Oxford (1998), chap. 9, 253–276. 32 Stone Sweet (2000), at 166–193. 33 Ibid., at 178. 34 Alter (2001), at 58–59.

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lower-level domestic courts as well as national and European political bodies, a decisive influence and control over the national policy-making process.35 On the other hand, Shapiro contends36 that these same constitutional courts have consistently rejected the idea of European law creating a new legal order, as principally expounded by the ECJ and have instead based the domestic authority of European law on their national constitutions thereby—through interpretation— limiting the remit of both the ECJ and the EU. Constitutional courts thus recognised that the legal basis on which European law gained supremacy domestically would affect national sovereignty, and their own ability to influence the legal and political process.37 In this way, constitutional courts have (to a greater or lesser extent) effectively inserted themselves into the policy-making process “not so much to advance the process of European integration as to create limits on the transfer of national powers to the European level.”38 The latest examples including the Polish CT in the 2003 Accession Treaty case,39 Lisbon40 and EU Regulation;41 the HCC in Lisbon;42 and the FCC in Lisbon43 and the recent Euro crisis cases.44 3. Evolution of Central European Judicial approaches to the EU Through including European law and European integration into their deliberations and decision-making, constitutional courts are therefore acting not only as guardians of their respective constitutions but also as arbiters of the reception of European norms into their legal systems. This situation is not so grievous as it seems: the constitutional courts in Hungary and Poland have already displayed—in varying degrees—their receptivity and understanding of the EU in their case-law. The cross-fertilisation or migration of constitutional ideas, mediated especially though not fully exclusively through the German model,45 has allowed these courts to approach the issue of European integration in a measured and deliberative manner, as befits the nature of ‘deliberative institutions.’ Both the HCC and CT have acknowledged the German model but have tempered their decision-making in a clear attempt to distance themselves from being regarded as 35 Ibid., at 58–60. 36 See generally, J. Shapiro, “The European Court of Justice,” in A. Sbragia (ed.), Euro-Politics: Institutions and policymaking in the ‘new’ European Community, Brookings Institution, Washington, D.C. (1992), chap. 4, 123ff. 37 Alter (2001), at 60. 38 Ibid., at 62. 39 Dec. K 18/04, 11 May 2005: OTK ZU 2005/5A, Item 49. 40 Dec. K 32/09, 24 November 2010: OTK ZU 2010/9A, Item 108. 41 Dec. SK 45/09, 16 November 2011: OTK ZU 2011/9A, Item 97. 42 Dec. 143/2010 (VII.14) AB: ABH 2010, 698. 43 Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267; [2010] 3 CMLR 13, 276. 44 See above at Chapter Three, point E.2.f. 45 See G.A. Tóth, Túl a szövegen: Értekezés a Magyar alkotmányról, Osiris, Budapest (2009), at 273–277.

conclusion277 forwarding a more rigorous, combative style in defence of constitutional identity and the use of ultra vires review, as expounded by the FCC, e.g., in Lisbon.46 a. Importance of the German Model on the Essential Core of Sovereignty In this context, the importance of the ‘opening clause’ or ‘Europe clause’ of the Constitution cannot be stressed enough. The relatively calm acquiescence by both constitutional court and State to a constitutional reconfiguration has only recently been properly tested by the HCC in Lisbon whereas the CT has been involved from the outset of EU membership in the very thick of the process47 and continues to be so in its own review of the Lisbon Treaty48 and EU Regulations.49 Nevertheless the HCC and CT have also realised that the former paradigms (derived from previous experience with international law50) are no longer applicable to European law in their national systems unless, as with the FCC, fundamental principles of the Constitution are threatened. Thus, in their viewing the ‘acceptable limits’ to transfers of the exercise of sovereignty, the attitude of the various constitutional courts has formed part of a set of proceedings also involving the executive and legislature. ‘Policing’ these limits has already been expounded as part of its constitutional role in the European integration process by the CT.51 46 Cf. the Czech Constitutional Court in its two Lisbon rulings: (1) Czech Const. Ct. Decision of 26 November 2008: Case No. Pl. ÚS 19/08: P. Bříza, Case Note: The Czech Republic. The Constitutional Court on the Lisbon Treaty: Decision of 26 November 2008” (2009) 5 EuConst 143; and (2) Czech Const. Ct. Decision of 3 November 2009: Case No. Pl. ÚS 29/09: J. Komárek, “The Czech Consti tutional Court’s Second decision on the Lisbon Treaty of 3 November 2009” (2009) 5 EuConst 345. 47 For example, the CT’s rulings on the 2003 Accession Treaty: Dec. K 18/04, 11 May 2005: OTK ZU 2005/5A, Item 49; and on the European Arrest Warrant: Dec. P 1/05, 27 April 2005: OTK ZU 2005/4A, Item 42; [2006] 1 CMLR 965. 48 In Dec. K 32/09, 24 November 2010: OTK ZU 2010/9A, Item 108. 49 Dec. SK 45/09, 16 November 2011: OTK ZU 2011/9A, Item 97. 50 V. Lamm & A. Bragyova, “Systèmes et normes; l’application du droit international dans le système juridique interne” 1993 Journées de la Société de Legislation Comparée 95; W. Czapliński, “Relations between International Law and the Municipal Legal Systems of European Socialist States” (1988) 14 Review of Socialist Law 105; A. Bragyova, “Igazságtétel és nemzetközi jog. Glossza az Alkotmánybíróság határozatához. [Political Justice and International Law. Article concerning the Decision of the Constitutional Court],” 1993/3–4, Vol. XXXV, Állam-és Jogtudomány 213; L. Bodnár, “A nemzetközi jog magyar jogrendszerbeli helyének alkotmányos szabályozásárol [International law as a subject of the Hungarian constitutional system]” (1996) XLVII Alkotmány és jogtudományi. Acta Universitatis Szegediensis de Attila József Nominatae. Acta Juridica et Politica 19; D.V. Trang, “Beyond the Historical Justice Debate: The Incorporation of International Law and the Impact on Constitutional Structures and Rights in Hungary” (1995) 28 Vanderbilt Journal of Transnational Law 1; P. Sonnevend, “Verjährung und völkerrechtliche Verbrechen in der Rechtsprechung des ungarischen Verfassungsgerichts” (1997) 22 ZaöRV 195; L. Leszczyński, “International Standards of Human Rights in Polish Constitutional Regulations and Practice” (1995) 29/3 The International Lawyer 685; Z. Kędzia, “The Place of Human Rights Treaties in the Polish Legal Order” (1991) 2 EJIL 133; K. Działocha, “The Hierarchy of Constitutional Norms and Its Function in the Protection of Basic Rights” (1992) 13/3 HRLJ 100; W. Czapliński, “International Law and Polish Municipal Law: A Case Study,” (1995) 8 Hague Yearbook of International Law/HYIL 37. 51 CT rulings on the 2003 Accession Treaty: Dec. K 18/04, 11 May 2005: OTK ZU 2005/5A, Item 49; and on the European Arrest Warrant: Dec. P 1/05, 27 April 2005: OTK ZU 2005/4A, Item 42; [2006] 1 CMLR 965.

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For its part, the HCC had already developed an understanding of the basic concepts which underpinned the former Constitution, chief among them being the rule of law principle to which the idea of popular sovereignty belonged (although the latter was also linked to the democracy principle) under 1990 Constitution Art. 2(1) and (2). With transfers of the exercise of sovereignty to the EU expressly provided with a constitutional basis in 1990 Constitution Arts. 2/A and 6(4), the role of the HCC continued to gain in importance in monitoring the boundaries of such transfer/limitations through its Lisbon ruling.52 The 2011 Constitution has retained the wording and substance of these erstwhile Articles in new Arts. B and E which could continue to serve as the constitutional basis for controlling further European integration. In this sense, both the Hungarian and Polish constitutional judicial organs are following in the footsteps of their German mentor. In both cases, the HCC and the CT have adopted the notions of ultra vires review and review to protect constitutional identity as detailed by the FCC initially in Maastricht53 and now more comprehensively in Lisbon.54 Yet, so far, neither the HCC nor the CT has exhibited anything less than a co-operative approach to exercising this jurisdiction in favour of the essential core of state sovereignty in the face of ever-deepening European integration. While the HCC has clarified its inherently flexible approach through its Lisbon decision,55 the CT in Lisbon56 was more inclined to stake out a position closer to the FCC in this respect: the Hungarian Constitution is ‘flexible’ in the sense that it can be amended by a two-thirds majority of MPs57 and contains no unalterable core (like the German58) nor a supremacy clause (like the Polish59)—and creation of an essential core of sovereignty is thus left exclusively to Hungarian constitutional judicial interpretation.60 The supremacy of the Constitution clause in Art. 8 of the Polish Constitution provided the justification for the CT’s holding it in Lisbon as the ultimate limit of integration and defining, through it, the contents of

52 Dec. 143/2010 (VII.14) AB: ABH 2010, 698. 53 Maastricht, 12 Oktober 1993, 2 BvR 2134 und 2159/92: BVerfGE 89, 155; [1994] 1 CMLR 57. 54 Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267, at 349–350 and 395–396; [2010] 3 CMLR 13, 276, at 335 and 361. 55 Dec. 143/2010 (VII.14) AB: ABH 2010, 698. 56 Dec. K 32/09, 24 November 2010: OTK ZU 2010/9A, Item 108. 57 2011 Constitution Art. S(2): “The adoption of a new Constitution or any amendment of the present Constitution shall require a two-thirds majority of the votes of all Members of Parliament.” 58 See above at Chapter Three, points B.1. and C. 59 See above at Chapter Five, points B.1. and C. 60 As it has been with Austria and the ‘Bausteine’ (structural principles) of the Constitution, starting with the democratic principle, the principle of the state under the rule of law, and the federal principle, in 1952 with the Voralberg Nationality case: VfGH G 17/52, 16 Dezember 1952, VfSlg 2455. See generally, L. Adamovich & B. Funk, Österreichisches Verfassungsrecht, Springer Verlag, Wien & New York (1982), at 143ff.

conclusion279 its essential core or constitutional identity.61 However, it charted a course more amicable towards European law (than seen in the FCC’s Lisbon ruling) by stressing the mutuality in principles and values between the EU and Poland, and the need to balance sovereignty with the constitutional principles of a favourable predisposition towards European integration,62 a position outlined again in EU Regulation.63 b. Impact of Model on European Law Priority This mentoring by the FCC has also produced clear results in Poland including the use of the doctrine—in the CT’s reasoning—recognising the priority of application as opposed to the priority of validity of European law vis-à-vis the Constitution and the ability to review national law harmonised to a Directive.64 While the latter proposition has also been acknowledged in Hungary,65 the HCC has not yet expressly threatened to exercise review over Regulations as the FCC has done previously in respect of possible infringement of fundamental rights protected under the Constitution:66 the CT, on the contrary, has actually carried out such review in EU Regulation.67 In fact, the HCC has gone to great lengths to avoid exercising its review jurisdiction by actually denying that it has any jurisdiction to review European acts per se. Granted under the pre-2011 Constitution, it regarded itself able to review European Treaties amending the founding Treaties since the former clearly fell within its a priori jurisdiction on international treaties.68 However use of its a posteriori jurisdiction focused on Hungarian legal acts—basically statutes—which promulgated the amending Treaties or which introduced Directives into the national legal system.69 Beyond this, i.e., in respect of Regulations and Directives themselves, it indicated that it had no review jurisdiction and thus ‘deconstitutionalised’ the issue70 thereby affirming the ECJ in Simmenthal71 according to which the ordinary courts are required to disapply national laws in conflict with European law without needing to ask the constitutional court to annul the national rules first. There is no indication, so far, of any change in this practice under the 2011 Constitution. A similar recognition of Simmenthal has been elucidated by the 61 See above at Chapter Five, point E.2.c. 62 See above at Chapter Five, point E.2.c. 63 Dec. SK 45/09, 16 November 2011: OTK ZU 2011/9A, Item 97. 64 See above at Chapter Five, points D.2. and E.3. 65 See above at Chapter Four, point E.3. 66 Internationale Handelsgesellschaft, 29 Mai 1974, 2 BvL 52/71: BVerfGE 37, 271; [1974] 2 CMLR 540; and Wünsche Handelsgesellschaft, 22 Oktober 1986, 2 BvR 197/83: BVerfGE 73, 339; [1987] 3 CMLR 225. See above at Chapter Three, point E.2.a. 67 Dec. SK 45/09, 16 November 2011: OTK ZU 2011/9A, Item 97. 68 See above at Chapter Four, points C.2.b. and E.2.c.-e. 69 See above at Chapter Four, point E.3. 70 See above at Chapter Four, point D.2. 71 Case 106/77 Amministrazione delle Finanze dello Stato v. Simmenthal SpA [1978] ECR 629.

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CT,72 in both States leading implicitly to the decentralisation of constitutional review in respect of EU law enforcement. c. Lawful Judge and ECJ References Nevertheless, one matter of particular utility is the German principle of the right to a lawful judge. Whereas the circumstances exist for its reception or migration into both Central European constitutional systems by judicial fiat—probably reinforced by provisions in the EU Charter of Fundamental Rights on the right to a fair trial, etc.—neither court has shown its willingness to expound the principle, even with respect to protection of European rights and any failure by lower national courts to refer to the ECJ under Art. 267 TFEU (ex-Art. 234 EC).73 Moreover, the issue of making references themselves to the ECJ appears—at least for the moment—to have allowed for the reception by the CT of the FCC’s approach to the matter. The CT has accordingly decided, like the FCC, that it does have the power to refer but has so far refused to exercise it. Such position has continued to endure with the Honeywell,74 in which the FCC required an Art. 267 TFEU reference to the ECJ before determining the ultra vires of an EU legal rule: the CT has followed this case and refined its application in EU Regulation75 when it indicated that it needed to make a reference before it could declare unconstitutional (a provision of) a Regulation. It is clear from the Hungarian perspective, however, that the openness to Art. 267 TFEU references displayed by the Austrian Constitutional Court76 would not be reciprocated and so it will fall to the HCC at some future date either to declare that it has no power to refer or, as quite predictable, follow the German model, i.e., agreeing that the jurisdiction to refer existed but either refusing or avoiding its exercise in practice or even limiting its use to exceptional cases (the terms for fulfilment of which remain stringent). From this brief summary, it is evident that the Polish and Hungarian constitutional justices have started to inculcate into their deliberations and decisionmaking the constitutional implications of deepening European integration in a 72 See above at Chapter Five, point D.2. 73 M. Varju & F. Fazekas, “The reception of European Union law in Hungary: The Constitutional Court and the Hungarian judiciary” (2011) 48 CML Rev. 1945, at 1977–1983; and A. Łazowski, “Half full and half empty glass: The application of EU law in Poland (2004–2010)” (2011) 48 CML Rev. 503, at 538–550. 74 Honeywell, 6 Juli 2010, 2 BvR 2661/06: BVerfGE 126, 286; [2011] 1 CMLR 33, 1067. 75 Dec. SK 45/09, 16 November 2011: OTK ZU 2011/9A, Item 97. 76 (1) Case C-143/99 Adria-Wien Pipeline GmbH v. Finanzlandesdirektion für Kärnten [2001] ECR I-8365, applied by the Austrian Constitutional Court in VfGH B 2251/97, 13 Dezember 2001, VfSlg. 16401; (2) Art. 234 EC (now Art. 267 TFEU) reference made in VfGH KR 1–6/00 and 8/00, 12 Dezember 2000, VfSlg. 16050 and the ECJ ruling in Joined Cases C-465/00 Rechnungshof v. Österreichischer Rundfunk [2003] ECR-I 4989; and (3) Reference made in VfGH W I-14/99, 2 März 2001, VfSlg 16100 and ECJ ruling in Case C-171/01 Wählergruppe “Gemeinsam Zajedno/Birlikte Alternative und Grüne GewerkschafterInnen/UG” v. Bundesminister für Wirtschaft und Arbeit [2003] ECR I-4301.

conclusion281 way strikingly similar in many (but not in all) respects to their German counterpart. Yet that inculcation has proceeded at a quicker and more profound pace in Poland than in Hungary, in which latter tribunal the constitutional justices have been more reticent in their approach to European law. Nevertheless, a noticeable shift in the attitude of the HCC since 2008 has been discerned since which time it has started to display more interest as a bench in the effect of EU law in the domestic constitutional system.77 This change in approach was definitely affirmed in Dec. 143/2010 (VII.14) AB,78 the Lisbon case, where the HCC indicated more precisely the limits to European integration vis-à-vis the constitutional identity of the state. Although argued in much less detail and length than the FCC whose own decision in Lisbon79 it followed in this respect (together with the Czech Constitutional Court in Lisbon80), the HCC has still firmly planted its own markers in this field. Perhaps not surprisingly, the CT in its ruling on Lisbon81 took up the ‘constitutional identity’ issue and used it as a reaffirmation of national constitutional supremacy when read together with Constitution Art. 8. The CT seized on the opportunity to add more explanation and detail to its own understanding of an essential core of sovereignty immune to European integration, going beyond what it had previously decided in the 2003 Accession Treaty case.82 B. The Issue of Constitutional Pluralism for Constitutional Courts: The Current Situation Explained? 1. Brief Recapitulation of the Current Constitutional Stand-Off a. Constitutional Courts v. ECJ The present work has been predicated on the idea that, in the contested polity that is the European Union, it is well nigh impossible to square the circle between the prerogatives of the ECJ in the EU on the one hand and the prerogatives of national constitutional courts within their own jurisdictions on the other.83 However, the conflict is not so stark as one might consider. Admittedly, the FCC’s discussion of the relationship of co-operation is not of itself sufficient to 77 See above at Chapter Four, points D.2.-3. and E.2. 78 Dec. 143/2010 (VII.14) AB: ABH 2010, 698. 79 Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267; [2010] 3 CMLR 13, 276. 80 (1) Czech Const. Ct. Decision of 26 November 2008: Case No. Pl. ÚS 19/08; and (2) Czech Const. Ct. Decision of 3 November 2009: Case No. Pl. ÚS 29/09: J. Komárek, “The Czech Constitutional Court’s Second decision on the Lisbon treaty of 3 November 2009” (2009) 5 EuConst 345. 81 Dec. K 32/09, 24 November 2010: OTK ZU 2010/9A, Item 108. 82 Dec. K 18/04, 11 May 2005: OTK ZU 2005/5A, Item 49. 83 See, e.g., B. de Witte, “Community Law and National Constitutional Values” (1991) 2 LIEI 1, at 4.

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allow for constitutional dialogue84 in the enlarged, post-Lisbon EU any more than it had been in the post-Maastricht EU, although Groussot85 refers to the Maastricht decision as showing that “an indirect dialogue is established between the Court of Justice and the national courts even when no preliminary procedure is made available.” Martinico,86 for his part, analyses a ‘hidden dialogue,’ the unexplored side of the relationship between national constitutional courts and the ECJ that feeds on somewhat unorthodox avenues of judicial communication, i.e., methods of judicial communication other than Art. 267 TFEU references that are not formalised according to the letter of the Treaties. Such dialogue— whether direct or indirect, hidden or revealed—can assist in uncovering divergences within the ‘layered’ constitutional system of the EU, in order to achieve a greater convergence.87 Dashwood & Johnston88 note that while there exists a clear hierarchy of legal orders between the European and national law—with national courts (when applying European law) being ultimately required to defer to the rulings of the ECJ –, this does not necessarily require the courts applying the rules belonging to these two different legal orders should be in a hierarchical relationship. They stated:89 Each ‘side’ has its own particular task in matters concerning Community law: the national court must decide any relevant questions of fact and national law, as well as giving the final ruling on the application of Community law in the national context, while leaving the definitive determination of the meaning of points of Community law for the ECJ. In such cases, neither side can perform its proper function effectively

84 Constitutional courts – together with other national actors, e.g., national and regional parliaments and governments, as well as public opinion – participate in constitutional dialogues in the EU. 85 X. Groussot, “Spirit, Are You There? Reinforced Judicial Dialogue and the Preliminary Ruling Procedure,” Eric Stein Working Paper No. 4/2008, Czech Society for European and Comparative Law, Prague (2008), at 20. Available at: . Accessed 20 March 2009. 86 G. Martinico, “Judging in the Multilevel Legal Order: Exploring the Techniques of ‘Hidden Dialogue’” (2010) 21/2 King’s LJ 257–281. 87 D. Hanf, “Talking with the ‘pouvoir constituant’ in Times of Constitutional Reform: The European Court of Justice on Private Applicants’ Access to Justice” (2003) 10 MJ 265, at 267; and N. Walker, “Flexibility within a Metaconstitutional Frame: Reflections on the Future of Legal Authority in Europe,” in G. de Búrca & J. Scott (eds.), Constitutional Change in the EU: From Uniformity to Flexibility?, Hart Publishing, Oxford and Portland (OR) (2000), chap. 2, 9, at 21 in which the author distinguishes between “judicial conversations” between the ECJ and national courts and “political conversations” between Member States in Intergovernmental Conferences and within the EU institutions. However de Witte casts doubts on such “judicial conversations”: B. de Witte, “The Closest Thing to a Constitutional Conversation in Europe: The Semi-Permanent Treaty Revision Process,” in P. Beaumont et al. (eds.), Convergence and Divergence in European Public Law, OUP, Oxford (2002), 39, at 40–41. 88 A. Dashwood & A. Johnston, “Synthesis of the Debate,” in A. Dashwood & A. Johnston (eds.), The Future of the Judicial System of the European Union, Hart Publishing, Oxford and Portland (2001), 55, at 58. 89 Ibid., at 58–59.

conclusion283 without the input of the other. This fact lends great credence to the co-operative analysis of the relationship between national courts and the Community judicature.

The notion of ‘judicial deference’ or ‘judicial comity’ has already been well promoted through the margin of appreciation doctrine in public international law.90 This doctrine has been applied by a number of international courts (including the ECtHR) and has been imported into EU law.91 In this latter context, the doctrine comprises two core elements:92 (i) judicial deference whereby the ECJ and national courts should grant each other a certain degree of deference and respect their discretion in executing EU legal obligations (‘norm application’); and (ii) normative flexibility where international law norms subject to this doctrine are characterised as open-ended or unsettled. Such norms provide the States with limited guidance and established a broad zone of legality within which they are free to operate (‘norm interpretation’). The notion of deference has been further built on by Dani in his discussion on intersectional litigation.93 In recognising the “highly fragmented European legal environment” in which there appears to be lacking “a single and neutral perspective where multiple legitimate claims of authority can be reconciled once and for all,” he proposes a further refinement in the form of ‘contextual deference.’ Envisaged as an interpretive strategy in order to promote external coherence between court decisions in separate legal orders (EU and national), Dani suggests that—while courts continue to frame cases by means of their own legal languages (cf. the issue of mentalités94)—they should defer to the interpretive and normative claims of related legal systems. It might therefore be contended that this requirement of contextual deference is as much incumbent on the ECJ as it is on national constitutional courts. Moreover, the framing of all these solutions confirms the evolution of a more co-operative and dialogue-based relationship between Luxembourg and domestic constitutional tribunals. b. Dialogue and Co-operation—Not Hierarchy In instances where the ECJ has, in effect, decided the case at a national level and thereby overstepped the demarcation lines,95 nevertheless such cases are the 90 Y. Shany, Regulating Jurisdictional Relations between National and International Courts, OUP, Oxford (2007), at 185. 91 G. Martinico & O. Pollicino, The Interaction between Europe’s Legal Systems: Judicial Dialogue and the Creation of Supranational Law, Edward Elgar, Cheltenham and Northampton (MA) (2012), at 16. 92 Ibid., at 158–159. 93 M. Dani, “Intersectional litigation and the structuring of a European interpretive community” (2011) 9 ICON 714–736. 94 See Chapter One, point B.2.a. 95 In these cases, the ECJ seemed effectively to have decided the outcome at the national level as well: Case 106/89 Marleasing SA v. La Comercial Internacional de Alimentacion SA [1990] ECR 4135; and Case C-323/93 R. v. H.M. Treasury, ex parte British Telecommunications PLC [1996] ECR I-1631.

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exception.96 For Dashwood & Johnston, “the relationship between the national and Community jurisdictions is undoubtedly a complex, finely balanced and shifting one but it is also one which remains fundamentally co-operative in character, not hierarchical.”97 Such position is consistent with the complex notion of a constitutional order of states.98 As Slaughter has observed:99 The tug of war between the ECJ and all national courts, both high and low, will continue, even as their relations and their jurisprudence become increasingly intertwined. However, just as the [FCC] declared the European Union to be not a “confederation” but a “community of states,” so too is its legal system best characterized as a community of courts. Within this community, each court is a check on the other, but not a decisive one, asserting their respective claims through dialogue of incremental decisions signaling opposition or cooperation.

According to Stone Sweet,100 it amounts to a dialogue of constitutionalism within a national-supranational framework. What then would be the basis for a more collaborative judicial relationship between the ECJ and the national constitutional courts in order to ensure overall constitutionality throughout the EU? In order to answer this question, political scientists and legal academics have tried to develop a theory for the evolving Union and its diffuse constitutional controls and even a (contested/negotiated) solution to the situation. 2. The Constitutional Stand-Off Explained as ‘Normal’ a. Pluralist Constitutionalism as an Explanation Of the many theories that have been expounded over recent years, those of multilevel or pluralist constitutionalism have gone some way to comprehend the currently evolving situation in the EU.101 The ‘post-national constellation’102 within the EU produces an approach to constitutionalism in the EU where state or

96 And national courts are not slow in emphasising their prerogatives: see Brasserie (Cases C-46/93 and C-48/93 Brasserie du Pêcheur SA v. Germany [1996] ECR I-1029) on its return to the German courts: Brasserie de Pêcheur II, 24 Oktober 1996, III ZR 127/91: BGHZ 134, 30; [1997] 1 CMLR 971. 97 Dashwood & Johnston (2001), at 59. 98 A. Dashwood, “The limits of European Community powers” (1996) 21 EL Rev. 113, at 114. 99 A.-M. Slaughter, “Judicial Globalization” (1999–2000) 40 Va. J. Intl. L. 1103, at 1108. 100 A. Stone Sweet, “Constitutional Dialogues in the European Community,” in Slaughter, Stone Sweet & Weiler (1998), chap. 11, 305, at 305–308. 101 I. Pernice, “Multilevel Constitutionalism and the Treaty of Amsterdam: European ConstitutionMaking Revisited” (1999) 36 CML Rev. 710; N. Walker, “The Idea of Constitutional Pluralism” (2002) 65 MLR 317; and R. Barents, “The Precedence of EU Law from the Perspective of Constitutional Pluralism” (2009) 5 EuConst 421. 102 J. Habermas, “Die postnationale Konstellation” (1998) Politische Essays 91; M. Zürn, “The State in the Post-National Constellation” (1999) ARENA Working Papers WP 99/35. Available at: . Accessed 10 January 2009; J. Shaw, “Postnational constitutionalism in the European Union” (1999) Jo. Euro. Public Policy 579, at 586.

conclusion285 public power is limited to that established in the constitution.103 Within this trend of thought, the conceptualising of the EU constitutional construct may be seen as a complementary structure of national and European constitutions.104 b. The European Constitutional Area as Complementary not Competitive Pernice105 has identified this as Verfassungsverbund106 or multilevel constitu tionalism, which already acknowledges the existence of an EU constitution arising from the national and European constitutional planes and which forms two levels of a unitary system in terms of substance, function and institutions.107 From the theoretical perspective of multilevel constitutionalism, Mayer conceptualises European constitutional adjudication positively as a complementary process:108 “Since the national courts’ and the ECJ’s authority both stem from the individual, there is no presupposed hierarchy between the courts, rather a duty of cooperation. The task of this composite European constitutional court would be that of a guardian and interpreter of the (composite) European constitution.” The fundamental consideration is how to minimise the potential for conflict in the case where there are divergent claims of ultimate jurisdiction in the multilevel system. Mayer argues that, in respect of European law primacy, multilevel constitutionalism exposes the basic requirements for the functioning of a conditional principle of supremacy between distinct levels of public power—the supremacy question can then only be answered unambiguously according to the content accorded to it at the overarching (supranational) level. In the EU, this content is the principle of priority of application (Anwendungsvorrang), though not in validity (Geltungsvorrang), of the law of the overarching level as expounded

103 P. Häberle, Verfassungslehre als Kulturwissenschaft, 2nd ed., Duncker & Humblot, Berlin (1998), at 620. 104 P. Craig, “Constitutions, Constitutionalism, and the European Union” (2001) 7 ELJ 125. 105 I. Pernice, “Bestandssicherung der Verfassungen: Verfassungsrechtliche Mechanismen zur Wahrung der Verfassungsordnung” in R. Bieber & P. Widmer (eds.) The European Constitutional Area, Schulthess, Zürich (1995), 225, at 261; I. Pernice, “Multilevel constitutionalism and the Treaty of Amsterdam: European Constitution-Making Revisited?” (1998) 36 CML Rev. 703; A. von Bogdandy, “The European Union as a supranational federation: A conceptual attempt in the light of the Amsterdam Treaty” (2000) 6 Col. Jo. Eur. L 27. 106 Literally, a compound of constitutions. See also M. Heintzen, “Gemeineuropäisches Verfassungsrecht in der EU” (1997) 32 EuR 1; and P. Häberle, “Verfassungsrechtliche Fragen im Prozeß der europäischen Einigung” (1992) 19 EuGRZ 429. Pernice’s concept of a Verfassungsverbund is not universally accepted: for criticism, see P. Kirchhof, “The Legal Structure of the European Union as a Union of States,” in A. von Bogdandy & J. Bast (eds.), Principles of European Constitutional Law, Hart Publishing, Oxford (2006), chap. 18, 763, at 776–777. 107 A. von Bogdandy & M. Nettesheim, “Die Europäische Union: Ein einheitlicher Verband mit eigener Rechtsordnung” (1996) 31 EuR 1. 108 Mayer (2003), at 38.

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by the FCC109 and expressly accepted by the CT,110 but rather impliedly by the HCC.111 In a similar fashion, Verhoeven112 explains and defends her ideas on a moderate pluralist interpretation of the European constitutional area—of networks of overlapping and interdependent legal systems, each of which has its own criteria for validity. She refers to the statement of MacCormick who noted113 that— [the pluralist image] suggests that the doctrine of supremacy of Community law is not to be confused with any kind of all-purpose subordination of Member State law to Community law. Rather, the case is that these are interacting systems, one of which constitutes in its own context and over the relevant range of topics a source of valid law superior to other sources recognised in each of the Member State systems.

Verhoeven114 perceives “an image of the legal sphere covering the EU territory … as a network of interlocking institutional arrangements and normative spheres wherein no one is privileged, where no central political power or final arbiter of constitutionality exists.” Thus, the EU appears both as a constitutional system of its own as well as referring to a pluralist constitutional area or space composed of different legal systems, i.e., European law/national law. Such area is a legal area, a form of ‘public space’115 governed by ‘meta’ values and principles116 that regulate the interface between the various legal systems operating in it. Nevertheless, as Verhoeven readily acknowledges,117 absent a single reference point, the pluralist conception of the interface between national and European constitutional law appears to condemn the EU to being a perpetually ‘contested project.’118 Yet, from national constitutional court practice, this has not been the case—although most domestic legal orders do not accept European law supremacy over national constitutions, for (nearly) all practical purposes, constitutional courts have accommodated themselves to the requirements of primacy. 109 This principle has also been followed by the Austrian Constitutional Court: VfGH G 2/97, 24 Juni 1998, VfSlg. 15215; see generally, e.g., Th. Öhlinger & M. Potacs, Gemeinschaftsrecht und staatliches Recht – Die Anwendung des Europarechts im innerstaatlichen Bereich, Orac, Wien (1998). However, the Austrian principle of application of priority (Anwendungsvorrang) does not imply a hierarchy of superiority or inferiority between EU and national constitutional law: R. Bieber & I. Salomé, “Hierarchy of Norms in European Law” (1996) 33 CML Rev. 907, at 912. 110 See above at Chapter Five, point D.2. 111 See above at Chapter Four, point D.2. 112 A. Verhoeven, European Union in Search of a Democratic and Constitutional Theory, Kluwer Law International, The Hague, London and New York (2002), at 299. 113 N. MacCormick, “The Maastricht-Urteil: sovereignty now” (1995) 1 ELJ 259, at 264. 114 Verhoeven (2002), at 299. 115 S. Benhabib, “Models of public space: Hannah Arendt, the liberal tradition and Jürgen Habermas,” in C. Calhoun (ed.), Habermas and the Public Sphere, MIT Press, Cambridge (1992), at 73–98. 116 Walker (2000), at 14–21. 117 Verhoeven (2002), at 300. 118 Z. Bańkowski & E. Christodoloudis, “The European Union as an essentially contested project” (1998) 4 ELJ 341.

conclusion287 The question then becomes, as MacCormick puts it,119 how a European reality can be conceptualised wherein—“our normative existence and our practical life are anchored in, or related to, a variety of institutional systems, each of which has validity or operation in relation to some range of concerns, none of which is absolute over all the others, and all of which, for most purposes, can operate without serious conflict in areas of overlap?” c. Co-operative Constitutional Adjudication If pluralism then is to be workable, Verhoeven maintains120 that it—“depends on an overarching principle of integrity that can be used as a yardstick assessing the reasonableness of the claims to validity and applicability of the different legal systems.” This overarching set of rules, which is ultimately meant to guide the pluralist interface, can neither be imposed top-down by the EU legal system, nor bottom-up by Member States. Consequently, the rules that guide the pluralist interface have to belong to a third ‘space,’ an overarching legal area, and “must be produced in an interactive manner through an ongoing discursive process between the different constituencies of which the pluralist polity is made.”121 Within such a process of overarching constitution construction, no one has the final word since each legal system (national or EU) has the final say only within its own jurisdiction.122 Mayer, having explored the objections to the idea of a complementary structure of European constitutional adjudication,123 continues by summarising the value of conceptualising what courts—at the national and supranational levels—in the EU do or should do by means of a non-hierarchic, composite multilevel structure. By establishing responsibilities of adjudication on European constitutional law for both court levels, the non-hierarchic relationship between them would accordingly take on a clearer form, constitutional clarity would be enhanced and a reciprocal strengthening of constitutional bonds and limits would be achieved: The multilevel approach can serve as a starting point to develop criteria for determining the limits of responsibilities and as a conceptual basis for the constitutional dialogue between the courts, which are allotted functions according to a specific concept of constitutionalism. That means rejecting the conflict paradigm and more readily accepting the cooperation paradigm. To some extent, the non-subordination of national courts could be explained and legitimised in terms of European constitutional law. It would no longer automatically be seen as an infringement of European law. 119 N. MacCormick, “Beyond the sovereign state” (1993) 56 MLR 17. 120 Verhoeven (2002), at 300–301. 121 Ibid., at 302. Emphasis in original. 122 M. La Torre, “Legal pluralism as an evolutionary achievement of Community law” (1999) 12 Ratio Juris 182. 123 Mayer (2003), at 39–42.

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In any case, he concludes, there would be clear limits on how national courts might act, which would remove the foundations of misleading legal reasoning. d. ‘Contrapunctual,’ ‘Best Fit’ or ‘Co-ordinate’? Poiares Maduro moves this discussion on with his concept of contrapunctual law as a way both to describe the subsisting constitutional pluralism in the EU and to explain how national courts and the ECJ should interact.124 His approach takes three steps, the first being that the courts must accept the idea of pluralism:125 “and legal order (national or European) must respect the identity of the other legal orders; its identity must not be affirmed in a manner that either challenges the identity of the other legal orders or the pluralist conception of the European legal order itself.” According to Poiares Maduro, then, neither a national constitutional court nor the ECJ could assume the supremacy of its own legal order: ergo pluralism means the absence of a formal hierarchy between such legal orders. Komárek notes126 that “‘primacy in application’ in every case of conflict is therefore not the way towards real pluralism.” Secondly, for Poiares Maduro, the courts are to seek consistency and vertical and horizontal coherence in the whole EU legal order:127 “[w]hen national courts apply EU law they must do so in a manner as to make those decisions fit the decisions taken by the [ECJ] but also by other national courts.” Komárek128 regards this as a very ambitious claim and one which requires the ECJ to take seriously the decisions of national courts as a necessary consequence of the non-hierarchical organisation of the EU judiciary.129 Lastly, Poiares Maduro considers130 that: “any judicial body (national or European) should be obliged to reason and justify its decisions in the context of a coherent and integrated European legal order.” According to this principle, the courts are to reason in universal terms and are prohibited from relying on specific provisions of their own constitutions as justification for their rulings.131 Kumm,132 on the other hand, relies on the principle of best fit which assumes that both national and European constitutional orders are built on the same 124 M. Poiares Maduro, “Contrapunctual Law: Europe’s Constitutional Pluralism in Action,” in N. Walker (ed.), Sovereignty in Transition, Hart Publishing, Oxford (2003), chap. 21, 501–537. 125 Ibid., at 506. 126 J. Komárek, “European Constitutionalism and the European Arrest Warrant: In Search of the Limits of ‘Contrapunctual Principles’” (2007) 44 CML Rev. 9, at 30, footnote 110. Emphasis in original. 127 Poiares Maduro (2003), at 508. 128 Komárek (2007), at 30–31. 129 J. Komárek, “Federal elements in the Community judicial system: Building coherence in the Community legal order” (2005) 42 CML Rev. 9, at 27–30. 130 Poiares Maduro (2003), at 529–530. 131 Komárek (2007), at 31. 132 M. Kumm, “The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe before and after the Constitutional Treaty” (2005) 11 ELJ 262–307.

conclusion289 normative ideals:133 viz., liberty, equality, democracy and the rule of law common to all EU Member States and the EU itself. He states:134 [T]he task of national courts is to construct an adequate relationship between the national and European legal order on the basis of the best interpretation of the principles underlying them both. The right conflict rule or set of conflict rules for a national judge to adopt is the one that is best calculated to produce the best solutions to realize the ideals underlying legal practice in the European Union and its Member States.

Although further discussion of these points with Komárek enters into the realm of jurisprudence,135 these proposals nevertheless underpin the clear need for constitutional transjudicial communication and dialogue, not merely between one national constitutional court and the ECJ, but all national (constitutional) courts inter se. Bermann136 identifies the two unresolved questions which remain contested in the emerging ‘federal polity’ that is the EU: (1) the simple KompetenzKompetenz one, viz., in determining the outer limits of the exercise of legislative and policymaking authority by the European institutions, whether it is the ECJ (as the EU’s highest court) or the highest court of the Member State (e.g., the constitutional court) that ultimately decides the matter; and (2) whether, and if so when, national constitutional courts may allow—and possibly even demand— the non-application of EU law due to an irresolvable conflict between it (as interpreted by the ECJ) and the essential core of sovereignty as expounded in paramount national constitutional values (as understood by the constitutional court itself). In response to these questions, Sabel & Gerstenberg137 have argued that the potential clash of jurisdictions within the EU was actually being resolved by the formation of a ‘novel order of coordinate constitutionalism’ in which, inter alia, the ECJ and national (constitutional) courts agree to defer to one another’s decisions, provided these decisions respect mutually agreed essentials:138 This co-ordinate order extends constitutionalism – understood as the legal entrenching fundamental values rather than the founding act of political sovereignty – beyond its home territory in the nation state through a jurisprudence of mutual monitoring and peer review that carefully builds on national constitutional traditions, but does not create a new, encompassing sovereign entity.

133 Komárek (2007), at 34. 134 Kumm (2005), at 286. 135 Komárek (2007), at 35–37. 136 G. Bermann, “The ‘Highest Court’ in Federal Systems,” in I. Pernice, J. Kokott & C. Saunders (eds.), The Future of the European Judicial System in a Comparative Perspective, Nomos Verlag, BadenBaden (2006), 91, at 93–94. 137 C.F. Sabel & O. Gerstenberg, “Constitutionalising an Overlapping Consensus: The ECJ and the Emergence of a Coordinate Constitutional Order” (2010) 16 ELJ 511. 138 Ibid., at 512.

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Interestingly for the present work, these authors base their argument—that the constitutional orders are in such a way profoundly linked without being integrated—on the FCC’s Solange principles in Internationale Handelsgesellschaft139 and Wünsche.140 According to their interpretation of these cases, those principles provide that each legal order accepts the decisions of the others, even if another decision would have been more consistent with the national constitutional tradition ‘as long as’ those decisions do not systematically violate its own understanding of constitutional essentials:141 “Solange thus commits each order to monitor the jurisprudential output of the others, and to make acceptance of their deviations from national preferences contingent on a continuing finding of equivalence of fundamental results.” The creation of this co-ordinate constitutional order, they argued,142 was best regarded as an example of Rawlsian ‘overlapping consensus.’ According to this, an agreement on fundamental commitments of principle—those essentials which each order required the others to respect as the condition of its own deference to their decisions—did not rest on mutual agreement on any single, comprehensive moral doctrine embracing ideas of human dignity, individuality, etc. The emergent co-ordinate order suggested a development of the idea of overlapping consensus by demonstrating how the Solange principles—in requiring each order to monitor the others’ respect for essentials—created an institutional mechanism for articulating and adjusting the practical meaning of these ideals. Sabel & Gerstenberg connect mutual monitoring and overlapping consensus with the idea of deliberative polyarchy143 by showing that the emergent constitutional order was polyarchic since, absent a final arbiter, it had to resolve disputes by exchanges among co-ordinate bodies, each with a contingent claim to competence; and such polyarchy was deliberative as the parties were bound in these exchanges to re-examine their own interpretations of shared principles—and thus, eventually, the underlying views on which such interpretations were based— in the light of arguments presented by others. Certainly, Sabel & Gerstenberg’s approach reflects, once again, a need to ensure the continuing transjudicial communication and dialogue between the ECJ and national (constitutional) courts and between the latter inter se. Indeed this has been a steady component of recent formulations of the theoretical framework for such mutually-respecting dialogue within the European Union.

139 Internationale Handelsgesellschaft, 29 Mai 1974, 2 BvL 52/71: BVerfGE 37, 271; [1974] 2 CMLR 540. 140 Wünsche Handelsgesellschaft, 22 Oktober 1986, 2 BvR 197/83: BVerfGE 73, 339; [1987] 3 CMLR 225. 141 Sabel & Gerstenberg (2010), at 513. 142 Ibid., at 513. 143 Ibid., at 543–550.

conclusion291 For example, Torres Pérez notes144 that the legitimacy potential of dialogue resides in two factors: (i) judicial dialogue, as an ongoing exchange of arguments, is a means to reach better-reasoned outcomes for the community as a whole; and (ii) judicial dialogue promotes participation in interpretative activity so that the outcome emerges from a collective communicative enterprise. However, her next point has relevance for the further discussion in this Chapter when she notes:145 In addition, from a broader perspective, dialogue contributes to building a common “constitutional identity” for this supranational community through an ongoing discussion on the meaning of shared fundamental rights. Ultimately, given the EU pluralist framework, dialogue provides the best regulative model for the dynamic interaction between national and supranational systems regarding fundamental rights adjudication.

Such discussion, focused as it is on fundamental rights, might easily be extended to other key areas of national constitutional identity.146 Torres Pérez’s later remarks147 that “mutual recognition between national and supranational courts, while respecting diverging opinions, secures a fair dialogue” and “does not imply renouncing their respective identities” is redolent of the approach in recent years, implicitly or explicitly, adopted by the FCC148 and Polish CT.149 e. Outwith the Hierarchy This brief analysis allows for understanding the European judicial system as a non-hierarchical, multilevel system, based upon voluntary acceptance, political equilibrium and the mutual control of European and national courts150 but with the more controversial questions still unresolved and ‘accepted’ as such by the ECJ and national constitutional courts alike. Within this theoretical framework, then, to what extent does the new Treaty framework (post Lisbon) provide for the implementation of such principles? In this scenario, Art. 4 TEU may be regarded as a pivotal provision in protecting national constitutional orders in the EU system. As such, could it provide for a possible judicial solution to the perennial problem of European law supremacy vis-à-vis national constitutional provisions? 144 A. Torres Pérez, Conflicts of Rights in the European Union: A Theory of Supranational Adjudication, OUP, Oxford (2009), at 112. 145 Ibid., at 112–113. 146 Mutual respect and identity building through judicial dialogue is also recognised by A. Hol, “Highest Courts and Transnational Interaction. Introductory and Concluding Remarks” (2012) 8 Utrecht L Rev. 1, at 7. 147 Torres Pérez (2009), at 126. 148 See above at Chapter Three, point E.2.d. 149 See above at Chapter Five, point E.2.c. 150 I. Pernice, “Introduction,” in Pernice, Kokott & Saunders (2006), 9, at 9; and F.C. Mayer, “Multilevel Constitutional Adjudication,” in A. von Bogdandy & J. Bast, Principles of European Constitutional Law, 2nd ed., Hart Publishing, Oxford/Portland (OR) and C.H. Beck, München (2010), chap. 11, 399–439.

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a. Constitutional Co-operative Adjudication—A Treaty Basis? Article 4 TEU151 links or perhaps juxtaposes the maintenance of national identities in the EU, inherent in their constitutional structures, with the principle of loyalty to the Union:152 1. In accordance with Article 5, competences not conferred upon the Union in the Treaties remain with the Member States. 2. 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. 3. 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 Member States 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 Union. The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives. [Emphasis supplied.]

Could these provisions in Art. 4 TEU be considered as enshrining protection and acceptance at the European level of the national understanding of the essential core of sovereignty? What renders the views previously discussed on plurilevel constitutionalism and pluralist constitutional adjudication particularly relevant for the present work is their analysis of Art. 4(2) TEU (ex-Art. 6(3) TEU, pre Lisbon) and its renvoi back to the constitutions of the Member States. In addressing the core question of where to locate ultimate jurisdiction claims of the highest national courts at the European level, Mayer regarded Art. 4(2) TEU as the substantive partner to the pro cedural Art. 267 TFEU (ex-Art. 234 EC) in addressing the issue. In his view, the inter pretation of Art. 4(2) TEU had to be accomplished by both the highest national courts and the ECJ, along the lines of Poiares Maduro. He then summarised much of what this Chapter seeks to prove, from a German constitutional perspective:153

151 A similarly-worded provision was set out in the Draft Constitutional Treaty 2003, EU Art. I-5. 152 Art. 5(1) TEU explicitly recognises that the limits of the Union competences are governed by the principle of conferral and further, in Art. 5(2) TEU: “Under the principle of conferral, the Union shall act within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.” 153 Mayer (2003), at 39.

conclusion293 The fundamental rights saga from Solange I up to the Banana decisions in front of the ECJ and the BVerfG seems to indicate that the respective courts of ultimate decision, guardians of the interests of the respective levels, are already working towards establishing a core of (constitutional) law exempt from the supremacy of European law, and accepted as such from both levels. [Emphasis supplied.]

Article 4(2) TEU was originally introduced, by the Maastricht Treaty, to help highlight the continuing importance of the state in the EU154 and Wouters155 has read it as providing, at the European level, a confirmation of national courts’ views that European integration must leave intact the essential core of sovereignty. Although Art. 4(2) TEU (and its predecessors) was not justiciable on its own, nevertheless the ECJ in Commission v. Luxembourg156 used it as an interpretative tool, stating the protection of national identities of Member States was a legitimate objective that the EU legal order had to respect; in other cases, the ECJ has also taken into consideration concerns of national identity.157 In this respect, Verhoeven’s most apposite proposition, shared by the present author, comes when she states:158 Democracy, respect for human rights and the rule of law are safeguarded at various constitutional levels within the Union. Each legal order (national, European) has its own understanding of what these principles mean and how they should translate in institutional practice. National peculiarities form part of the specific ‘national identities’ of the Member States that must be respected…. Neither should control and sanction mechanisms be rendered uniform. There is much merit in maintaining the current de-centered system for norm-production and enforcement regarding the fundamental principles.

In championing the continued existence of a pluralist, de-centralised legal system for the EU and its Member States, she argues strongly that the common constitutional standards gradually emerging in the Union are accomplished through an ongoing dialogue between constitutional partners belonging to various and overlapping legal systems (including constitutional courts). While in such system absolute legal certainty was unattainable, it was equally undesirable, otherwise the Member States would lose their critical position as constituent forces in the European integration process. As a result the success of the European integration project—to achieve an ever closer union between legal systems that retained their own autonomy (national identity)—hinged on a successful reconciliation of the

154 A. Bleckmann, “Die Wahrung der ‘nationalen Identität’ im Unions-Vertrag” (1997) 52 JZ 265; A. Dashwood, “States in the European Union” (1998) 23 EL Rev. 201. 155 J. Wouters, “Grondwet en Europese Unie” (1999) TBP 303, at 311. 156 Case C-473/93 Commission v. Luxembourg [1996] ECR I-3207, at para. 35. 157 Case 147/86 Commission v. Greece [1988] ECR 1637; Case 379/87 Groener v. Minister for Education [1989] ECR 3967; Case C-159/90 Society for the Protection of the Unborn Child v. Grogan [1991] ECR I-4719. 158 Verhoeven (2002), at 324–325.

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horizontal (acceptance) and the vertical (loyalty) dimensions of the relationship between the EU and national legal systems.159 b. ECJ Affirmation of Co-operative Constitutional Adjudication Against the backdrop of the ECJ underlining the importance of co-operation with national courts,160 it would appear that a series of rulings supports the present contentions on the ECJ’s respect for the specific constitutional identity of the Member States.161 Groussot argues162 that, in the Omega case,163 the ECJ balanced the right to human dignity (under German Constitution Art. 1) with the freedom to provide services when it held that:164 Since both the Community and its Member States are required to respect fundamental rights, the protection of those rights is a legitimate interest which, in principle, justifies a restriction of the obligations imposed by Community law, even under a fundamental freedom guaranteed by the Treaty such as the freedom to provide services.

Further in Laval,165 the ECJ made an express reference to the importance of the right to collective action enshrined in Art. 17 of the Swedish Constitution and pointed out166 that exercising the right to take collective action “for the protection of the workers of the host State against possible social dumping may constitute an 159 Ibid., at 358. 160 See Case C-50/00 P Unión de Pequeños Agricultores v. Council [2002] ECR I-6677, at para. 42; Case C-355/04 P Segi v. Council [2007] ECR I-1657, at para. 38; and Case C-432/05 Unibet (London) Ltd. v. Justitiekanslern [2007] ECR I-2271, at para. 38: “[u]nder the principle of cooperation laid down in Article 10 EC, it is for the Member States to ensure judicial protection of an individual’s rights under Community law.” 161 The present author will not be presenting an extensive and detailed analysis of all the relevant ECJ case-law related to this subject. For such analysis, the reader is directed to A. Pliakos, “Le contrôle de constitutionnalité et le droit de l’Union européenne: la réaffirmation du principe de primauté” (2010) 46 CDE 487–514; O. Peiffert, “L’encadrement des règles constitutionnelles par le droit de l’Union européenne” (2011) 47 CDE 433–470; and I. Pernice, “Der Schutz nationaler Identität in der Europäischen Union” (2011) 136 AöR 185, at 207–220. On the distinct nature and implications of the different type of balancing between EU law and the common constitutional traditions of the Member States, and between EU law and specific national constitutional provisions, see Martinico & Pollicino (2012), at 228–238. 162 Groussot (2008), at 21. 163 Case C-36/02 Omega Spielhallen- und Automatenaufstellungs-GmbH v. Oberbürgermeisterin der Bundesstadt Bonn [2004] ECR I-9609. 164 Ibid., at para. 35. 165 Case C-341/05 Laval un Partneri Ltd. v. Svenska Byggnadsarbetareförbundet [2007] ECR I-11767, at para. 92. 166 Ibid., at para. 103. In support of this proposition, the ECJ referred to Joined Cases C-369/96 and C-376/96 Criminal proceedings against Arblade [1999] ECR I-8453, at para. 36; Case C-165/98 Mazzoleni and Inter Surveillance Assistance SARL [2001] ECR I-2189, at para. 27; Joined Cases C-49/98, C-50/98, C-52/98 to C-54/98 and C-68/98 to C-71/98 Finalarte v. Urlaubs- und Lohnausgleichskasse der Bauwirtschaft [2001] ECR I-7831, at para. 33; and Case C-438/05 International Transport Workers’ Federation v. Viking Line ABP [2007] ECR I-10779, at para. 77.

conclusion295 overriding reason of public interest within the meaning of the case-law of the Court which, in principle, justifies a restriction of one of the fundamental freedoms guaranteed by the Treaty.” In addition, the ECJ has seemingly given discretion to the national courts to apply the proportionality test (although retaining the ability to provide guidance to the domestic judge), as it said in Viking Line:167 “[I]t is ultimately for the national court, which has sole jurisdiction to assess the facts and interpret the national legislation, to determine whether and to what extent such collective action meets those requirements [of proportionality].” Accordingly the national court is expressly seen as the ultimate arbiter of the validity of domestic law in the context of EU fundamental rights.168 Moreover, the ECJ in Advocaten voor de Wereld169 confirmed the need for the same type of dialogue within the EU’s former Third Pillar. The late Ruiz-Jarabo Colomer AG noted in that case:170 The protective role [regarding fundamental rights] is exercised in three different spheres – national, Council of Europe and European Union – which are partly coextensive and, most importantly, are imbued with the same values. There are many points of intersection and overlapping is possible, but respect for other jurisdictions does not create any insurmountable problems where there is confidence that all parties exercise their jurisdiction while fully guaranteeing the system of coexistence. A dialogue between the constitutional courts of the European Union permits the foundations to be laid for a general discussion.

Groussot thus notes:171 “The upshot of all this is that a spirit of dialogue and compromise emerges from the multi-level system of European constitutionalism…. Compromise is necessary and dialogue is of [the] essence.” These views were reinforced by Poiares Maduro AG in Michaniki where he elaborated on the notion of Member State identity:172 It is true that the European Union is obliged to respect the constitutional identity of the Member States. That obligation has existed from the outset. It indeed forms part of the very essence of the European project initiated at the beginning of the 1950s, which consists of following the path of integration whilst maintaining the political existence of the States. That is shown by the fact that the obligation was explicitly stated for the first time upon a revision of the treaties, a reminder of the obligation being regarded as necessary by the Member States in view of the further integration provided for. Thus, Article F(1) of the Maastricht Treaty, now Article 6(3) of the Treaty on European Union, provides that ‘the Union shall respect the national identities of 167 Case C-438/05 International Transport Workers’ Federation v. Viking Line ABP [2007] ECR I-10779, at para. 85. 168 Groussot (2008), at 21. 169 Case C-303/05 Advocaten voor de Wereld v. Leden van de Ministerraad [2007] ECR I-3633. 170 Ibid., Opinion of Ruiz-Jarabo Colomer, at para. 81, footnote omitted. 171 Groussot (2008), at 22. 172 Opinion of Poiares Maduro AG in Case C-213/07 Michaniki AE v. Ethniko Simvoulio Radiotileorasis [2008] ECR I-9999, at para. 31.

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chapter six its Member States’. The national identity concerned clearly includes the constitutional identity of the Member State. That is confirmed, if such was necessary, by the explanation of the aspects of national identity put forward in Article I-5 of the Treaty establishing a Constitution for Europe and Article 4(2) of the Treaty on European Union as amended by the Treaty of Lisbon. It appears, indeed, from the identical wording of those two instruments that the Union respects the “national identities [of Member States], inherent in their fundamental structures, political and constitutional”.

In Sayn-Wittgenstein, in which the complainant argued that an Austrian constitutional rule prohibiting use of noble titles infringed her free movement rights, the ECJ referred for the first time to Art. 4(2) TEU:173 “in accordance with Article 4(2) TEU, the European Union is to respect the national identities of its Member States, which include the status of the State as a Republic.”174 The ECJ in Sayn-Wittgenstein appears impliedly to have used Art. 4(2) TEU to support the justification of the restriction on EU rights caused by the Austrian constitutional prohibition on noble titles, amounting to a subsidiary argument in the understanding of von Bogdandy & Schill.175 Through Runevič-Vardya,176 the ECJ extended the concept of national (constitutional) identity under Art. 4(2) TEU to cover protection of the official language of a Member State177 being a legitimate aim to restrict EU free movement rights.178 The individual mentalité of each Member State constitution received support from the ECJ—echoing its earlier ruling in Omega179—when it stated in SaynWittgenstein that:180 “the specific circumstances which may justify recourse to the concept of public policy may vary from one Member State to another and from one era to another. The competent national authorities must therefore be allowed a margin of discretion within the limits imposed by the Treaty.” Although this would appear to mean that national (constitutional) identity as a ground for justification might be invoked with respect to specific national interests—even if they 173 Case C-208/09 Sayn-Wittgenstein v. Landeshauptmann von Wien [2010] ECR I-13693, at para. 96. 174 This approach underlines the point made at Chapter One, point 3.a., when referring to the nature of the essential core of sovereignty or the constitutional identity of Member States, of which the form of government – whether monarchy or republic – forms part of such core or identity. 175 A. von Bogdandy & S. Schill, “Overcoming absolute primacy: Respect for national identity under the Lisbon Treaty” (2011) 48 CML Rev. 1417, at 1424. 176 Case C-391/09 Runevič-Vardyn v. Vilniaus miesto savivaldybės administracija [2011] ECR-I 0000, nyr. 177 Ibid., at para. 86. 178 As the ECJ had previously done in Case 379/87 Groener v. Minister for Education [1989] ECR 3967, at para. 18, when it considered that the maintenance and promotion of the Irish language could be qualified as an “expression of national identity and culture,” as contended by the Irish Government. 179 Case C-36/02 Omega Spielhallen- und Automatenaufstellungs-GmbH v. Oberbürgermeisterin der Bundesstadt Bonn [2004] ECR I-9609, at para. 31. 180 Case C-208/09 Sayn-Wittgenstein v. Landeshauptmann von Wien [2010] ECR I-13693, at para. 87.

conclusion297 are not shared among the majority of Member States181—this does not imply a blanket acceptance of all national constitutional provisions as furnishing the appropriate basis for justifiable restrictions on (the exercise of) EU law rights. Based on the view that “a much more intricate mutuality … exemplifies the composite nature of the European constitutional order,” Besselink182 argues that the ECJ would ultimately not decide in an exclusive manner what is the constitutional identity of a Member State. He therefore suggests, in this dialogue,183 that it would be for the national (constitutional) court to determine the constitutional identity, and the ECJ to determine the meaning of the relevant EU law provision in dispute. In such case, the ECJ could be regarded as ‘vetting’ each and every claim—based on the claimed grounds of protecting national (constitutional) identity that restricts an EU law or right—as to whether or not such restriction actually forms part of a Member State’s constitutional identity184 under Art. 4(2) TEU. c. Declaration 17 of the Lisbon Treaty: Reaffirmation of the Past and Brake on Pluralist Constitutional Adjudication? Despite the positive wording of Art. 4(2) TEU and the case-law of the ECJ on respecting national constitutional identities, the probability of more judicial ‘negotiations’ or ‘dialogue,’ even ‘conflict’ seems inherent in Declaration 17 to the Lisbon Treaty on the issue of EC law primacy. This replaces EU Constitutional Treaty 2003, Art. I-6185 which stated: “The Constitution, and law adopted by the Union’s Institutions in exercising competences conferred on it, shall have primacy over the law of the Member States.” This provision in the EU Constitutional Treaty would have given the primacy of European law an express legal and constitutional basis.186 Now Declaration 17 of the Lisbon Treaty states: “The Conference recalls 181 H. van Eijken, “Case C-391/09, Malgožata Runevič-Vardyn and Łukasz Paweł Wardyn v. Vilniaus miesto savivaldybės administracija and Others, Judgment of the Court (Second Chamber) of 12 May 2011, nyr” (2012) 49 CML Rev. 809, at 820. 182 L. Besselink, “National and constitutional identity before and after Lisbon” (2010) 6 Utrecht L Rev. 36, at 44. 183 Ibid., at 45. 184 L. Besselink, “Case C-208/09, Ilonka Sayn-Wittgenstein v. Landeshauptmann von Wien, Judgment of the Court (Second Chamber) of 22 December 2010, nyr” (2012) 49 CML Rev. 671, at 687. 185 P. Cramér, “Does the Codification of the Principle of Supremacy Matter?” (2004–2005) 7 CYELS 57; S. Kadelbach, “Vorrang und Verfassung: Das Recht der Europäischen Union im innerstaatlichen Bereich,” in C. Gaitanides, S. Kadelbach & C.C. Rodríguez Iglesias (eds.), Europa und seine Verfassung – Festschrift für Manfred Zuleeg, Nomos, Baden-Baden (2005), 219; D. Ritleng, “Le principe de primauté du droit de l’Union” (2005) 41 CDE 285. 186 See A. Albi & P. Van Elsuwege, “The EU Constitution, national constitutions and sovereignty: an assessment of a ‘European constitutional order’” (2004) 29 EL Rev. 741, at 751; and M. Kumm & V. Ferreres Comella, “The primacy clause of the constitutional treaty and the future of constitutional conflict in the European Union,” Jean Monnet Working Paper 5/04, at 8–9. Available at: . Accessed 10 January 2009. The 1997 Treaty of Amsterdam had already come close to stating that European law had primacy over national law: its Protocol on the Application of the Principles of Subsidiarity and proportionality maintains that

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that, in accordance with well settled case law 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, under the conditions laid down by the said case law.” The Conference also decided to attach to this Declaration the Opinion of the Council Legal Service on the primacy of EC law:187 It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case-law (Costa/ENEL, 15 July 1964, Case 6/64[188]) there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice.

This reference in Declaration 17 to the already-established European constitutional acquis is significant since, in its development of the principle of European law supremacy, the ECJ ruled in Internationale Handelsgesellschaft189 that even provisions of secondary legislation took priority over conflicting clauses of a national constitution, even those regarding fundamental rights.190 Thus “even the most minor piece of technical EU legislation ranks above the most cherished constitutional norm.”191 But as has been seen with the entry into force of the Lisbon Treaty, this absolute primacy cannot be maintained “since Art. 4(2) TEU anchors the respect for the national identity,”192 and von Bogdandy & Schill193 consider Art. 4(2) TEU as being able to assist in the reconceptualisation of the relationship between EU law and domestic constitutional law: they consider that this provision can thus guide the way to a more nuanced understanding between, on the one hand, the ECJ position of absolute primacy of EU law over national subsidiarity “shall not affect the principles developed by the Court of Justice regarding the relationship between national and Community law.” These principles include the primacy of European law: V. Miller & C. Taylor, House of Commons Research Paper 08/09, at 27. Available at: . Accessed 10 January 2009. 187 Opinion of the Council Legal Service, 22 June 2007, 11197/07. Available at: . Accessed 10 January 2009. 188 The footnote quoted directly from Case 6/64 Costa v. ENEL [1964] ECR 585: “It follows … that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question.” 189 Case 11/70 Internationale Handelsgesellschaft mbH v. Einfuhr-und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125. 190 I. Pernice, “The Treaty of Lisbon and Fundamental Rights,” in S. Griller & J. Ziller (eds.), The Lisbon Treaty. EU Constitutionalism without a Constitutional Treaty?, Springer Verlag, Wien and New York (2008), 235, at 239. 191 M. Claes, The National Courts’ Mandate in the European Constitution, Hart Publishing, Oxford and Portland (OR) (2006), at 96. 192 M. Bossuyt & W. Verrijdt, “The Full Effect of EU Law and of Constitutional Review in Belgium and France after the Melki Judgment” (2011) 7 EuConst 355, at 363. 193 Von Bogdandy & Schill (2011), at 1418.

conclusion299 constitutional law and, on the other, a doctrine of relative primacy of Member State constitutional courts which allow EU law primacy subject to certain constitutional limitations. To what extent does the respect for constitutional identity of Member States in Art. 4(2) TEU trump the ECJ-ordained principle of primacy of EU law? The nub of the problem may be looked at from the viewpoint of a ‘some constitutional provisions are more equal than others’ approach, basically distinguishing between different provisions or principles of a constitution. In this sense, some rules (as argued throughout this work) form the essential core of sovereignty that cannot be imperilled by EU law primacy and accordingly form the unique ‘constitutional identity’ of a Member State; other constitutional rules are not fundamental and therefore do not form part of that essential core/constitutional identity of a State and are thus not privileged vis-à-vis EU law primacy.194 This line of argument may be considered to be supported by the decision of the Austrian Constitutional Court,195 when it gave priority to EU law over a national constitutional provision, and by the ECJ ruling in Michaniki196 in respect of the primacy of harmonised EU secondary law over national constitutional law.197 The fears of ‘constitutional cacophony’ in relation to national (constitutional) identity have not yet been borne out in practice. In fact, as seen from this work and also noted by von Bogdandy & Schill,198 the case-law of domestic constitutional courts displays considerable convergence; this book has shown that the existence of an essential core of sovereignty—the constitutional identity of a Member State under Art. 4(2) TEU which the EU (and the ECJ) must respect—is largely quiescent around a set of basic principles identified in Chapter One,199 the actual contours of which are still in the process of being determined both through national court decisions concerned with domestic legal issues as well as through the co-operative interaction between the ECJ and national (constitutional) courts.200 The work of the ECJ and national constitutional courts would thus involve a type of balancing of respective interests, into which the principle of proportionality would intercede, in order to help determine whether or not an EU act impacted 194 Ibid., at 1430–1431; and Besselink (2010), at 47–48. 195 VfGH B 1625/98, 24 Februar 1999, VfSlg. 15427. This judgment is notable because, for the first time, the VfGH acknowledged that EC law – the provision of a Directive enjoying direct effect – took priority over a provision of the (national) Constitution, which consequently had to be disapplied. 196 Case C-213/07 Michaniki AE v. Ethniko Simvoulio Radiotileorasis [2008] ECR I-9999: see Besselink (2010), at 48; and also V. Kosta, “European Court of Justice Case C-213/07, Michaniki AE v. Ethniko Simvoulio Radiotileorasis, Ipourgos Epikratias” (2009) 5 EuConst 501–516. 197 Cf. Case 11/70 Internationale Handelsgesellschaft mbH v. Einfuhr-und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125. 198 Von Bogdandy & Schill (2011), at 1435. 199 See above at Chapter One, point B.3.a. 200 Von Bogdandy & Schill (2011), at 1435–1440.

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negatively on an ‘essential core’ constitutional principle or a principle outside that core: in this determination, however (as the FCC in Honeywell201 and the Polish CT in EU Regulation202), it would be of paramount importance to garner the accord of the ECJ and the relevant domestic constitutional court. As has been shown already in the previous section, the ECJ is well able to take into account in its own case-law a national constitutional court’s own understanding of its national (constitutional) identity, thereby allowing the ECJ to accommodate a broad spectrum of notions of national identity under Art. 4(2) TEU. 4. The ECJ Ship Continues on its Voyage from Lisbon a. Past Flexibility in ECJ Approach For much of the last 40 years, the ECJ has thus sought to expand competences203 and, comparatively rarely—e.g., in the case of creating a catalogue of human rights or of refusing to extend horizontal direct effect to provisions of Directives –, has ever properly addressed the concerns of national constitutional courts.204 The ECJ is engaged in ‘defensive constitutionalism,’205 which involves defence of certain core principles of the EC (EU) constitutional legal order against attack from outside. Were this to continue in the new EU (post-Lisbon) legal order—in which the pillar structure is largely done away with by subsuming the EC into the EU, thereby presenting206 “a unitary actor with its own political and legal system”— national constitutional courts could still try to avoid such interpretative implications behind Declaration 17 to the Lisbon Treaty and avoid making references to the ECJ. Alternatively, as already seen from both the ECJ and academic writings, the interface between the absolute primacy of the EU law of the ECJ and its

201 Honeywell, 6 Juli 2010, 2 BvR 2661/06: BVerfGE 126, 286; [2011] 1 CMLR 33, 1067. 202 Dec. SK 45/09, 16 November 2011: OTK ZU 2011/9A, Item 97. 203 Even turning itself into the constitutional court of the EU according to Curtin through a series of rulings on the protection of human rights of individuals in Union pillars that do not provide the same legal protection as the Community. In all cases, she asserts, the solution appeared to be the same: the ECJ either interpreted the non-EC (i.e., Union) provisions in the light of the overall Union (Yusuf/Kadi) or it used Community analogy to establish the outcome (Pupino and Segi) it considered necessary from a constitutionalist point of view: see D. Curtin, “The Sedimentary European Constitution – The Future of ‘Constitutionalisation’ without a Constitution,” in I. Pernice & E. Tanchev (eds.), Ceci n’est pas une Constitution – Constitutionalisation without a Constitution?, Nomos Verlag, Baden-Baden (2008), 76, at 82. 204 For an outline of the situation in this area pre and post EU Constitution, see House of Lords, European Union Committee, Law and Institutions (Sub-Committee E), “Future Role of the European Court of Justice,” EU 6th Report, Session 2003–2004, 15 March 2004, HL Paper 47, chap. 3(3), at paras. 54–81, especially at paras. 75–81. Available at: . Accessed 10 January 2009. 205 M. Poiares Maduro, “European and the Constitution: What if this is As Good As It Gets?,” in J.H.H. Weiler & M. Wind (eds.), Rethinking European Constitutionalism, CUP, Cambridge (2000), 74–102. 206 Curtin (2008), at 81.

conclusion301 limited primacy for national constitutional courts might lead to a (r)evolution in the relationship between these judicial bodies. b. Impact of Lisbon Treaty on ECJ and National Constitutional Courts Relationship The Lisbon Treaty could thus have the effect of inaugurating another stage in the ‘relationship of co-operation’ between the ECJ and domestic constitutional courts with a much clearer basis.207 No longer contained in judicial fiat, Declaration 17 puts into concrete treaty annex (though non-binding) form what may be regarded as one of the main tenets, if not the main tenet, of this often fraught co-operation. Taking the concept of primacy out of the ‘negotiated’ ECJ case-law and attaching it to the Lisbon Treaty (in a Declaration) might have appeared to many politicians and bureaucrats as a good solution to an old problem. What they have failed to see208 is that what has been ‘negotiated’ over some 40 years allowed for a certain flexibility or manoeuvrability of judicial position—both at the European and the domestic level—which might no longer inure in a static Treaty Declaration, ripe for interpretation by the ECJ. The ‘some room’ left to national constitutional courts thus seems to be very little at all. Such concerns, in relation to the EU Constitutional Treaty 2003, were identified by Albi & Van Elsuwege:209 The view that ultimate supremacy belongs to the national constitutions has been a major expression of the traditional concept of sovereignty in the context of European integration and has consistently been reiterated by the highest national courts. The national constitutional courts preserve the right to assess the limits of integration and undertake ultimate review as to whether the EU has acted within the powers conferred upon it by the national constitutions.

Thankfully, as seen in the series of cases earlier in this Chapter, it would appear that the ECJ is currently moving towards a more sensitive approach with respect to the constitutional identity or essential core of sovereignty of EU Member States. The basis for such a realignment of the respective (and previously entrenched) 207 Such an idea has recently been referred to as “judicial deliberative supranationalism”: see J. Komárek, “Federal elements in the Community judicial system: Building coherence in the Community legal order” (2005) 42 CML Rev. 9, at 30. For “deliberative supranationalism,” see Ch. Joerges, “‘Deliberative supranationalism’ – Two defences” (2002) 8 ELJ 133. 208 In previous Intergovernmental Conferences which, by definition, amounted to a negotiation between Member State governments outside of the framework of the EU’s procedures and institutions, neither the parliamentary nor judicial branches had been represented. The Convention on the Future of Europe marked a change by including national and European parliamentary representatives but not judicial ones. There was a resultingly distinct absence of judicial input into the Constitution except in the matter of issues surrounding the ECJ. In this respect, the Praesidium of the Convention set up a “discussion circle” that was given limited terms of reference before which, inter alia, the Presidents of the ECJ and the CFI were able to make submissions: European Convention, Discussion Circle on the Court of Justice, Final Report, CONV 636/03, Cercle I/13, 25 March 2003. Available at: . Accessed 15 January 2009. 209 Albi & Van Elsuwege (2004), at 761. Footnotes in the original excluded.

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views of the ECJ and national constitutional courts on EU law primacy is arguably derived from the actual wording of Declaration 17 when, in reference to EU law enjoying primacy over the law of Member States, it continues by stating “under the conditions laid down by the said [ECJ] case law.” As will be recalled, in the ECJ’s formulation in the 1970s of a catalogue of fundamental human rights as general principles of European law, it noted in Nold210 that the primary source of such principles comprised, inter alia, “the constitutional traditions common to the Member States.” Codified in the Maastricht Treaty,211 the EU was to “respect fundamental rights … as they result from the constitutional traditions common to the Member States, as general principles of Com munity law.” The notion of national constitutional traditions as part of national constitutional identities contributing to the formation of EU general principles of law was thus well established before the Lisbon Treaty. Moreover, Poiares Maduro’s words on constitutional identity in his Opinion in Michaniki—set out earlier— are additionally confirmed by the previously discussed pre-Lisbon Treaty ECJ case-law, e.g., Omega, Laval and Viking Line. Consequently a national constitutional identity exception to the primacy of European law already existed before the Lisbon Treaty came into force and Declaration 17 is no more than affirmation of the position which has subsequently been identified and clarified by the ECJ in its more recent rulings, e.g., Sayn-Wittgenstein and Runevič-Vardyn. c. Further Strains or a Welcome Catalyst for Change in the Relationship? The adoption of the Lisbon Treaty (and the further steps in integration that it has introduced) has put the views of national constitutional courts under the spotlight.212 The domestic constitutional courts are thus being faced with a prima facie situation in the Lisbon Treaty, on the basis of Declaration 17, that European law is supreme even over national constitutions but with the ‘constitutional identity’ exception implicit in the actual wording of that Declaration. Such courts have already proved to be neither unresourceful nor reticent in response.213 Despite views to the contrary, deepening European integration may bring national laws together in a way not originally conceived or actually foreseen. Within this new

210 Case 4/73 Nold v. Commission [1974] ECR 491, at para. 13. 211 Originally numbered Art. F(2) TEU, post-Amsterdam and pre-Lisbon numbered Art. 6(2) TEU. 212 Cf. Weiler who argues a contrario: “If supremacy was constitutionally mandated before [the Draft EU Constitutional Treaty], it remains mandatory now despite the failure of the constitutional project. That is legal logic.” See J.H.H. Weiler, “The Essential (and Would-Be Essential) Jurisprudence of the European Court of Justice: Lights and Shadows Too,” in Pernice, Kokott & Saunders (2006), 117, at 119. 213 As clearly shown in Lisbon, the FCC was shown not wanting in inventiveness in this respect: Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267; [2010] 3 CMLR 13, 276. See also M. Wendel, “Lisbon Before the Courts: Comparative Perspectives” (2011) 7 EuConst 96–137.

conclusion303 EU constitutional matrix, reading Arts. 4 and 5(2) TEU together, domestic constitutional courts—including those of Germany, Hungary and Poland—may be able, through the process of transjudicial communication, to take definitive steps along the road to harmonising their diverse formulae of the essential core of their respective national sovereignties.214 It has been one of the main theses of this work that all national constitutional courts are active participants in this process and that European integration is acting as a catalyst not only for a reformulation of what sovereignty means in the Union—whether at European, national or subnational level215—but also for finding common purpose among this group of elite courts in defining an increasingly identifiable, non-transferable ‘essential core of sovereignty,’ the contours of which are substantially coalescing at similar national limits.216 So in responding to the implications of constitutionalisation through annexing Declaration 17 to the Lisbon Treaty on the principle of primacy of EC law, the constitutional justices may be finally encouraged (due to activist and expansive interpretations by the ECJ) to articulate a common position on the essential core of sovereignty the exercise of which—at this stage of integration and public preparedness—cannot be transferred to the Union. The recognition of the essential core as being the national (constitutional) identity under Art. 4(3) TEU by the ECJ in its case-law is deepening and extending the mutual respect between national constitutional and European judicial bodies, thereby creating an atmosphere of common purpose in seeking sensitively to accommodate national and EU constitutional identities.217 Naturally, as with other matters European, a ‘common core’ would still allow for the distinctiveness of national understandings at the penumbra, e.g., the sensitive constitutional issue of abortion in Ireland218—constitutional pluralism should therefore also be regarded as a principle or value of the EU, and not just the political and social pluralism in Art. 2 TEU. Indeed, the FCC has—to some extent—specified the contents of an essential core of sovereignty in the 2009 Lisbon case.219

214 Generally M. Claes & M. de Visser, “Are You Networked Yet? On Dialogues in European Judicial Networks” (2012) 8 Utrecht L Rev. 100–114. 215 S. Tierney, “Reframing sovereignty? Sub-state national societies and contemporary challenges in the nation-state” (2005) 54 ICLQ 161. 216 Although the words of warning from Lazega, viz., “Dialogue across borders does not mechanically create consensus” should not be ignored in the present context: E. Lazega, “Mapping Judicial Dialogue across National Borders: An Exploratory Network Study of Learning from Lobbying among European Intellectual Property Judges” (2012) 8 Utrecht L Rev. 115, at 125. 217 See generally M.R. Donnarumma, “Intégration européenne et sauvegarde de l’identité nationale dans la jurisprudence de la Cour de justice et des Cours constitutionnelles” 2010/4 RFDC 719–750. 218 C-159/90 Society for the Protection of the Unborn Child v. Grogan [1991] ECR I-4719. 219 Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267, at 357–359; [2010] 3 CMLR 13, 276, at 340–341.

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d. The Need for a New Institutional Matrix? How then would the national constitutional courts (perhaps even with the concurrence of the ECJ) articulate such positions? No new judicial institutional arrangements are foreseen by the Lisbon Treaty to provide for an established forum at the European level between constitutional tribunals and the ECJ despite several earlier proposals, including a special Treaty Arbitration Court composed of representatives from national courts and one ECJ representative;220 a ‘Common Constitutional Court’ bringing together members of the Member State constitutional courts;221 a European Supreme Court or a European Constitutional Tribunal;222 a Union Court of Review;223 a Constitutional Council;224 or a European Conflicts Tribunal.225 Other fora may be considered under the auspices of which the constitutional courts of the EU Member States and the ECJ may meet although the value of such meetings are necessarily weaker in providing for binding resolutions than in the case of the ‘relationship of co-operation’ or the formal establishment of a new EU judicial body, as noted in the preceding paragraph. Such existing structures include the Conference of European Constitutional Courts (although their meetings occur only once every three years, members are pledged to remain in regular contact)226 or by means of the Council of Europe’s European Commis sion for Democracy through Law (the ‘Venice Commission’)227 which maintains a close watch “on the changes that constantly affect society and are reflected in its fundamental, that is its constitutional, rules.” Nevertheless, personal interactions between constitutional judges in the European Union context remain important.228 220 S. Bross, “Bundesverfassungsgericht – Europäischer Gerichtshof – Europäischer Gerichtshof für Kompetenzkonflikte” (2001) Verwaltungsarchiv 425; and S. Bross “Überlegungen zum gegenwärtigen Stand des Europäischen Einigungsprozesses” (2002) 29 EuGRZ 574. 221 U. Di Fabio, “Ist die Staatswerdung Europas unausweichlich?” FAZ, 2 Februar 2001, 8. 222 K. Friedrich, “Bundesfinanzhof contra Europäischen Gerichtshof,” 1985 RIW 794; S. Magiera, in D. Merten (ed.), Föderalismus und Europäische Gemeinschaften unter besonderer Berücksichtigung von Umwelt und Gesundheit, Kultur und Bildung, 1990, 127. 223 European Constitutional Group, A Proposal for a European Constitution, ECG, London (1993), Art. XV, at 39. Available at: . Accessed 10 January 2009. 224 J.H.H. Weiler, “The European Union Belongs to its Citizens: Three Immodest Proposals” (1997) 22 EL Rev. 150, at 155. See also J.H.H. Weiler, U. Haltern & F. Mayer, “European Democracy and Its Critique” (1995) 18 West European Politics 4, at 38; J.H.H. Weiler et al., Certain Rectangular Problems of European integration, Volume 1, European Parliament, Directorate General for Research, Political Series, W-24, European Parliament, Luxembourg (1996), at 14. 225 P. Lindseth, “Democratic legitimacy and the administrative character of supranationalism: the example of the European Community” (1999) 99 Colum. L Rev. 628, at 731ff. 226 Available at: . Accessed 12 January 2009. 227 Available at: . Accessed 12 January 2009. 228 See generally J. Limbach, “Globalization of Constitutional Law through Interactions of Judges” (2008) Verfassung und Recht in Übersee 51, at 52ff; and A. Voβkuhle, “Multilevel Cooperation of the

conclusion305 e. Deliberative Judicial Supranationalism and ECJ References In the absence of a formal EU institutional set-up or common decision (‘deliberative judicial supranationalism’), it will be left to the ECJ to continue renegotiating the subsisting settlement with the superior courts of the Member States. This is based on the provisions of Art. 267 TFEU and its interpretation by the ECJ.229 According to Art. 267(3) TFEU, “a court or tribunal of a Member State, against whose decisions there is no judicial remedy under national law … shall [refer to] the Court of Justice”230 questions concerning the interpretation of a provision of European law. The purpose of Art. 267(3) TFEU according to the ECJ231 is “to prevent a body of national case law not in accord with the rules of Community law from coming into existence in any Member State.” This obligation on courts of last instance is subject to the exceptions set out in the ECJ’s ruling in CILFIT,232 building on previous case-law. CILFIT accordingly sought to achieve a ‘reasonable balance’ between the need to avoid unnecessary references and the need to ensure the uniform application of European law.233 According to CILFIT, a last instance court (e.g., a constitutional court) is not required to make an Art. 267 TFEU reference: (1) where the question of interpretation is irrelevant; (2) where the ECJ has already ruled on the point (acte éclairé);234 or (3) where, in a case, the interpretation of European law is self evident, i.e., the point of law is clear and free from doubt (acte clair). However, the ECJ warned national courts that:235 Before it comes to the conclusion that such is the case, the national court or tribunal must be convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice. Only if those conditions are satisfied, may the national court or tribunal refrain from submitting the question to the Court of Justice and take upon itself the responsibility for resolving it.

This particular latter obligation—exemplifying judicial co-operation—has not been effectively monitored by the ECJ with the result that most constitutional courts have preferred to use the CILFIT exceptions as a means to refuse or avoid

European Constitutional Courts. Der Europäische Verfassungsgerichtsverbund” (2010) 6 EuConst 175, at 196–198. 229 Generally M. Broberg & N. Fenger, Preliminary References to the European Court of Justice, OUP, Oxford (2010). 230 Emphasis supplied. 231 Case 107/76 Hoffmann-La Roche AG v. Centrafarm Vertriebsgesellschaft Pharmazeutischer Erzeugnisse mbH [1977] ECR 957, at para. 5. 232 Case 283/81 CILFIT v. Ministero della Sanità [1982] ECR 3415. 233 Opinion of Tizzano, AG in Case C-99/00 Lyckeskog v. Åklagarkammeren i Uddevalla [2002] ECR I-4839, at para. 56. 234 Joined Cases 28/62 to 30/62 Da Costa en Schaake [1963] ECR 31. 235 Case 283/81 CILFIT v. Ministero della Sanità [1982] ECR 3415, para. 16, at 3430.

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making references to the ECJ, without any explicit mention of other courts’ views. In this respect, Bobek has stated:236 There is no doubt that reference to the decisions of the courts of other Member States interpreting and applying Community law can be a valuable source of inspiration. Moreover, Article 10 EC [now Art. 4(3) TEU] and the duty of sincere and loyal cooperation entail not only a diagonal dimension (Community institutions–Member States) but also a horizontal dimension, which involves the authorities of the Member States, inclusive of courts.

Consequently, references to the decisions of the courts of the other Member States applying EU law would amount to “the advisable use of comparative legal reasoning before national courts.” Nevertheless, Skouris readily acknowledges that the weak point of the preliminary ruling procedure is that:237 “where a national judge does not refer a question, individuals may not bring the matter before the Court.” Bobek has further suggested238 that the ECJ could radically alter its CILFIT judgment and put the cooperation with national courts of last instance (including constitutional courts) on a new, more realistic basis by combining this modified duty to refer with the ECJ’s enforcement of such obligation.239 f. Transjudicial Communication in the Era of Lisbon In any event, with the entry into force of the Lisbon Treaty a quite different situation arises with confirmation—even if only in an annexed Declaration—of European law primacy (and at least accepted by the EU Member States in the Council of Ministers), and the advantages for activist judicial interpretation by the ECJ—if given the opportunity. Certain constitutional courts may therefore wish to avoid presenting the ECJ with opportunities of further eroding their ‘national sovereignty’ in the face of Lisbon-based integration and continue their wellestablished practice of not sending references to the ECJ under Art. 267 TFEU,

236 M. Bobek, “On the Application of European Law in (Not Only) the Courts of the New Member States: ‘Don’t Do as I Say’?” (2007–2008) 10 CYELS 1, at 5. 237 V. Skouris, “Self-Conception, Challenges and Perspectives of the EU Courts,” in Pernice, Kokott & Saunders (2006), 19, at 25–26. 238 M. Bobek, Porušení povinnosti zahájit řízení o předběžné otázce dle článku 234 (3) SES [Violation of the duty to make a preliminary reference under Article 234(3) EC Treaty], (C.H. Beck, Prague, 2004), at 125–128 and at 165. 239 A reconsideration or refinement of CILFIT has been propounded by a number of Advocates General: Opinion of Jacobs, AG in Case C-338/95 Wiener v. Hauptzollamt Emmerich [1997] ECR I-6495, at para. 54; Opinion of Tizzano, AG in Case C-99/00 Lyckeskog v. Åklagarkammeren i Uddevalla [2002] ECR I-4839, at para. 75; Opinion of Stix-Hackl, AG in Case C-495/03 Intermodal Transports BV v. Staatssecretaris van Financiën [2005] ECR I-8151, at paras. 100–104; and Opinion of Ruiz-Jarabo Colomer, AG in Case C-461/03 Gaston Schul Douane-expediteur BV v. Minister van Landbouw, Natuur en Voedselkwaliteit [2005] ECR I-10513, at para. 58 and generally at paras. 49–59.

conclusion307 unless the content of the question to be ruled on falls outside their own understanding of the essential core of national sovereignty.240 According to this scenario, it would be likely that those domestic constitutional courts might at some stage be forced to test to the full the limits to the concept in the Preamble to the Treaty on European Union (post Lisbon) of the Member States “deepening the solidarity between their peoples while respecting their history, their culture and their traditions.” Yet, the strength of transjudicial communication cannot be ignored—indeed the prevention of conflicts through co-operation and interaction both vertical (between ECJ and national courts) and horizontal (between national courts in the EU) is strongly advocated by Albi & Van Elsuwege.241 In fact the signs of this change in the relationships, through vertical and horizontal transjudicial communication, was really heralded by the Austrian Constitutional Court’s references to the ECJ,242 and the German FCC’s human rights decisions in 2000 and 2001243 and taken up by the Italian Constitutional Court244 and Spanish Constitutional Tribunal245 in respect of the EU Charter on Fundamental Rights. The references to the ECJ from the Italian Court246 and the Spanish Tribunal247 where they recently took further steps along the way but this progress seemed to have reached an important juncture (or possibly rather impasse) with the ruling of the FCC

240 As has happened with the Austrian Constitutional Court’s requests, starting with Case C-143/99 Adria-Wien Pipeline GmbH v. Finanzlandesdirektion für Kärnten [2001] ECR I-8365. 241 Albi & Van Elsuwege (2004), at 762. 242 Case C-143/99 Adria-Wien Pipeline GmbH v. Finanzlandesdirektion für Kärnten [2001] ECR I-8365; Joined Cases C-465/00 Rechnungshof v. Österreichischer Rundfunk [2003] ECR-I 4989; and Case C-171/01 Wählergruppe “Gemeinsam Zajedno/Birlikte Alternative und Grüne Gewerkschafter Innen/UG” v. Bundesminister für Wirtschaft und Arbeit [2003] ECR I-4301. 243 Banana Market II, 7 Juni 2000, 2 BvL 1/97: BVerfGE 102, 147; (2000) 21 HRLJ 251; and Rinke, 1 BvR 1036/99, 9 Januar 2001: (2001) 54 NJW 1267. 244 Corte cost. 24 aprile 2002, n. 135; Corte cost. 24 ottobre 2002, n. 445. See F. Astengo, “The Europeanisation of the Italian Constitutional Court” (2004) 26 Journal of European Integration 125, at 134–135. 245 STC n. 290/2000 de 30 de noviembre 2000; STC n. 53/2002 de 27 de febrero 2002. Available at: . Accessed 16 June 2012. 246 Corte cost. Ordinanza No. 102/2008 and Ordinanza No. 103/2008. Available at: . Accessed 17 June 2012. F. Fontanelli & G. Martinico, “Cooperative Antagonists – The Italian Constitutional Court and the Preliminary Reference: Are We Dealing with a Turning Point?,” Eric Stein Working Paper No. 5/2008, Czech Society for European and Comparative Law, Prague (2008). Available at: . Accessed 12 February 2009; M. Dani, “Tracking Judicial Dialogue: The Scope for Preliminary Rulings from the Italian Constitu tional Court” (2009) 16 MJ 149–170. 247 ATC n. 86/2011 de 9 de junio 2011. Available at: . Accessed 15 June 2012. See A. Torres Pérez, “Constitutional Dialogue on the European Arrest Warrant: The Spanish Constitutional Court Knocking on Luxembourg’s Door; Spanish Constitutional Court, Order of 9 June 2011, ATC 86/2011” (2012) 8 EuConst 105–127.

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in Lisbon.248 Nevertheless, the FCC in Honeywell249 and the Polish CT in EU Regulation250 may be moving towards a further accommodation. C. A Controversial Proposal 1. Introduction Within the broader context, the present author has noted, with great interest, the development of constitutional discourse during the period of preparing this work. Recognition of multi-level governance and constitutional pluralism in the EU, and the often-linked discussion on the evolution of sovereignty from being centred on the nation-state to its expression as that of the people, or arguably the peoples, of the Union, dominates current legal literature.251 In many ways, such useful analyses reinforce the non-static nature of sovereignty and confirm this author’s view that the sui generis nature of the EU, and its relations vis-à-vis its constituent units, are still in a process of (re-) negotiation. Indeed it is within the matrix of pluralist European constitutionalism that national constitutional court judges—in being bound to their domestic constitutional oaths and the requirement of Union loyalty—must act. In such way, the political morality of constitutional justices is bound by and limited by the matter of EU constitutionalism and its requirements and this political morality is subject to the increasing integrative impulses in the Union. Yet one matter does concern the present author—that is, the decline in popular participation in elections (whether subnational, national or European parliamentary252) and even in referenda.253 While this trend is more noticeable in some EU Member States than others,254 it could be argued that ‘popularising’ sovereignty is 248 Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267; [2010] 3 CMLR 13, 276. 249 Honeywell, 6 Juli 2010, 2 BvR 2661/06: BVerfGE 126, 286; [2011] 1 CMLR 33, 1067. 250 Dec. SK 45/09, 16 November 2011: OTK ZU 2011/9A, Item 97. 251 B. de Witte, “Sovereignty and European Integration: the Weight of Legal Tradition,” in Slaughter, Sweet Stone & Weiler (1998), at 304; Verhoeven (2002), at 292; Anneli & Van Elsuwege (2004), at 758–759. 252 European Parliament elections, 10–13 June 2004: Overall percentage of eligible voters casting a ballot: 45.7%. For a country-by-country breakdown of the voting numbers, see. Available at: . Accessed 25 June 2006. 253 The referendum held on 12 April 2003 on Hungarian accession to the EU, was approved by 83.76% of votes cast, with a turnout of 45.62%. In Ireland, the Nice Treaty was put to two referenda: (i) the referendum held on 7 June 2001 resulted in a “No” vote of 53.8%, with a turnout of 34.7%; and (ii) at the second referendum, on 19 October 2002, Irish electors approved the Treaty by 62.89% of votes cast, with a turnout of 48.45%. 254 A. Guyomarch, “The June 1999 European Parliament Elections” (2000) 23 West European Politics 161; M. Franklin, “How Structural Factors cause turnout variations at European Parliament Elections” (2001) 2 European Politics 309; and A. Siaroff, “Elections to the European Parliament: Testing Alternative Models of what they indicate in the Member Nations” (2001) 23 JEI/RIE 237.

conclusion309 no more than some covert re-assertion of executive powers—at the subnational, national or European level—at the expense of the parliamentary ones. With the changing role of national and ‘multinational’ parliaments since the latter part of the twentieth century,255 popular sovereignty may be considered as being only one mode of exercising control over the executive, at whatever level. Kumm & Comella identified—in their study on the EU Constitutional Treaty— the continuing problem of the democratic deficit and its destabilising effect on legitimacy: as with the Constitutional Treaty, the Lisbon Treaty also does at least partially try to address this problem in the field of constitutional matters and national sovereignty by allowing, under Lisbon Treaty, Protocol A.2,256 for a process by which national parliaments may challenge the validity of European law. Such indirect democratic participation in the law-making process appears to be cumbersome in its operation and hardly appears to encourage its frequent use. While not seeking to detract from the many learned writings in this area, this writer considers that a more ‘rights-based’ approach could add a further, positive dimension to the European constitutional discourse and provide for a more direct participation of citizens in the continuing constitutional dialogue: such approach will now be explained. In a way, this proposal will ‘call the bluff’ of the FCC in the Lisbon case. Having basically called on its own legislature to provide new proceedings of ultra vires review and identity review to rule on the progress or otherwise of European integration,257 this proposal aims to put in more concrete and realistic form (though perhaps patently provocative) the FCC’s call for a ‘Kooperationsverhältnis’ in the Maastricht case258 and for openness to European law (‘Europarechtsfreundlichkeit’) from the Lisbon ruling,259 thereby following the earlier established case-law of the Polish CT.260

255 A.F. Tatham, “The articulation of different parliaments, their Inter-institutional relations in complex political unions: European Union, United States, Mercosur and the Russian Federation” (1998) 18 PER 143, at 203–208; P. Norton, Parliament in the 1980s, Blackwell, Oxford (1985). 256 TEU, TFEU and EAEC, Protocol (No. 2) on the Application of the Principles of Subsidiarity and Proportionality, Art. 8 (2007 OJ C306/150): “The Court of Justice of the European Union shall have jurisdiction in actions on grounds of infringement of the principle of subsidiarity by a European legislative act, brought in accordance with the rules laid down in Article 230 of the Treaty on the Functioning of the European Union by Member States, or notified by them in accordance with their legal order on behalf of their national Parliament or a chamber thereof.” 257 Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267, at 353–355; [2010] 3 CMLR 13, 276, at 337–338. 258 Maastricht, 12 Oktober 1993, 2 BvR 2134 und 2159/92: BVerfGE 89, 155, at 178; [1994] 1 CMLR 57, at 81–82. 259 Lisbon, 30 Juni 2009, 2 BvE 2/08 and 5/08, and 2 BvR 1010/08, 1022/08, 1259/08 and 182/09: BVerfGE 123, 267, at 346–347 and 353–354; [2010] 3 CMLR 13, 276, paras. 333 and 337–338. 260 Dec. K 11/03, 27 May 2003: OTK ZU 2003/5A, Item 43; Dec. K 33/03, 21 April 2004: OTK ZU 2004/4A, Item 31.

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a. Background One of the main motors for the ECJ, in creating the constitutional architecture of the Union, was the use it made of the preliminary reference procedure. As such, Art. 267 TFEU is the most important procedural rule of the Treaty: it facilitates, inter alia, access to justice by making it clear that European law is to be applied not only by the ECJ but also by national courts,261 thereby enabling citizens to enforce their EU rights in national jurisdictions.262 The reference procedure thus also facilitates dialogue between the national courts and the ECJ. This judicial dialogue, somewhat favoured in the ECJ-lower national court relationship, allowed the ECJ great leeway in moulding the Union and its essential principles such as European law supremacy and direct effect. In talking of the spirit of the Art. 267 TFEU reference procedure, Pescatore observed263 that such procedure was based on a division of tasks between the national court and the ECJ, on a partnership established between them in the discharge of a function which was in the common interest, namely the proper application of EU law throughout the Union: Without establishing any hierarchy between the national courts and the Court of Justice, this procedure makes it possible, by the interaction of question and answer, to guarantee the uniformity of [EU] law throughout the [Union] as regards its interpretation and the appraisal of the questions of validity which may arise in its application. The Court has always endeavoured to ensure that this dialogue can be undertaken and pursued in a spirit of cooperation, this being possible only if the cooperation is mutual.

In other words, if the national court on the one hand and the ECJ on the other are aware of their respective functions in the accomplishment of a task which is in the common interest of the EU as a whole. This spirit of co-operation can only exist if both sides respect the jurisdiction of the other. A few national constitutional courts, however, have actually entered that dialogue directly,264 but certainly not so far the German, Hungarian or Polish tribunals. 261 The European vocation of national courts has recently been affirmed by the ECJ in Opinion 1/09 Re Draft Agreement on the European and Community Patents Court [2011] ECR I, nyr, at para. 66: “As is evident from Article 19(1) TEU, the guardians of that [EU] legal order and the judicial system of the European Union are the Court of Justice and the courts and tribunals of the Member States.” For a discussion, see R. Baratta, “National Courts as ‘Guardians’ and ‘Ordinary Courts’ of EU Law: Opinion 1/09 of the ECJ” (2011) 38 LIEI 297, at 303–310. 262 G. Tridimas & T. Tridimas, “National courts and the European Court of Justice: A public choice analysis of the preliminary ruling procedure” (2004) 24 Intl Rev. L & Econ. 125, at 126–127. 263 P. Pescatore, References for Preliminary Rulings under Article 177 of the EEC Treaty and Co-operation between the Court and National Courts, Court of Justice, Luxembourg (1986), at 10–11. 264 These courts are (i) the Austrian Constitutional Court: Case C-143/99 Adria-Wien Pipeline GmbH v. Finanzlandesdirektion für Kärnten [2001] ECR I-8365; Joined Cases C-465/00 Rechnungshof v. Österreichischer Rundfunk [2003] ECR-I 4989; and Case C-171/01 Wählergruppe “Gemeinsam Zajedno/Birlikte Alternative und Grüne GewerkschafterInnen/UG” v. Bundesminister für Wirtschaft

conclusion311 If popular sovereignty is being denuded either due to encroaching executive powers or due to lack of legitimacy through decreasing electoral participation, the possible concept underlying this work is the ‘resort to court.’ Kumm & Comella had earlier articulated a convincing interpretation of the EU Constitutional Treaty to allow for more and better focussed ‘transjudicial dialogue’ while allowing national constitutional courts to ‘opt out’ of ECJ rulings/European law, injurious to specific and clear national constitutional principles. While these commentators discussed rapprochement between the ECJ and domestic constitutional courts in a ‘European constitutional order’ and offered guidance as to the conduit between these courts, nevertheless they missed the point of how to evolve this ‘transjudicial dialogue,’ ‘deliberative judicial supranationalism’ or ‘relationship of co-operation.’ b. Stakeholder Participation Although extremely radical, might it be possible to open up the discourse at the national level and the European level, through court action? The Lisbon Treaty is not the end station, the continued evolution of the Union based on the rule of law, democracy, and protection of fundamental rights—at European and national level—will need to be further negotiated. Even the ECJ, as Weiler notes,265 although it has repeatedly stated that European citizenship is destined to become the fundamental status of the Union’s individual members, “has steadfastly limited its jurisprudence to the realm of free movement and to an apolitical concept of citizens. There is much scope for a new essential jurisprudence in this area.” For citizens of EU Member States, periodic parliamentary elections and occasional referenda are unable to fill the lacunae adequately. Could not an opening up of the European constitutional order to litigation—in the same way as the Art. 267 TFEU reference procedure has achieved—at the national and supranational levels actually provoke the negotiations where EU citizens could exercise more control over or more participation in providing input into these negotiations?

und Arbeit [2003] ECR I-4301; (ii) the Belgian Constitutional Court: Case C-303/05 Advocaten voor de Wereld VZW v. Leden van de Ministerraad [2007] ECR I-3633; Case C-305/05 Ordre des barreaux francophones and germanophone v. Conseil des Ministres [2007] ECR I-5305; Case C-212/06 Government of the French Community and Walloon Government v. Flemish Government [2008] ECR I-1683; Case C-73/08 Bressol v. Gouvernement de la Communauté française [2010] ECR I-2735; and Case C-306/09 I.B. [2010] ECR I-10341; (iii) the Italian Constitutional Court: Case C-169/08 Presidente del Consiglio dei Ministri v. Regione Sardegna [2009] ECR I-10821; (iv) the Lithuanian Constitutional Court: Case C-239/07 Sabatauskas [2008] ECR I-7523; and (v) the Spanish Constitutional Tribunal: Case C-399/11 Melloni, nyr. See G. Martinico, “Preliminary Reference and Constitutional Courts. Are You in the Mood for Dialogue?,” in F. Fontanelli et al. (eds.), Shaping Rule of Law through Dialogue, Europa Law Publishing, Groningen (2010), 221, at 224–227. 265 Weiler (2006), at 127.

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Choudhry has articulated the notion266 of migration of constitutional ideas and has argued that these migrations do not necessarily mean a one-way traffic from West to East. His reasoning is one with which the present author agrees and identifies the proposal set out below with Choudhry’s philosophy on championing migration from ‘East’ to West. The proposal is admittedly radical and invests EU citizens, national constitutional courts and the ECJ with greater degrees of responsibility in the discourse on the continued evolution of the concept of sovereignty at both national and European levels. Unlike the HCC before 2012, the jurisdiction of neither the FCC nor the CT included the possibility of an actio popularis.267 Yet in all these states, the understanding of the ‘essential core of sovereignty’ or ‘constitutional identity’—to which Dashwood referred as the “conservatory elements of statehood”268—has come from national constitutional court case decisions on the application of the rule of law, democracy, separation of powers or fundamental human rights to concrete cases (usually on reference from an ordinary court) or on the limitations to the transfer of the exercise of national powers to the EU in these areas. Could not the broadening of standing at the national level before the domestic constitutional court, beyond either ordinary judges or specific political actors to include parties in the case before the ordinary court or— more controversially—any EU citizen domiciled in that particular Member State, open up a discourse beyond those of national executives and parliaments? Might this reinforce the evolution of the very nature of popular sovereignty for the twenty-first century? Needless to say, unless some limits are imposed, the use of judicial means to ‘court’ constitutional dialogue between European and national constitutional judges could easily overload the system and create insupportable delays in proceedings. The technology definitely exists to allow for this expansion of court activity but adaptation of present procedures and sufficient skilled staff would be necessary: the costs would, however, be much less than those entailed in the setting up of a new institution. 3. The Actio Popularis Europae a. Basis and Context of the Idea In considering the present idea, the preservation of the unique role that the Art. 267 TFEU reference procedure plays in the Union legal order is acknowledged as paramount. Already in Opinion 1/09,269 the ECJ was at pains to conserve the 266 S. Choudhry, “Migration as a new metaphor in comparative constitutional law,” in S. Choudhry (ed.), The Migration of Constitutional Ideas, CUP, Cambridge (2007), chap. 1, 1, at 12. 267 See above at Chapter Four, point A.2. 268 Dashwood (1998), at 201–202. 269 Opinion 1/09, Re Draft Agreement on the European and Community Patents Court [2011] ECR I, nyr.

conclusion313 structural characteristics of the reference in the face of perceived challenges to this procedure by the draft Agreement on the European and Community Patents Court. However, Opinion 1/09 itself constitutes a warning in respect of the negotiation of yet another international agreement which will impinge on the ECJ, viz., the jurisdictional mechanisms to be included in the eventual agreement concerning EU accession to the ECHR.270 In other words, Opinion 1/09 clearly reminds the negotiators of such agreement that accession cannot, in effect, deprive the ECJ of its exclusive competence to pronounce on the conformity of an EU legal rule with fundamental rights, before even the ECtHR has ruled on the compatibility of that EU rule with the ECHR:271 the Art. 267 TFEU reference procedure might therefore be regarded as an integral part of the EU’s constitutional identity. Nevertheless, the drafting of the jurisdictional mechanisms between the ECJ and ECtHR do highlight problems that are also present in the current proposal and have formed part of the backdrop to it. Thus, in order to balance the need to ensure the jurisdictional (and procedural) independence and integrity of both the ECJ and ECtHR with the aim of enhancing judicial co-operation or dialogue in Europe272—at least within the field of human rights protection—detailed proposals have been made to address in particular the situation where an application is made against acts adopted by authorities in EU Member States to apply or implement EU law.273 Yet, despite the objective of increasing the effectiveness of human rights protection in the EU law area, the resulting complexity in procedural terms may actually deter litigation rather than encourage it, especially in the context of the exceptionally heavy case-load of the ECtHR.274 Such proposals do, though, represent a serious attempt to marry the nature of the preliminary reference procedure of the ECJ275 with the mechanism 270 See Art. 6(2) TEU and Art. 59(2) ECHR, as amended. For a wide-ranging discussion on the complexities of future EU accession to the ECHR, see T. Lock, “Walking on a tightrope: the draft ECHR Accession Agreement and the autonomy of the EU legal order” (2011) 48 CML Rev. 1025–1054. 271 S. Adams, “Le mécanisme prejudiciel, limite fonctionnelle à la compétence externe de l’Union. Note sur l’avis 1/09 de la Cour de justice” (2011) 47 CDE 277, at 298–299. 272 On cementing this judicial dialogue and institutional mutual respect after EU accession to the ECHR, see European Court of Human Rights and European Court of Justice, Joint Communication from Presidents Costa and Skouris, ECtHR and ECJ, Strasbourg and Luxembourg, 24 January 2011. Available at: . Accessed 26 September 2012. 273 T. Lock, “End of an Epic? The Draft Agreement on the EU’s Accession to the ECHR” (2012) 31 YBEL, forthcoming. Available for download at. Available at: . Accessed 24 September 2012. 274 X. Groussot, T. Lock & L. Pech, “EU Accession to the European Convention on Human Rights: a Legal Assessment of the Draft Accession Agreement of 14th October 2011,” Fondation Robert Schuman Policy Papers, European Issues No. 218, 7 November 2011, Fondation Robert Schuman, Paris, at 11 and 14. Available at: . Accessed 29 January 2012. 275 On the preservation of the Art. 267 TFEU reference procedure, see European Court of Justice, Discussion document of the Court of Justice of the European Union on certain aspects of the accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental

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of the ECtHR,276 replacing a system currently based on judicial co-operation established through ECJ and ECtHR case-law and practice with one founded on procedural rules agreed to by all contracting parties to the ECHR and by the EU and its Member States. As a result, it was vital to the success of the present proposal to preserve the Art. 267 TFEU procedure and provide procedural rules that encourage and facilitate dialogue between the ECJ and national constitutional courts without the burden of inter-institutional procedural complexity and the threat of undue delays in its realisation. Accordingly, by putting together several ideas previously proposed,277 it has been possible to design a national-level actio popularis europae (in the spirit of the erstwhile Hungarian actio),278 a constitutional reference which could eventually be sent to the ECJ. The use of this procedure would be available to natural and legal persons in EU Member States to raise a claim directly before their constitutional court on an issue of European law on the grounds that an essential element of national sovereignty was being impinged upon by an EU legal provision.279 Implicit in this proposal is the need to amend the TFEU provisions dealing with the reference procedure; such need follows from the ECJ’s own perception of Art. 267 proceedings. In UPA,280 it emphasised the importance of the procedure for the Union’s “complete system of legal remedies” and, in Melki,281 it ruled that a

Freedoms, 5 May 2010, ECJ, Luxembourg, at 4–5. Available at: . Accessed 20 August 2012. 276 Generally, C. Timmermans, “The Relationship between the European Court of Justice and the European Court of Human Rights,” in A. Arnull, C. Barnard, M. Dougan & E. Spaventa (eds.), A Constitutional Order of States? Essays in EU Law in Honour of Alan Dashwood, Hart Publishing, Oxford and Portland (OR) (2011), chap. 8, 151, at 155–159. 277 European Court of Justice & Court of First Instance, The future of the judicial system of the Union, Discussion Paper presented to the Council of the Ministers of Justice, May 1999. Available at: . Accessed 15 April 2000. Bobek calls for a new type of appeal to be introduced – his so-called “complaint of breach of Community law” – which would enable appeals against decisions of national courts of last instance to EU courts: Bobek (2004), at 166. 278 See above at Chapter Four, point A.2. Now abolished by Act CLI of 2011 on the Constitutional Court. 279 In a similar vein, use of the FCC’s Solange doctrine has inspired a group of academics to argue that, outside the scope of application of the EU Charter on Fundamental Rights, a Union citizen could not rely on EU fundamental rights as long as it could be presumed that the essence was safeguarded in the Member State concerned. If such presumption were to be rebutted, then the ‘substance’ of EU citizenship would come into play: A. von Bogdandy et al., “Reverse Solange – Protecting the essence of fundamental rights against EU Member States” (2012) 49 CML Rev. 489, at 508–518. 280 C-50/00 P Unión de Pequeños Agricultores v. Council [2002] ECR I-6677, at para. 62. 281 Joined Cases C-188/10 and C-189/10 Proceedings against Melki and Abdeli [2010] ECR I-5667, at para. 51.

conclusion315 provision of national constitutional law was not able to “undermine the essential characteristics of the system of cooperation between the Court of Justice and the national courts, established by Article 267 TFEU.” Moreover, in Opinion 1/09,282 the ECJ expressly considered this ‘complete system’ as being protected by the autonomy of the Union legal order283 with the result that it may only be altered by a Treaty amendment.284 How could the Treaty basis be formulated either as an amendment to Art. 267 TFEU or as a totally new provision? Such provision might be worded as follows: (1) Where the court or tribunal of a Member State against whose decision there is no judicial remedy under national law is a constitutional court or a supreme court or chamber thereof exercising final constitutional jurisdiction in that Member State, any natural or legal person in proceedings before such court or tribunal, either directly or indirectly as a party to a case referred from another court, may request a European constitutional reference to the Court where such person claims infringement, actually or potentially, by EU law of the constitutional identity of that Member State. (2) The conditions for the exercise and use of the procedure for a European constitutional reference shall be set down in the Statute and Rules of Procedure of the Court of Justice of the European Union.

Naturally, the present author is no legislative draftsman but the suggested wording above might at least encourage further discourse as to how such a provision might be formulated in the TFEU. The introduction of the European constitutional review would clearly also necessitate amendments to both the Statute of the Court of Justice of the European Union (Protocol (No. 3) to the TEU, TFEU and EAEC) as well as to the Rules of Procedure of the Court of Justice. Changes to the Statute would need to be secured by the ordinary legislative procedure285 and for the Rules of Procedure by the Court of Justice with the approval of the Council.286 While not proposing the wording of such amendments, the discussion below highlights some of the issues that would need to be considered.

282 Opinion 1/09, Re Draft Agreement on the European and Community Patents Court [2011] ECR I, nyr, at para. 70. 283 T. Lock, “Taking National Courts More Seriously? Comment on Opinion 1/09” (2011) 36 EL Rev. 576, at 581. 284 In either case, the ordinary revision procedure to amend the Treaties under Art. 48(2)-(5) TEU would need to be employed. See M. Dougan, “The Treaty of Lisbon 2007: Winning Minds, Not Hearts” (2008) 45 CML Rev. 617, at 689–690. 285 Under Art. 281 TFEU, the Statute has the legal status of a Protocol to the Treaties and is therefore part of EU primary law; amendments to the Statute (except Title I and Art. 64) can be amended by the ordinary legislative procedure: see generally R. Barents, “The Court of Justice after the Lisbon Treaty” (2010) 47 CML Rev. 709, at 711. 286 Art. 254 TFEU.

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b. Prior Filtering Out—And a Green Light This national actio popularis europae would be subject to a filtering exercise287 before the national constitutional court to ensure that the expedited ‘constitutional reference’ is appropriate in the case. In the context of Art. 267 TFEU (ex-Art. 234 EC) references, Jacobs AG in Wiener288 noted that: “a reference will be most appropriate where the question is one of general importance and where the ruling is likely to promote the uniform application of the law throughout the European Union.” In filtering these national petitions (and so encouraging national constitutional courts to take responsibility in making references), what criteria are there to assist such determination? The ECJ, in respect of Art. 267 TFEU references, has itself rejected such references if the questions posed are inadequate,289 or are clear (acte clair) or have already been clarified (acte éclairé)290 while Jacobs AG suggested again in Wiener291 that a reference would not be appropriate—“where there is an established body of case law which could readily be transposed to the facts of the instant case; or where the question turns on a narrow point considered in the light of a very specific set of facts and the ruling is unlikely to have any application beyond the instant case.”292 In such circumstances, the constitutional court could refuse to make a reference and decide the matter for itself. Moreover, if the constitutional court considers that no issue concerning the essential core of national sovereignty is raised in the petition, then it would reject the petition. Nevertheless, following Bobek,293 it would be necessary—in the absence of Treaty changes—for the ECJ to revise its CILFIT criteria so as to ‘encourage’ the making of these types of references. Might it be possible to note that where a provision of European law has a ‘sufficiently serious’ impact on national constitutional law, the constitutional court should refer? ‘Sufficiently serious’ would, of course, be subject to interpretation by the

287 On the issue of filtering and the green light, see e.g., House of Lords, European Union Committee, Law and Institutions (Sub-Committee E), “Workload of the Court of Justice of the European Union,” EU 14th Report, Session 2010–2011, HL Paper 128, 6 April 2011, chap. 6, at paras. 106–111. Available at: . Accessed 6 September 2012. 288 Case C-338/95 Wiener v. Hauptzollamt Emmerich [1997] ECR I-6495, at 6502. See K. Lenaerts, “The Unity of European Law and the Overload of the ECJ – The System of Preliminary Rulings Revisited,” in Pernice, Kokott & Saunders (2006), 211, at 219–220; and C. Timmermans, “The European Union’s Judicial System” (2004) 41 CML Rev. 393, at 402–403. 289 Joined Cases C-320/90 to C-322/90 Telemarsicabruzzo SpA v. Circostel [1993] ECR I-393. 290 Case 283/81 CILFIT v. Ministero della Sanità [1982] ECR 3415. 291 Case C-338/95 Wiener v. Hauptzollamt Emmerich [1997] ECR I-6495, at 6502. 292 Jacobs AG continued ([1997] ECR I-6495, at 6503) that if a reference were still made in such a case, the ECJ should do no more than call the national court’s attention to the previous body of law and leave it to the national court to decide the issue raised. 293 Bobek (2004), at 125–128 and at 165.

conclusion317 ECJ in order to guide constitutional courts. Such amendment of CILFIT might be accompanied by development or revision of the Köbler294 case-law so as to provide a real and effective remedy against refusals to refer which the ECJ could properly monitor. Where, on the contrary, the constitutional court accepts that a national sovereignty point is raised, it would be required to hear oral argument on the matter before it. Following such argument, an expedited reference295 (suitably adapted) would then be made.296 In order to ensure a proper judicial dialogue, the referring constitutional court would need to provide all the information that the ECJ would need to take into account in its ruling.297 The preliminary questions would therefore need to be formulated in such a way as to allow the ECJ to grasp fully the essence of the question to which the referring court needs an answer in order to be able to render judgment. The referring court would also have to explain the nature and importance of the national constitutional traditions which were at stake, in order to make the ECJ aware of the sensitivity of the question referred. For its part, the referring national constitutional court would also be required to attach to the reference its own suggested answer to the petition as happens in Germany, where a reference from a lower court to the FCC is accompanied by the lower court’s own proposed answer to the question referred.298 This option—in the context of European law—is known as the ‘green light’ procedure, according to which national courts would be encouraged (though not obliged) when making an Art. 267 TFEU reference to include their own proposals for the answer to be given. The ECJ would then be able to dispose of the case by giving the ‘green light’ to such national judicial proposals.299 Such procedure “would seem to be in keeping with the design of the preliminary ruling procedure as a dialogue between courts. The national courts, on their part, would be inspired

294 Case C-224/01 Köbler v. Austria [2003] ECR I-10239. 295 On the basis of the Statute of the CJEU (OJ 2010 C83/210), the Rules of Procedure of the Court of Justice, Art. 62a, enable the President of the Court to decide that “that a case is to be determined pursuant to an expedited procedure derogating from the provisions of these Rules, where the particular urgency of the case requires the Court to give its ruling with the minimum of delay.” 296 Unless dealing with a matter of exceptional urgency, it is not considered that the accelerated procedure (available under the Statute of the CJEU, Art. 23(a) and the Rules of Procedure of the Court of Justice, Arts. 104a and 104b) would be a suitable model in this case. 297 E. Cloots, “Germs of Pluralism Judicial Adjudication: Advocaten voor de Wereld and Other References from the Belgian Constitutional Court” (2010) 47 CML Rev. 645, at 669. 298 S. Michalowski & L. Woods, German Constitutional Law – the protection of civil liberties, Ashgate/Dartmouth, Aldershot (1999), at 40–41. 299 P. Van Dijk (chmn.), “Report of the working group on the preliminary rulings procedure,” Association of the Councils of State and Supreme Administrative Jurisdictions of the European Union and Network of the Presidents of the Supreme Judicial Courts of the European Union, The Hague (2007), at 8. Available at: . Accessed 14 October 2008.

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to play a greater role.”300 This proposal has also been proffered in the Discussion Paper of the ECJ301 as well as in the Due Report.302 In a milder form, the green light procedure is already allowed to national courts by the ECJ. First, under the Rules of Procedure of the Court of Justice,303 Art. 104b(1) governing the use of the urgent preliminary ruling procedure in the area of freedom, security and justice, provides: “The national court or tribunal … shall, in so far as possible, indicate the answer it proposes to the questions referred.” While, secondly, in its guidance for Art. 267 TFEU (ex-Art. 234 EC) references, the ECJ suggests in general that:304 “the referring court may, if it considers itself to be in a position to do so, briefly state its view on the answer to be given to the questions referred for a preliminary ruling.” Such reasoned answer by the referring constitutional court has a further importance—were the ECJ to decline the reference, the national constitutional court’s answer would become a final judgment after the lapse of a few months’ limitation period. This ‘judgment nisi’ solution,305 provided the limitation period was on a uniform EU-wide basis in order to give the ECJ sufficient time to assess the constitutional reference, would reduce the delays now experienced in the current Art. 267 TFEU proceedings. It would have the utility of becoming a final decision either on express rejection of the petition by the ECJ or after the end of the limitation period, and in this way add to the corpus of decisions helping to determine the contours of the essential core of national sovereignty or national constitutional identity throughout the Union. This would amount to another national-level contribution to the process of transjudicial communication and judicial constitutional dialoguing in the EU. As Poiares Maduro has argued,306 national decisions on European law ought not to be seen as separated national interpretations and applications of that law but rather as decisions to be integrated into a system of law requiring compatibility and coherence. In this sense, such national decisions would be apt to enter into the deliberations of fellow constitutional courts judges,

300 Ibid., at 8. 301 European Court of Justice & Court of First Instance, The future of the judicial system of the Union, Discussion Paper presented to the Council of the Ministers of Justice, May 1999, Chapter IV, 3(ii), at 24. Available at: . Accessed 14 October 2008. 302 O. Due (chmn.), “Report by the Working Party on the Future of the European Communities’ Court System” (‘Due Report’), 19 January 2000, Part II A, 2c. Available at: . Accessed 14 October 2008. 303 Court of Justice, Rules of Procedure of the Court of Justice: OJ 2010 C177/01. 304 Court of Justice, “Information Note on references from national courts for a preliminary ruling”: OJ 2005 C143/01, para. 23. 305 Dashwood & Johnston (2001), at 68–69. 306 M. Poiares Maduro, “Europe and the Constitution: What if this is As Good As It Gets?” 2005/5 Webpapers on Constitutionalism & Governance beyond the State, Department of European Studies and Modern Languages, University of Bath (2005), at 24. Available at: . Accessed 9 April 2009.

conclusion319 through the process of transjudicial communication or migration of constitutional ideas, a point again further supported by Poiares Maduro when he states:307 If a national constitutional court is aware that the decision that it will take becomes part of European law as interpreted by the “community” of national courts, it will internalise in its decisions the consequences in future cases and the system as a whole. This will prevent national courts from using the autonomy of their legal system as a form of evasion and free-riding and will engage the different national courts and the ECJ in a true discourse and coherent construction of the EU pluralist legal order.

At the same time, he argues, it would be necessary to improve European legal pluralism by raising in each legal order the awareness of the constitutional boundaries of the other legal orders. Koutrakos underlined the point,308 when discussing the urgent preliminary review procedure, that judges had to be given time to reflect on the questions put before them, to assess the arguments of a number of actors interested in the answers, and to consider the wider ramifications of their conclusions. Such behaviour, he noted,309 was “an essential prerequisite for the proper administration of justice which [was] all the more significant in the context of a multilayered and decentralised judicial system set out under EU law.” c. Before the ECJ (i) Unique Written Procedure Where however the ECJ accepts the constitutional reference, then it is proposed to have only a written procedure before the Court. This is inspired by the precedent under former Art. 68(3) EC in relation to visa, immigration and asylum policy, whereby the former Art. 109a of the Rules of Procedure of the Court of Justice (both provisions have now been repealed by the Lisbon Treaty) which provided for a completely written procedure.310 In order to ensure the broadest available basis for rendering the ECJ ruling, an Opinion by an Advocate General would be prepared with an express requirement that they should produce a comparative analysis of the point raised in the constitutional reference in all EU Member States. In order to render the procedure less cumbersome, the ECJ would accordingly be permitted to deliver a reasoned ruling without the need for oral argument.

307 Ibid., at 24. 308 P. Koutrakos, “Speeding up the preliminary reference procedure – fast but not too fast” (2008) 33 EL Rev. 617, at 618. 309 Ibid., at 618. 310 Except where a Member State or EU institution requested otherwise under former Rules of Procedure of the ECJ, Art. 109a(3) (again repealed by the Lisbon Treaty).

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Member State governments and EU institutions would retain the right to intervene in proceedings but only in written form and within set temporal parameters. Due to the written nature of this constitutional reference procedure, it would therefore be essential to ensure that oral pleadings must take place before the national constitutional court. (ii) Garnering Legitimacy and Co-operation The responsibility for a reasoned ruling of the ECJ on a constitutional reference could not be devolved to a chamber of the Court: since the greatest amount of legitimacy would be needed to have the ruling accepted by all national constitutional courts, only the full Court (or possibly a Grand Chamber)311 would retain the power to make the ruling on a constitutional reference. Moreover,312 pluralist decision-making requires the ECJ to show respect for national constitutional traditions, especially when the referring constitutional court has stressed their importance in its reference. As Cloots observed:313 “Only by showing that making a preliminary reference does not equal loss of fundamental rights protection and national identity, can the ECJ ease the fear many constitutional courts have of entering judicial dialogue and, hence, of making constitutional pluralism true in practice.” Under present rules, creation of a constitutional reference procedure, based on either a revision of Art. 267 TFEU or a new Treaty Article, and new Articles in the Statute and the Rules of Procedure of the CJEU, would still need the agreement of all EU Member States.314 How much better it would be, to maintain and enhance the co-operative relationship, to allow the ECJ to negotiate with national constitutional and supreme courts to agree the constitutional reference procedure—while still allowing the European Parliament and the Council of Ministers the power to enact such measures (but through a qualified-majority vote). Any new procedure would have procedural and substantive repercussions at the national level. For some courts and institutions, changes would need to be

311 TEU, TFEU and EAEC, Protocol (No. 3) on the Statute of the Court of Justice of the European Union, Art. 16: OJ 2010 C83/210. 312 Cloots (2010), at 670–671. 313 Ibid., at 670. 314 Revision of TFEU or new TFEU Article: Art. 48(2)-(5) TEU; amendments to the Statute of the Court of Justice, Protocol (No. 3) to TEU, TFEU and EAEC: Art. 281 TFEU. Under TFEU Art. 281, the ordinary legislative procedure is applicable and, generally speaking, unanimity is no longer required in the Council of Ministers. There have been proposals that, like the ECtHR, the ECJ should be able to decide its own Rules of Procedure: see, e.g., P. Van Dijk (chmn.), “Report of the working group on the preliminary rulings procedure,” Association of the Councils of State and Supreme Administrative Jurisdictions of the European Union and Network of the Presidents of the Supreme Judicial Courts of the European Union, The Hague (2007), at 6. Available at: . Accessed 14 October 2008.

conclusion321 made to their jurisdictional rules to allow (or even promote) references to the ECJ. And there still remains the need to address the constant problem of national superior (constitutional) courts refusing to make references to the ECJ or avoiding them.315 4. Establishment of the Principle of Lawful Judge by the ECJ a. ‘Plan B’—A Weaker Form of Judicial Co-operation In order to ensure the judicial discourse/negotiation is truly developed, reluctance on the part of national constitutional courts to refer to the ECJ might have to be rectified by a new procedural instrument—like the one discussed above—well beyond the terms of the Lisbon Treaty. Nevertheless, if this proposed ‘Plan A’ were not to be considered, could the ECJ of its own volition compose and execute a ‘Plan B’? Perhaps the ECJ could reexamine or examine more deeply its already existing case-law for inspiration. In this sense, one might be able to argue for a combination of the development of the Köbler jurisprudence with recognition of another fundamental rights principle, viz. that of the lawful judge. b. Köbler On the one hand, the limits of the Köbler316 decision still need to be explored by the ECJ and national courts: this ruling317 decided that the principle, that Member States were obliged to make good damage caused to individuals by infringements of European law for which they were responsible, was also applicable where the alleged infringement stemmed from a decision of a court adjudicating at last instance where the rule of European law infringed was intended to confer rights on individuals, the breach was sufficiently serious and there was a direct causal link between that breach and the loss or damage sustained by the injured parties.318 In particular the ECJ stated that:319

315 Komárek (2005) 42 CML Rev. 9, at 10; D. Anderson & M. Demetriou, References to the European Court, 2nd ed., Sweet & Maxwell, London (2002), at 177–180. 316 Case C-224/01 Köbler v. Austria [2003] ECR-I 10239. 317 A. Botella, “La responsabilité du juge nationale” 2004 RTDE 40; G. Anagnostaras, “The Principle of State Liability for Judicial Breaches: The Impact of EC Law” (2001) 7 EPL 290; P. Wattel, “Köbler, Cilfit and Welthgrove: We can’t go on meeting like this” (2004) 41 CML Rev. 177; M. Breuer, “State liability for judicial wrongs and Community law: the case of Gerhard Köbler v Austria,” (2004) 29 EL Rev. 243. 318 Basically repeating its previous formula adopted in Joined Cases C-46/93 and C-48/93 Brasserie de Pêcheur SA v. Germany [1996] ECR I-1029. J. Steiner, “The limits of State Liability for Breach of European Community Law” (1998) 4 EPL 69; P. Craig, “Once more unto the breach: the Community, the state and damages liability” (1997) 113 LQR 67. 319 Case C-224/01 Köbler v. Austria [2003] ECR I-10239, at paras. 54–56.

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chapter six In order to determine whether that condition is satisfied [that the breach of EC law was sufficiently serious], the national court hearing a claim for reparation must take account of all the factors which characterise the situation put before it. Those factors include, in particular, the degree of clarity and precision of the rule infringed, whether the infringement was intentional, whether the error of law was excusable or inexcusable, the position taken, where applicable, by a Community institution and non-compliance by the court in question with its obligation to make a reference for a preliminary ruling under the third paragraph of Article 234 EC. In any event, an infringement of Community law will be sufficiently serious where the decision concerned was made in manifest breach of the case-law of the Court in the matter (see to that effect Brasserie du Pêcheur and Factortame…). [Emphasis supplied.]

Köbler, subsequently confirmed in Traghetti del Mediterraneo,320 could arguably prove to be a stimulus for more (constitutional) references to the ECJ since it would be economically more efficient to make a reference to the ECJ than subsequently to be held to have failed to apply EU law correctly and have the judicial administration be subject to a damages claim. However, such a claim is notoriously difficult to prove.321 As the ECJ stated in Traghetti:322 “state liability in such a case is not unlimited. [It] can be incurred only in the exceptional case where the national court … has manifestly infringed the applicable law.” Thus, Lock notes323 that the mere fact that a national court has violated its obligation under Art. 267 TFEU would not in itself constitute a sufficiently serious breach. Rather, there would also have to be a manifest misapplication of EU law by that court.324 This shows that enforcement of the duty to make a reference is not only very unlikely, but also of limited effect.325 In fact, the ruling in Köbler has not been universally welcomed. Komárek326 considered that by permitting claimants to sue Member States for judicial breaches committed vis-à-vis European law by national court partners to the ECJ in its judicial dialogue, the whole idea of the co-operation relationship might be damaged. Wattel327 regarded Köbler as “a source of legal uncertainty, procedural entanglements and even more arrears in the decisions of cases.” Cartabia was even more strident when she concluded:328 “The evolution of State liability as exemplified in 320 Case C-173/03 Traghetti del Mediterraneo SpA v. Italy [2006] ECR I-5177. For a critique, see M. Ruffert, “Case C-173/03, Traghetti del Mediterraneo SpA in Liquidation v. Italian Republic, Judgment of the Court (Great Chamber) of 13 June 2006, nyr” (2007) 44 CML Rev. 479–486. 321 Lock (2011), at 584. 322 Case C-173/03 Traghetti del Mediterraneo SpA v. Italy [2006] ECR I-5177, at para. 32. 323 Lock (2011), at 584. 324 J. Kokott, T. Henze & C. Sobotta, “Die Pflicht zur Vorlage an den Europäischen Gerichtshof und die Folgen ihrer Verletzung” (2006) 61 JZ 633, at 637. 325 Lock (2011), at 584. 326 Komárek (2005), at 22. 327 Wattel (2004), at 179. 328 M. Cartabia, “Taking Dialogue Seriously’ The Renewed Need for a Judicial Dialogue at the Time of Constitutional Activism in the European Union,” Jean Monnet Working Paper No. 12/07, at 33.

conclusion323 the decisions Köbler and Traghetti del Mediterraneo, should solicit an overruling by the constitutional courts, preferably before facing the unpleasant hypothesis of requests for claims for damages on the part of individuals due to the constitutional courts’ behaviour.” It is evident that the supreme (and constitutional courts) of the Member States are exceedingly wary of the full implications of the Köbler ruling, and little as regards national (superior) court case-law has dealt with its application, even in a domestic situation. Thus while considering it as a useful instrument in ‘encouraging’ references from national constitutional courts, the actual impact of Köbler still remains to be explored further at both national and ECJ level. c. Lawful Judge—A Strong Possibility On the other hand, in order to complement Köbler, refusal or avoidance to refer by a constitutional court329 could see the extension of the right to a lawful judge throughout the EU Member States and might be interpreted by the ECJ as a general principle of law. This ability to develop general principles of law has been present in the Union system since its inception because it was apparent, at a very early stage, that the ECSC Treaty was not comprehensive enough to deal with the cases that were coming before the ECJ, in as much as specific provisions were not always capable of providing adequate solutions to the problems to be addressed by the Court. Thus the ECJ was faced with a situation where it was compelled either to formulate its own general principles or adopt certain of those general principles used by the Member States.330 The legal basis for the incorporation of general principles into European law is slim, resting precariously on three Articles: the wording of Art. 267 TFEU331 and Art. 19 TEU332 allow the ECJ to go beyond the Treaties to create/develop Union law.

Available at: . Accessed 21 January 2009. 329 On the issue of a superior court not abiding by its duty to refer, see Case C-453/00 Kühne & Heitz NV v. Productschap voor Pluimvee en Eieren [2004] ECR I-837, at para. 18 in which the ECJ stated: “That question is justified in the light of, in particular, Article 234 EC [now Art. 267 TFEU], according to which a national court against whose decision there is no judicial remedy is obliged to refer the question to the Court for a preliminary ruling. In 1991, the College van Beroep voor het bedrijfsleven mistakenly took the view that it was released from that obligation because, in accordance with the judgment in Case 283/81 CILFIT [1982] ECR 3415, it considered that the interpretation of the customs tariff subheadings concerned left no room for doubt. The national court is therefore uncertain whether effective and full implementation of Community law requires that, in a case such as that which has been brought before it, the rule on the finality of administrative decisions be relaxed.” 330 A.F. Tatham EC Law in Practice: A Case Study Approach, HVG-ORAC, Budapest (2006), at 22–42. 331 This Article gives the ECJ power to review the legality of Union acts on the basis of inter alia, “infringement of this Treaty,” or “any rule of law relating to its application.” 332 This Article, governing the role of the ECJ and the General provides that the Courts “shall ensure that in the interpretation and application of this Treaty the law is observed.”

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Moreover, while Art. 340(2) TFEU333 purports to deal only with liability of the Union, it provides some direction for the Court as to where it should look for these non-codified rules of Union law. The ECJ has clearly used this statement as its basic guideline in developing a considerable judge-made element in Union law. That having been said, some principles have been developed primarily with reference to international law.334 Some are principles not recognised in the national legal systems of all EU Member States. Even when such principles are present throughout the Union, the form in which they are adopted by the ECJ is usually based primarily on the concept as it exists in one Member State in particular. Regardless of the source of its derivation, once a general principle is adopted by the ECJ, it becomes an independent rule of Union law and leads a separate existence from that of the same principle in the legal system or systems which spawned it. For example, in the Internationale Handelsgesellschaft case,335 the ECJ noted: “respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice. The protection of such rights, whilst inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structure and objectives of the Community.” One of the ECJ’s most detailed discussions of human rights is to be found in Hauer,336 in which the ECJ not only referred to particular provisions in the constitutions of three Member States (Germany, Italy and Ireland) in order to establish that the right to property was subject to restrictions, but also analysed in some detail the relevant provisions of the ECHR. In this respect, might not the ECJ be able to construe, from the constitutional traditions common to Member States,337 the right to a lawful judge at the European level? Using its own previous case-law interpreting Arts. 6 and 13 ECHR (right to a fair hearing and right to a legal remedy)338 together with the EU Charter of Fundamental Rights (‘CFR’), Art. 47 (on the right to an effective remedy and the 333 This paragraph, which governs Union liability in tort, provides that liability is to be determined, “in accordance with the general principle common to the laws of the Member States.” 334 Case C-27/96 Danisco Sugar AB v. Almänna Ombudet [1997] ECR I-6653. 335 Case 11/70 Internationale Handelsgesellschaft mbH v. Einfuhr-und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125. See also Case 25/70 EVGF v. Köster [1970] ECR 1161. 336 Case 44/79 Hauer v. Land Rheinland-Pfalz [1979] ECR 3727. 337 Such principle already exists in various Member State constitutions: Austria (Art. 83); Belgium (Art. 13); Estonia (Art. 24); Germany (Art. 101); Greece (Art. 8); Italy (Art. 25(1)); Luxembourg (Art. 13); the Netherlands (Art. 17); Portugal (Art. 32(9)); Slovakia (Art. 48); and Spain (Art. 24). In fact Austria has already followed Germany by its Constitutional Court also recognising the ECJ as a “lawful judge”: e.g., VfGH B2300/95, 11 Dezember 1995, VfSlg. 14390; VfGH B 2477/95, 12 Juni 1996, VfSlg. 14499; and VfGH B 3486/96, 26 Juni 1997, VfSlg. 14889. 338 Case 98/79 Pecastaing v. Belgian State [1980] ECR 691; Joined Cases 100/80 to 103/80 SA Musique Diffusion française v. Commission [1983] ECR 1825; Case 222/84 Johnston v. Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651; and Case 222/86 UNECTEF v. Heylens [1987] ECR 4097.

conclusion325 right to a fair trial)339—and noting a common EU Member State constitutional tradition—the ECJ might seek to ‘find’ the right to a lawful judge from these various provisions. This could be the counterpart to Köbler and could allow for a more effective monitoring by the ECJ (in co-operation with parties in domestic litigation) of constitutional court preferences for refusing to or avoiding making Art. 267 TFEU references. Granted there would be issues that would need to be addressed. First, in Lutz John v. Germany,340 the ECtHR declared inadmissible complaints that the failure of a domestic court to seek a reference from the ECJ breached the applicant’s right under Art. 6 ECHR. While this might appear to undermine the ECJ’s finding of a general principle under Union law based on Art. 6 ECHR and Art. 47 CFR, the ECtHR in Lutz John was dealing with a domestic court against which further national remedies lay and did not exclude the possibility that a refusal to refer to the ECJ could infringe Art. 6 ECHR if it appeared arbitrary.341 Clearly the ECtHR decision was as much about its keeping out of disputes between national courts and the ECJ involving EU law and would have caused profound difficulties were it to have allowed the application—if the complainant had been successful, it would have opened up the floodgates to other actions. Secondly, the ECJ would have to set out the relevant criteria for claiming infringement of this right to a lawful judge if a national constitutional court were to refuse to make a reference to the ECJ. A start could be made by reviewing the CILFIT case as mentioned above,342 adapting its criteria to the situation of a refusal to refer by a constitutional (or other supreme) court against whose decision there is no remedy in the national system. Failure to state its reasons for refusal could be considered as a breach of an essential procedural requirement by the constitutional court.343 Any arbitrary refusal could be deemed to infringe the right to a lawful judge (thereby following Lutz John). The ECJ could, naturally, draw inspiration from the criteria used by the FCC344 (and the Austrian Constitutional 339 In the “Explanations relating to the Charter of Fundamental Rights” (2007 OJ C303/29), it states: “Article 47 applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” 340 ECtHR, Lutz John v. Germany, Application No. 15073/03, 13 February 2007. 341 On this point, the ECtHR cited to its own case-law: Matheis v. Germany, Decision No. 73711/01, 1 February 2005; Bakker v. Austria, Decision No. 43454/98, 13 June 2002; and Schweighofer and Others v. Austria, Decision Nos. 35673/97, 35674/97, 36082/97 and 37579/97, 24 August 1999. 342 See at Chapter Six, point B.4.e. 343 Regulations, Directives and Decisions are subject to certain procedural safeguards – they must “state the reasons on which they are based and shall refer to any proposals or opinions which were requested to be obtained pursuant to this Treaty”: Art. 296 TFEU (ex-Art. 253 EC) and amounts to a general principle of Union law. These are essential procedural requirements and any act which does not comply with these requirements will be subject to annulment: Arts. 263 and 267 TFEU (ex-Arts. 230 and 234 EC). For example, in France v. Commission (Case C-325/91 France v. Commission [1993] ECR I-3283), the ECJ held that there was a requirement to state the Treaty base, without which the measure was void. 344 See above at Chapter Three, point D.4.a.

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Court345) in respect of its own national courts’ refusal to make a reference to the ECJ. In so acting, the ECJ would merely be reaffirming the point that the process of ‘constitutionalisation’ of the EU has been heavily influenced by numerous principles of national constitutional law.346 D. Final Remarks 1. Steps Forward and the Effects of Lisbon Through the employment of either proposed mechanism, the citizens of the EU would feel that they had some sort of extra lever over the growth of the EU, perhaps psychologically necessary—beyond the periodic elections to a European institution from which many of the electorate feel remote or alienated, or about which they are ignorant. Such a constitutional reference procedure would broaden indirect citizen participation in constitutional dialogue, adding to Art. 267 TFEU, as well as the separate, though complementary, changes to direct actions before the ECJ for individuals and companies under the Art. 263 TFEU procedure, revised through the Lisbon Treaty.347 But these are proposals and aims for a different time. What may be a more realistic aim, post Lisbon, is a reinterpretation of national sovereignty and its essential content for the EU of the twenty-first century and a shift from an understanding of the bifuric hierarchical EU and national legal orders to an acceptance of a plurilevel common European constitutional order. Such change would go far to creating a better atmosphere for the operation of clearer lines and aims of transjudicial communication, dialogue and the deepening of the relationship of co-operation in the Union:348 “Dialogue and close cooperation between the Constitutional Courts and the ECJ, guided by the principles of mutual respect and the guaranty [sic] for national identity will bring about an adequate solution where essential

345 See generally G. Holzinger, “Die Bedeutung des Vorabentscheidungsverfahrens für das verfassungsgerichtliche Verfahren,” in M. Holoubek & M. Lang (eds.), Das verwaltungsgerichtliche Verfahren in Steuersachen, Linde, Wien (1999), 65. 346 V. Skouris, “L’influence du droit national et de la jurisprudence des juridictions des Etats membres sur l’interprétation du droit communautaire,” in G. Müller, D. Osterloh & T. Stein (eds.), Festschrift für Günther Hirsch zum 65. Geburtstag, C.H. Beck, München (2008), 175ff. 347 Art. 263 TFEU. For an earlier discussion of the proposed changes to ex-Art. 230 EC under the Draft EU Constitutional Treaty, see M. Varju, “The Debate on the Future of the Standing under Article 230(4) TEC in the European Convention” (2004) 10 EPL 43; C. Koch, “Locus standi of private applicants under the EU Constitution: preserving gaps in the protection of individuals’ right to an effective remedy” (2005) 30 EL Rev. 511–527; and J. Usher, “Direct and individual concern – an effective remedy or a conventional solution?” (2003) 28 EL Rev. 575–600. 348 I. Pernice, “The Treaty of Lisbon: Multilevel Constitutionalism in Action,” WHI-Paper 2/09, Walter Hallstein-Institut für Europäisches Verfassungsrecht, Humboldt-Universität zu Berlin, at 55.

conclusion327 rules of national law seem to be in question.”349 This also appears to be the tone of the President of the German FCC, speaking extrajudicially,350 when he promoted the idea of multilevel co-operation—between national constitutional courts and the ECJ and ECtHR within the context of European integration—as ‘der Europäische Verfassungsgerichtsverbund.’ 2. Ende, Végül, Koniec The decisions of the various constitutional judicial organs in this book are a further step in that process with the clear acceptance of the integration (rather than mere co-ordination) of the EU and national legal orders. The members of these domestic constitutional courts have incorporated (to a greater or lesser extent) European integration and its consequences into their deliberations and decisionmaking while, at the same time, balancing their protection of national constitutional identity at its deepest level within the European Union. Such institutions have, through the medium of horizontal transjudicial communication, moved the debate on to a more pluralist, multilevel view of constitutionality in the Union and its Member States. Arguably, they have accepted the view that constitutionalism in the integrated EU/national systems must be approached in a co-operative judicial relationship, a marked ‘holistic’ approach to sensitive domestic constitutional issues in the context of the evolving nature of national sovereignty and its essential core. Such reappraisal would benefit all citizens of the EU.

349 He continues by observing, though, that where a true conflict remains, the EU might need “to digest the exceptional disregard” or the Member State concerned might consider its withdrawal from the EU. 350 Voβkuhle (2010), at 183–198.

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INDEX Abstract constitutional review 54, 68–69, 141–143, 208, 210, 254 Academics see Constitutional courts (Membership) Accession Hungary 136–137, 145, 153–154, 156–157, 159, 161–163, 166–168, 173, 177, 180, 183, 187–195, 197, 199, 201, 308 Poland 205–206, 211, 220–224, 226, 230–231, 233–234, 237–240, 252–253 Treaty 153, 157, 161–162, 187, 192, 194, 197, 206, 222–224, 227, 230–231, 233–234, 238–245, 264–266, 276–277, 281 Acquis communautaire 9, 110, 298 Acquis européen 9 Acte clair see Preliminary reference procedure Actio popularis Europae basis 312–315 co-operation 320–321 green light 316–319 legitimacy 320–321 prior filters 316–319 stakeholder participation in 311–312 use for 312–321 written procedure 319–320 Hungary 61, 141–143, 179, 184, 186 Adjudication see Constitutional courts Agreements see Association Agreements; Treaties Anwendungsvorrang see Priority of European law (Application, of) Arrest Warrant, European Germany 111, 122–124, 198, 272 Hungary 185 Poland 22, 198, 259–265, 277 Association Agreements Europe Agreements 136, 142, 154, 160–162, 197, 199, 205, 255 Austria Central Europe legal influence in 49–54, 67–68, 139 Constitution 76, 86, 157, 296, 324 Constitutional Court 7, 37, 43, 54–55, 67–68 EU law, application of 36, 44, 86, 165, 173, 193, 202–203, 286, 299 references to European Court of Justice 4, 86, 280, 307, 310, 325–326

Sovereignty essential core of 65–66, 278 limitations to 65–66, 278 Autonomous interpretation EU law 35 Basic constitutional charter EU 1, 15–16 Basic constitutional principles Democracy 67, 71, 74–76, 81, 99, 102–104, 106–110, 114–120, 130, 145–146, 148–150, 154, 159, 177, 179, 190, 205, 216–217, 224, 243, 271, 289, 293, 311–312 EU 7, 127, 131–132, 289, 293, 311 Fundamental rights protection 69–71, 75–77, 144–145, 150–153, 209–210, 217–220 Germany 71–77 Hungary 145–153, 278 Poland 210–220 Rechtsstaat 8, 57–58, 62, 67, 71–73, 77, 116 see also State under the rule of law Separation of powers 7–8, 56–58, 72, 135, 146, 214, 224, 243, 270, 312 State under the rule of law 7–8, 15, 28, 56–58, 62, 67, 71–73, 77, 81, 94, 116, 122, 127, 131, 135, 139, 145–150, 153–155, 186, 188–189, 202, 212–215, 217–218, 220, 224, 235–236, 243, 249–250, 271, 278, 289, 293, 311–312 Basic rights see Fundamental rights Belgium Constitution 43–44, 324 Cour Constitutionnelle 43–44, 324 references to European Court of Justice 44, 311 Cour d’Arbitrage 43–44 references to European Court of Justice 44 Budgetary powers Bundestag, of 116–121 Prohibition of review 140 Charter of Fundamental Rights 17, 60, 127, 152, 182 Binding status 200, 307 Relations with European Convention on Human Rights 258, 324–325 Structure and content 280, 324–325 see also Fundamental rights

366

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Civil rights see Charter of Fundamental Rights; European Convention on Human Rights; Fundamental rights Compensation see Damages Competences Division, of EU and Member States 14, 81–82, 95, 97, 103, 230–238, 244–251, 258, 292, 297, 300, 313 Member States, of 103, 120, 158, 181–182, 185, 187–190, 211, 217, 223–227, 244–251, 253–254, 264 Principle of conferral limitations to 81–82, 103, 110–114, 120, 126, 158, 181–182, 185, 187–190, 211, 217, 221, 223–227, 230–238, 241, 244–251, 253–254, 267, 292 see also Kompetenz-Kompetenz Concrete constitutional review 69, 141, 143–144, 172, 208 Conferral see Competences (Principle of conferral) Constitution Belgium 43–44, 311, 324 Czech Republic 132 Definition 14 Drafting Austrian model, impact on 54–56 constitutional courts 60–61 French model, impact on 56–57 fundamental rights 59–63 German model, impact on 54–61 postcommunist systems 54–63 EU 1, 13–19 EU law, and national 22, 40, 80, 84, 92, 100, 106–119, 126, 133, 186–190, 202, 226, 246, 249–252, 267, 272, 277–279, 281, 291, 294–303, 312–315, 318, 327 France 56–57, 157, 272, 275 Germany see Germany Hungary see Hungary Individuality 19–24, 39 International law, and 69, 85–88, 119, 128, 154, 160–163, 174, 184–185, 188–189, 194, 220, 224, 228, 230, 237, 247–248, 263, 277, 283, 324 Italy 26–27, 56, 88–89, 130, 160, 324 Legal culture, and 19–22, 29 Poland see Poland Sovereignty, and 22, 29–30, 36, 38–39, 44, 65–66, 71–77, 84, 129–133, 137–138, 141, 145–152, 202, 206, 210–220, 224, 226

Spain 25–28, 56, 220–221, 272, 324 Supremacy of EU law, and 84–129, 159–200, 226–264 Treaties, and Lisbon Treaty, relationship with 7, 11, 18, 20, 22, 28, 30, 40, 66–67, 80, 82–84, 87, 92–93, 99, 103, 106–113, 115–117, 119, 121, 130–133, 169, 173, 179, 181, 184, 186–190, 200–203, 225–226, 245–252, 265, 267, 272, 276–279, 281, 302–303, 308–309 Maastricht Treaty, relationship with 9–10, 30, 35, 81–83, 92, 99, 102–108, 110–111, 115, 119–120, 129–133, 160, 169, 178–179, 181, 190, 201–202, 225–226, 232, 245, 248, 251, 265, 267, 272, 278, 282, 309 Constitutional adjudication see Constitutional courts see also Federal Constitutional Court; Hungarian Constitutional Court; Polish Constitutional Tribunal Constitutional amendments Accession to EU 136–137, 145, 153–154, 156–157, 159, 161–163, 166–168, 173, 177, 180, 183, 187–195, 197, 199, 201, 205–206, 211, 220–224, 226–227, 230–231, 233–234, 237–245, 252–253, 264–266, 276–277, 281 Europe clause 80–84, 141, 156–159, 201, 203, 221, 272, 277 Ratification of European treaties 16, 66, 78–81, 85–87, 94, 102–103, 110, 119, 130, 153, 156, 178, 184, 186, 190, 205, 208–209, 221–222, 224, 227, 230, 233, 246–247, 252 Referendums 74, 102, 149–150, 153, 155, 157, 159, 189, 210, 216–217, 221–222, 224–225, 227, 241, 244 Constitutional basis EU integration, of Germany 77–84 Hungary 153–159 Poland 220–226 Constitutional borrowing 13, 32–34, 39 Constitutional charter Basic EU 1, 15–16 Constitutional courts Abstract review 54, 68–69, 141–143, 208, 210, 254 Concrete review 69, 141, 143–144, 172, 208 Constitutional complaint 68–71, 77, 105, 107, 115, 120, 125, 128, 144–145, 172, 178, 190, 209–210, 219, 226, 235, 243, 255–256, 258–259 Constitutional identity review 22, 40, 80, 84, 92, 100, 106–112, 115–119, 126, 133, 186–190,

index367 202, 226, 246, 249–252, 267, 272, 277–279, 281, 291, 294–303, 312–313, 315, 318, 327 Deliberative institutions, as 39, 54, 274, 276 Democracy 67, 71, 74–76, 81, 99, 102–104, 106–110, 114–120, 130, 145–146, 148–150, 154, 159, 177, 179, 190, 205, 216–217, 224, 243 Directives review of 121–126, 190–191, 197–199, 235, 259–264 Europe Agreements review of 136, 142, 154, 160–162, 197, 199, 205, 255 European Court of Justice judicial dialogue between 5–7, 28, 31, 39–40, 66, 129, 138, 201, 206, 263, 282–284, 287–297, 309–314, 317, 320–322, 326 preliminary rulings, and 90–99, 126–129, 168–177, 196, 199–200, 230–239, 264, 305–306, 316–320, 322 refusal to refer to 126–129, 199–200, 264, 317 European treaties review of 99–121, 177–190, 239–252 EU secondary legislation review of 100–102, 121–126, 190–199, 235, 252–259, 235–264 Fundamental rights 69–71, 75–77, 144–145, 150–153, 209–210, 217–220 Germany see Federal Constitutional Court Grounds for review democracy 67, 71, 74–76, 81, 99, 102–104, 106–110, 114–120, 130, 145–146, 148–150, 154, 159, 177, 179, 190, 205, 216–217, 224, 243 fundamental rights 69–71, 75–77, 144–145, 150–153, 209–210, 217–220 legal certainty 58, 72–73, 140, 146–148, 184, 193, 196, 213, 271, 293 Rechtsstaat 8, 57–58, 62, 67, 71–73, 77, 116 separation of powers 56–58, 72, 135, 146, 214, 224, 243, 270, 312 state under the rule of law 67, 71–73, 77, 81, 94, 116, 122, 127, 131, 135, 139, 145–150, 153–155, 186, 188–189, 202, 212–215, 217–218, 220, 224, 235–236, 243, 249–250 Hungary see Hungarian Constitutional Court Judges guardians of the state, as 29–30, 271–273, 276, 293, 310 veto-players, as 269–271 Judicial dialogue 5–7, 28, 31, 39–40, 66, 129, 138, 201, 206, 263, 282–284, 287–297, 309–314, 317, 320–322, 326

Jurisdiction 67–71, 138–145, 206–210 Lawful judge 93–97, 171–172, 229, 235–237, 280–281, 321–326 Legal certainty 58, 72–73, 140, 146–148, 184, 193, 196, 213, 271, 293 Membership academics 37–38, 52–54 National transposing legislation review of 121–126, 190–191, 197–199, 235, 259–264 Poland see Polish Constitutional Tribunal Rechtsstaat 8, 57–58, 62, 67, 71–73, 77, 116 Regulations review of 100–102, 191–197, 235, 252–259 Separation of powers 7–8, 56–58, 72, 135, 146, 214, 224, 243, 270, 312 Standing 7, 68–71, 120–121, 134, 141–145, 184, 208–210, 312 State under the rule of law 67, 71–73, 77, 81, 94, 116, 122, 127, 131, 135, 139, 145–150, 153–155, 186, 188–189, 202, 212–215, 217–218, 220, 224, 235–236, 243, 249–250 Treaties review of 99–121, 136, 142, 154, 160–162, 177–190, 197, 199, 205, 239–252, 255 Value choices 270, 273–274 Ultra vires review 92–93, 98, 100, 103, 106, 110–114, 133, 181, 189–190, 202, 225–226, 277–278, 280, 309 see also Federal Constitutional Court; Hungarian Constitutional Court; Polish Constitutional Tribunal Constitutional identity EU, and the 22, 40, 272, 277–279, 281, 291, 294–303, 312–313, 315, 318, 327 European Court of Justice 272, 277–279, 281, 291, 294–303, 312–313, 315, 318, 327 Germany 80, 84, 92, 100, 106–112, 115–119, 126, 133 Hungary 186–190, 202 Poland 226, 246, 249–252, 267 Review, basis of 22, 40, 80, 84, 92, 100, 106–112, 115–119, 126, 133, 186–190, 202, 226, 246, 249–252, 267, 272, 277–279, 281, 291, 294–303, 312–313, 315, 318, 327 Constitutionalisation of the Treaties 1, 13–18, 22, 42, 84, 99, 130, 177, 239, 269, 303, 326 Constitutionalism Best fit 288–289 Contrapunctual 288 Co-ordinate 288–290 Pluralist 38–39, 284–293, 297, 308, 319–320, 327

368

index

Constitutional jurisdiction Creation Austrian model, impact of 67–68 German model, impact of 54–61 postcommunist 54–61 Germany 67–71 Hungary 138–145 Multilevel 284–285, 287, 291, 327 Poland 206–210 see also Federal Constitutional Court; Hungarian Constitutional Court; Polish Constitutional Tribunal Constitutional justices Guardians of the state, as 29–30, 271–273, 276, 293, 310 Language abilities, of 52–54 Legal education, of 52–54 Veto-players, as 269–271 Constitutional migration 7, 13, 20, 34–39, 41, 63, 276, 280, 312, 319 Constitutional order European 17, 39, 284, 288, 290, 297, 311, 326 National 35, 39, 61, 68, 70–71, 87, 100, 102, 130, 223–224, 247, 263, 274, 284, 290–291 Constitutional principles see Basic constitutional principles Constitutional review Abstract 54, 68–69, 141–143, 208, 210, 254 Concrete 69, 141, 143–144, 172, 208 Directives, of 121–126, 190–191, 197–199, 235, 259–264 European treaties, of 99–121, 177–190, 239–252 National transposing law, of 121–126, 190–191, 197–199, 235, 259–264 Regulations, of 100–102, 191–197, 235, 252–259 Constitutional stand-off 11, 281–291 Constitutional state see State under the rule of law Contrapunctual constitutionalism 288 Co-operation Relationship of 36, 92, 103–104, 122, 129, 133, 169, 183, 232, 265, 267, 269, 281, 301, 304, 309, 311, 320, 326 Co-operative constitutional adjudication 131, 287–288, 294–297 Co-ordinate constitutionalism 288–290 Core of sovereignty see Essential core of sovereignty see also Constitutional identity Counter limits see Italy (Constitutional Court) Court of Justice of the European Union see European Court of Justice Criminal law see European Arrest Warrant

Cross-fertilisation 19, 28, 32–35, 38–41, 278 Czech Republic 118 Constitution 132 Constitutional Court EU law, approach to 132, 277 Damages Judicial breaches of EU law 94, 233, 321–323 Data protection Infringement of 93, 125–126, 129 Right to 59, 140 Deliberative institutions see Constitutional courts Deliberative judicial supranationalism 305–306, 311 Democracy European integration 67–81, 99–120, 130, 145–159, 177–179, 190, 205, 216–217, 224, 243 Germany 67, 71, 74–76, 81, 99, 102–104, 106–110, 114–120, 130 Hungary 145–146, 148–150, 154, 159, 177, 179, 190 Legitimacy, and 30, 82–83, 106, 108, 110, 120, 150, 155, 180, 188, 222, 243, 252, 272, 275 Poland 205, 216–217, 224, 243 Principle of 67, 71, 74–76, 81, 99, 102–104, 106–110, 114–120, 130, 145–146, 148–150, 154, 159, 177, 179, 190, 205, 216–217, 224, 243 Ultra vires 92–93, 98, 100, 103, 106, 110–114, 133, 190, 202, 225, 278, 280 Democratic legitimation 30, 82–83, 106, 108, 110, 120, 150, 155, 180, 188, 222, 243, 252, 272, 275 Democratic principle see Democracy (Principle of) Denmark 42–43, 245 Dignity, human 59, 62, 71, 75, 106–107, 134, 140, 151–152, 190, 250, 290, 294 Direct applicability 18, 103, 161–163, 167, 192–195, 231, 253, 256 Direct effect 15, 18, 27, 66, 85–90, 98, 122, 130, 138, 162–168, 174–175, 194, 201, 230–232, 253, 260, 300, 310 Direct applicability, and 18, 165, 253, 256 Directives see Directives (Direct effect) European treaties see European treaties National constitutional law, effect on 66, 85–90, 98, 122, 130, 138, 162–168, 174–175, 194, 201, 230–232, 253, 260 Directives Direct effect Germany 88–90, 98 Hungary 162–163, 166–168, 174–175 Poland 230–232 Review of Germany 121–126

index369 Hungary 190–191, 197–199 Poland 235, 259–264 Division of competences see Competences (Division, of) Doctrinal negotiation 36 Drafting German model, impact on constitutional courts 60–63 constitutions 54–58 fundamental rights catalogues 59–60 postcommunist systems 52–63 Dualism Moderated dualism 78 Economic and Monetary Union Constitutionalism, importance of 102–110, 114–121 Euro bail-out 115–118 budgetary autonomy 115–120 democracy 102–110, 114–121 rescue package 115–120 European Financial Stabilisation Mechanism 115 European Financial Stability Facility 115–118 European Stability Mechanism 118–121 Fiscal Compact 118–121 Germany constitutionality 114–121 Sovereignty 102–110, 114–121 Stability 115–120 Equality Principle of 70, 73, 90–91, 106, 112–114, 171, 219, 289 Essential core of sovereignty Constitutional identity, and 80, 84, 92, 100, 106–112, 115–119, 126, 133, 186–190, 202, 226, 246, 249–252, 267 Contents 24–30, 38–39, 44 Definition 22, 29–30, 65–66 France 25–26, 130–132 Germany 65–66, 71–77, 84, 99–121, 129–133 Hungary 137–138, 141, 145–152, 177–190, 202 Italy 26–27, 88–89, 130 Poland 206, 210–220, 224, 226, 239–259 Spain 25–28, 131–132, 165 Verfassungskern 24–30 Eternity clause 65–66, 71, 77, 83, 99, 107, 132 see also Ewigkeitsklausel EU law Direct effect of 15, 18, 27, 66, 85–90, 98, 122, 130, 138, 162–168, 174–175, 194, 201, 230–232, 253, 260, 300, 310 Primacy of 2, 15, 18, 26, 39, 85–88, 104, 131, 162–163, 167, 228, 231, 266, 285–288, 297–303, 306

Priority of application of 85–88, 159–165, 168, 194, 201, 227–231, 241–242, 245, 279, 285 validity of 85–86, 228, 279 Sui generis nature of 14, 162, 174, 308 Supremacy of 7, 15–18, 24, 36, 84–129, 159–200, 226–264, 275–276, 285–293, 298, 301, 310 Euro see Economic and Monetary Union (Euro) Europarechtsfreundlichkeit 84, 107, 111, 125, 133, 309 European Arrest Warrant Germany 111, 122–124, 198, 272 Hungary 185 Poland 22, 198, 259–265, 277 European constitutional area 285–287 European constitutional tradition 24, 251 European Convention on Human Rights Accession of EU 7, 258, 313–314 National constitutional court, application by Germany 70–71, 76–77 Hungary 152 Poland 219–220, 258 European Court of Human Rights Case-law application Germany 70–71, 76–77 Hungary 152 Poland 219–220, 258 Relationship with European Court of Justice 35, 127–128, 313–314, 324–325 European Court of Justice Competences see Preliminary rulings Constitutional court, as 14, 17 Judicial dialogue European Court of Human Rights, with 35, 127–128, 313–314, 324–325 national constitutional courts, with 5–7, 28, 31, 39–40, 66, 129, 138, 201, 206, 263, 282–284, 287–297, 309–314, 317, 320–322, 326 Judicial supranationalism 305–306, 311 Liability of national judges 94, 233, 321–323 National constitutional courts see Judicial dialogue Preliminary rulings acte clair doctrine 170–171, 173, 196, 200, 237, 316 conditions for a preliminary ruling 170– 171, 175–177, 305–306, 316–320 constitutional courts 90–93, 168–171, 232–235 jurisdiction of the Court 94–95, 127–128, 230–231, 234–237, 305–306, 316–320, 322

370

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Preliminary rulings (Cont.) national courts and tribunals 90–99, 168–177, 232–239 obligation to refer and acte clair 305–306 rejecting preliminary ruling requests 126–129, 199–200, 264, 317 Priority of rulings Germany 98–99 Hungary 172–177 Poland 237–239 Supremacy of EU law see Supremacy European Financial Stabilisation Mechanism 115 European Financial Stability Facility 115–118 Europeanisation 5 European Stability Mechanism 118–121 European treaties review of 99–121, 177–190, 239–252 Europe clause National constitutions, in 80–84, 141, 156–159, 201, 203, 221, 272, 277 Ewigkeitsklausel 65–66, 71, 77, 83, 99, 107, 132 Federal Constitutional Court Abstract review 68–69 Concrete review 69 Constitutional complaint 68–71, 77, 105, 107, 115, 120, 125, 128 Constitutional identity review 80, 84, 92, 100, 106–112, 115–119, 126, 133 Democracy 67, 71, 74–76, 81, 99, 102–104, 106–110, 114–120, 130 Directives review of 121–126 European Court of Justice preliminary rulings, and 90–99 refusal to refer to 126–129 relationship with 84–129 European treaties review of 99–121 EU secondary legislation review of 100–102, 121–126 Fundamental rights 69–71, 75–77 Grounds for review democracy 67, 71, 74–76, 81, 99, 102–104, 106–110, 114–120, 130 fundamental rights 75–77 legal certainty 72–73 Rechtsstaat 67, 71–73, 77, 116 separation of powers 72 state under the rule of law 67, 71–73, 77, 81, 94, 116, 122, 127, 131 Jurisdiction 67–71 Lawful judge 93–97 Legal certainty 72–73 National transposing legislation review of 121–126

Rechtsstaat 8, 57–58, 62, 67, 71–73, 77, 116 Regulations review of 100–102 Separation of powers 72 Standing 68–71, 120–121, 134 State under the rule of law 67, 71–73, 77, 81, 94, 116, 122, 127, 131 Treaties review of 99–121 Ultra vires review 92–93, 98, 100, 103, 106, 110–114, 133, 190, 202, 225, 277, 280, 309 Federal Republic of Germany see Germany Fiscal Compact 118–121 France Conseil constitutionnel 7, 25–26, 43–44 Conseil dʼEtat 7, 88, 130 Constitution 56–57, 157, 272, 275 Cour de Cassation 7, 114 Sovereignty essential core of 25–26, 130–132 limits to 25–26, 130–132 Fundamental rights Catalogue national 59–60, 75–77, 150–153, 217–220 Charter of Fundamental Rights 17, 60, 127, 152, 182, 200, 258, 280, 307, 324–325 European Convention on Human Rights 21, 35, 60, 70–71, 76–77, 152, 219–220, 258, 314, 324–325 European Court of Human Rights case-law 21, 35, 76–77, 128, 152, 219–220, 283, 313–314, 325–327 Germany catalogue 75–77 impact in Central Europe 59–63 protection 69–71, 75–77 Hungary catalogue 150–153 protection 144–145, 150–153 Poland catalogue 217–220 protection 209–210, 217–220 Geltungsvorrang see Priority of European law (Validity, of) Germany Central Europe legal influence in 45–63 Democracy 67, 71, 74–76, 81, 99, 102–104, 106–110, 114–120, 130 Eternity clause 65–66, 71, 77, 83, 99, 107, 132 Europe clause 80–84 Ewigkeitsklausel see Eternity clause Federal Constitutional Court see Federal Constitutional Court

index371 Fundamental rights, protection of 69–71, 75–77 Rechtsstaat 67, 71–73, 77, 116 Sovereignty essential core of 65–66, 71–77, 84, 129–133 limitations on 99–121 State under the rule of law 67, 71–73, 77, 81, 94, 116, 122, 127, 131 Supremacy of EU law constitution, and 84–129 Gesetzlicher Richter see Lawful judge Guardians of the constitution Constitutional judges, as 29–30, 271–273, 276, 293, 310 Historical affinities between legal systems 45–54 Human dignity Right to 59, 62, 71, 75, 106–107, 134, 140, 151–152, 190, 250, 290, 294 Hungarian Constitutional Court Abstract review 141–143 Concrete review 141, 143–144 Constitutional complaint 144–145, 172, 178, 190 Constitutional identity review 186–190, 202 Democracy 145–146, 148–150, 154, 159, 177, 179, 190 Directives review of 190–191, 197–199 European Court of Justice preliminary rulings, and 168–177 refusal to refer to 199–200 relationship with 159–200 European treaties review of 177–190 EU secondary legislation review of 190–199 Fundamental rights 144–145, 150–153 Grounds for review democracy 145–146, 148–150, 154, 159, 177, 179, 190 fundamental rights 144–145, 150–153 legal certainty 140, 146–148, 184, 193, 196 separation of powers 135, 146 state under the rule of law 135, 139, 145–150, 153–155, 186, 188–189, 202 Jurisdiction 138–145 Lawful judge 149–150, 153, 155, 157, 159, 189 Legal certainty 140, 146–148, 184, 193, 196 National transposing legislation review of 190–191, 197–199 Regulations review of 191–197 Separation of powers 135, 146 Standing 141–145, 184

State under the rule of law 135, 139, 145–150, 153–155, 186, 188–189, 202 Treaties review of 136, 142, 154, 160–162, 177–190, 197, 199 Ultra vires review 181, 189–190, 202, 278 Hungary Accession treaty 153, 157, 161–162, 187, 192, 194, 197 Constitutional Court see Hungarian Constitutional Court Democracy 145–146, 148–150, 154, 159, 177, 179, 190 EU accession 136–137, 145, 153–154, 156–157, 159, 161–163, 166–168, 173, 177, 180, 183, 187–195, 197, 199, 201, 308 Europe clause 141, 156–159, 201, 203 Fundamental rights, protection of 144–145, 150–153 German law, impact on 45–63 Sovereignty essential core of 137–138, 141, 145–152, 202 limitations on 177–190 State under the rule of law 135, 139, 145–150, 153–155, 186, 188–189, 202 Supremacy of EU law constitution, and 159–200, 226–264 Identity Constitutional 22, 40, 80, 84, 92, 100, 106–112, 115–119, 126, 133, 186–190, 202, 226, 246, 249–252, 267, 272, 277–279, 281, 291, 294–303, 312–313, 315, 318, 327 Review constitutional court proceedings 80, 84, 92, 100, 106–112, 115–119, 126, 133, 186–190, 202, 226, 246, 249–252, 267 Individuality National constitutions, of 19–24, 39 Institutional matrix 304 Institutional and procedural reform proposals Actio popularis europae 312–321 Common Constitutional Court 304 Constitutional Council 304 European Conflicts Tribunal 304 European Constitutional Tribunal 304 European Supreme Court 304 Union Court of Review 304 International law Constitutions and treaties 69, 85–88, 119, 128, 154, 160–163, 174, 184–185, 188–189, 194, 220, 224, 228, 230, 237, 247–248, 263, 277, 283 Dualism moderated dualism 78 EU law, difference with 13–17, 162–163, 174

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Interpretation EU law, of autonomous 35 European Court of Justice, of impact domestically 27, 88–90, 98–99, 162–163, 166–168, 172–177, 230–232, 237–239 Italy Constitution 56, 160, 324 Constitutional Court 25–28, 31, 36, 43–44 EU law, decisions on 26–28, 31, 88–89, 130, 229, 307 Counter limits 26–27, 130 European Court of Justice references to 307, 311 Sovereignty essential core of 26–27, 88–89, 130 Judges see Constitutional justices; Damages (Judicial breaches of EU law) Judicial activism 13 Judicial borrowings see Constitutional borrowing Judicial co-operation see Judicial dialogue Judicial dialogue 5–7, 28, 31, 39–40, 66, 129, 138, 201, 206, 263, 282–284, 287–297, 309–314, 317, 320–322, 326 Judicial supranationalism see Deliberative judicial supranationalism Kompetenz-Kompetenz 247, 289 Kooperationsverhältnis 36, 92, 103–104, 122, 129, 133, 169, 183, 232, 265, 267, 269, 281, 301, 304, 309, 311, 320, 326 Language 22, 31, 38, 46, 48, 52, 109, 200, 283, 296 Constitutional court judges 52–54 reception of foreign law and decisions 8, 32–39, 46, 48, 54–55 Lawful judge Austria 86 Germany 93–97 EU 321–326 Hungary 171–172 Poland 229, 235–237, 280–281 Legal authority of EU deriving from Member States see Competences (Principle of conferral) Legal certainty 58, 72–73, 140, 146–148, 184, 193, 196, 213, 271, 293 Legal culture Affinities between systems 45–54 Constitutional borrowing 13, 32–34, 39

Constitutional migration 7, 13, 20, 34–39, 41, 63, 276, 280, 312, 319 Constitutions, and 19–22, 29 Cross-fertilisation of 19, 28, 32–35, 38–41, 278 Reception of 8, 32–39, 46, 48, 54–55 Transfer between states 32–40, 45–63 Transplants 32–33, 39, 41 Legal influence in Central Europe Austria 49–55 Germany 45–63 Legal transplants see Legal culture (Transplants) Liability of judges EU law breach, for 94, 233, 321–323 Lisbon Treaty see Treaties (Lisbon Treaty) Maastricht Treaty see Treaties (Maastricht Treaty) Mentalités 19–20, 134, 283, 296 Multilevel constitutionalism 284–285, 287, 291, 327 National constitutional values 2, 20–21, 24, 28–29, 37, 54–56, 131, 146, 223, 226, 239, 243–246, 249–251, 266, 279, 286, 289, 295 Negotiations Accession 136–137, 157, 205–206 Compromises 308, 311 Doctrinal 36–37, 297, 321 Non-discrimination 70, 73, 90–91, 106, 112–114, 171, 219, 289 Age 112–114 Openness to European law see Europarechtsfreundlichkeit Pluralist constitutionalism 38–39, 284–293, 297, 308, 319–320, 327 Plurilevel constitutional adjudication 40, 292, 326 Poland Accession treaty 206, 222–224, 227, 230–231, 233–234, 238–245, 264–266, 276–277, 281 Constitutional Tribunal see Polish Constitutional Tribunal Democracy 205, 216–217, 224, 243 EU accession 205–206, 211, 220–224, 226, 230–231, 233–234, 237–240, 252–253 Europe clause 221 Fundamental rights, protection of 209–210, 217–220 German law, impact on 45–63 Sovereignty essential core of 206, 210–220, 224, 226 limitations on 239–259

index373 State under the rule of law 212–215, 217–218, 220, 224, 235–236, 243, 249–250 Supremacy of EU law constitution, and 226–264 Polish Constitutional Tribunal Abstract review 208, 210, 254 Concrete review 208 Constitutional complaint 209–210, 219, 226, 235, 243, 255–256, 258–259 Constitutional identity review 226, 246, 249–252, 267 Constitutionality, presumption of 246–247 Democracy 205, 216–217, 224, 243 Directives review of 235, 259–264 European Court of Justice preliminary rulings, and 232–239 refusal to refer to 264 relationship with 226–264 European treaties review of 239–252 EU secondary legislation review of 235, 252–259, 235–264 Fundamental rights 209–210, 217–220 Grounds for review democracy 205, 216–217, 224, 243 fundamental rights 209–210, 217–220 legal certainty 213 separation of powers 214, 224, 243 state under the rule of law 212–215, 217–218, 220, 224, 235–236, 243, 249–250 Jurisdiction 206–210 Lawful judge 229, 235–237, 280–281 Legal certainty 213 National transposing legislation review of 235, 259–264 Regulations review of 235, 252–259 Separation of powers 214, 224, 243 Standing 208–210 State under the rule of law 212–215, 217–218, 220, 224, 235–236, 243, 249–250 Treaties review of 205, 239–252, 255 Ultra vires review 225–226, 278 Popular sovereignty 25, 149, 153–155, 188, 202, 278, 309–312 Pre-emption 15 Preliminary reference procedure Acte clair doctrine 126–129, 199–200, 264, 317 Conditions for a preliminary ruling 170–171, 175–177, 305–306, 316–320 Jurisdiction of the European Court 94–95, 127–128, 230–231, 234–237, 305–306, 316–320, 322 Legal nature of preliminary rulings 168–171, 232, 238–239, 310–311, 314–315, 320

National courts and tribunals 90–99, 168–177, 232–239 constitutional courts 90–93, 168–171, 232–235 Obligation to refer and acte clair 305–306 Rejecting preliminary ruling requests national constitutional courts 126–129, 199–200, 264, 317 Presumption of constitutionality 246–247 Primacy of EU law 2, 15, 18, 26, 39, 85–88, 104, 131, 162–163, 167, 228, 231, 266, 285–288, 297–303, 306 Priority of European law Application, of 85–88, 159–165, 168, 194, 201, 227–231, 241–242, 245, 279, 285 Validity of 85–86, 228, 279 Procedural reform see Institutional and procedural reform proposals Ratification of European treaties 16, 66, 78–81, 85–87, 94, 102–103, 110, 119, 130, 153, 156, 178, 184, 186, 190, 205, 208–209, 221–222, 224, 227, 230, 233, 246–247, 252 Reception of law 8, 32–39, 46, 48, 54–55, 276, 280 Rechtsstaat 8, 57–58, 62, 67, 71–73, 77, 116 see also State under the rule of law Referendums Germany 74, 102 Hungary 149–150, 153, 155, 157, 159, 189 Poland 210, 216–217, 221–222, 224–225, 227, 241, 244 Reform see Institutional and procedural reform proposals Regulations Review by national courts Germany 100–102 Hungary 191–197 Poland 235, 252–259 Relationship of co-operation see Kooperationsverhältnis Review Abstract 54, 68–69, 141–143, 208, 210, 254 Concrete 69, 141, 143–144, 172, 208 Constitutional (judicial) 68–69, 141–144, 208–210 EU secondary legislation, of 100–102, 121–126, 190–199, 235–264 National transposing legislation, of 121–126, 190–191, 197–199, 235, 259–264 Rule of law see State under the rule of law Schengen Agreement /Area Constitutional review of 26

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Secondary legislation Directives direct effect 27, 88–90, 98, 162–163, 166–168, 174–175, 230–232 national transposing legislation, review of 121–126, 190–191, 197–199, 235, 259–264 Regulations national courts, review of 100–102, 191–197, 235, 252–259 Separation of powers 7–8, 56–58, 72, 135, 146, 214, 224, 243, 270, 312 Germany 72 Hungary 135, 146 Poland 214, 224, 243 Sovereignty Essential core 22, 29–30, 36, 38–39, 44, 65–66, 71–77, 84, 129–133, 137–138, 141, 145–152, 202, 206, 210–220, 224, 226 Eternity clause 65–66, 71, 77, 83, 99, 107, 132 EU, and the 29–30, 99–121, 177–190, 239–259, 269, 272, 277–279, 281, 289, 292–293, 299–303, 307, 312, 316, 318, 327 Exercise of, transfer Germany 77–84 Hungary 153–159 Poland 220–226 France 25–26, 130–132 Germany 77–84 Hungary 153–159 Limitations impermissible 99–121, 177–190, 239–259 Poland 220–226 Popular 25, 149, 153–155, 188, 202, 278, 309–312 Transfer of exercise of Germany 77–84 Hungary 153–159 Poland 220–226 Spain Constitution 25–28, 56, 220–221, 272, 324 Constitutional Tribunal 43–44, 139, 275 EU law, decisions on 27–28, 131, 165, 275, 307–308 European Court of Justice preliminary reference to 307, 311 Sovereignty essential core of 25–28, 131–132, 165 Staatenverbund Meaning 30, 82–83, 248, 251, 267 Stakeholder participation see Institutional and procedural reform proposals Standing see Federal Constitutional Court; Hungarian Constitutional Court; Polish Constitutional Tribunal

State liability Judges, of 94, 233, 321–323 State under the rule of law 7–8, 15, 28, 56–58, 62, 67, 71–73, 77, 81, 94, 116, 122, 127, 131, 135, 139, 145–150, 153–155, 186, 188–189, 202, 212–215, 217–218, 220, 224, 235–236, 243, 249–250, 271, 278, 289, 293, 311–312 Germany 67, 71–73, 77, 81, 94, 116, 122, 127, 131 Hungary 135, 139, 145–150, 153–155, 186, 188–189, 202 Poland 212–215, 217–218, 220, 224, 235–236, 243, 249–250 Sui generis nature EU law, of 14, 308 national court acceptance, of 162, 174 Supremacy of EU law Constitutional courts acceptance 84–99, 159–177, 226–239 limitations 99–129, 177–200, 239–264 Court of Justice perspective 7, 15–18, 24, 36, 242, 275–276, 285–293, 298, 301, 310 Limitations to competences 99–129, 177–200, 239–264 fundamental rights 69–71, 75–77, 144–145, 150–153, 209–210, 217–220 Priority application, of 85–88, 159–165, 168, 194, 201, 227–231, 241–242, 245, 279, 285 validity, of 85–86, 228, 279 Sovereignty, national essential core of 22, 29–30, 36, 38–39, 44, 65–66, 71–77, 84, 129–133, 137–138, 141, 145–152, 202, 206, 210–220, 224, 226 limitations to 99–129, 177–200, 239–264 Transfer of law Between legal systems constitutional drafters, by 54–61 judges, by 32–40, 52–54, 61–63 historical perspectives 45–52 Transfer of sovereignty see Sovereignty (Transfer of exercise of) Transjudicial communication 7–8, 19, 30–32, 36–39, 63, 91, 129, 289–290, 303, 306–308, 318–319, 326–327 Treaties Accession, of Hungary 153, 157, 161–162, 187, 192, 194, 197 Poland 206, 222–224, 227, 230–231, 233–234, 238–245, 264–266, 276–277, 281 Lisbon Treaty Germany 7, 11, 18, 20, 22, 28, 30, 40, 66–67, 80, 82–84, 87, 92–93, 99, 103, 106–113, 115–117, 119, 121, 130–133, 169, 179, 181, 186, 189–190, 200–202, 225–226, 248–252,

index375 265, 267, 272, 276–279, 281, 302–303, 308–309 Hungary 22, 132, 173, 184, 186–188, 190, 198–199, 202–203, 272, 276, 278, 281 Poland 186, 200, 245–252, 276–278, 281 Maastricht Treaty Germany 9–10, 30, 35, 81–83, 92, 99, 102–108, 110–111, 115, 119–120, 129–133, 272, 278, 282, 309 Hungary 160, 169, 178–179, 181, 190, 201–202 Poland 225–226, 232, 245, 248, 251, 265, 267

Review of 99–121, 136, 142, 154, 160–162, 177–190, 197, 199, 205, 239–252, 255 Ultra vires review 92–93, 98, 100, 103, 106, 110–114, 133, 181, 189–190, 202, 225–226, 277–278, 280, 309 Verfassungskern Meaning 24–30 Veto-players Constitutional court judges 269–271 Vote Right to 27, 106–108, 116, 120, 132, 134