Matej Accetto University of Ljubljana Faculty of Law, 27 October 2008 The Political Limitations of the European Community and the EU Supranational Legal Order Matej Accetto University of Ljubljana Faculty of Law, 27 October 2008

What is the meaning of the term “European”? Commission paper The Challenge of Enlargement (prepared for the 1992 Lisbon European Council): “[The term “European”] combines geographical, historical and cultural elements which all contribute to European identity. The shared experience of proximity, ideas, values, and historical interaction cannot be condensed into a simple formula, and is subject to review by each succeeding generation.”

Why does the notion of what is “European” matter? Article 237 of the EEC Treaty: “Any European State may apply to become a member of the Community. […]” Article O of the EU Treaty (Maastricht): “Any European State may apply to become a Member of the Union. […]”

European Union as a union of “European” identity and values Article 49 of the EU Treaty (Amsterdam): “Any European State which respects the principles set out in Article 6(1) may apply to become a member of the Union. […]” Article 6(1) EU: “The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.”

Article 6(1) TEU: The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States. Article 11 TEU (CFSP): The Union shall define and implement a common foreign and security policy covering all areas of foreign and security policy, the objectives of which shall be: — to safeguard the common values, fundamental interests, independence and integrity of the Union in conformity with the principles of the United Nations Charter, — […] — to develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms. Article 2 TCE and 2 Lisbon TEU: The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail. Article 292(1) TCE (CFSP) and 21(1) Lisbon TEU: The Union's action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law.

European Union as a union of “European” identity and values Article 49 of the EU Treaty (Amsterdam): “Any European State which respects the principles set out in Article 6(1) may apply to become a member of the Union. […]” Article 6(1) EU: “The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.”

The “Copenhagen” Accession Criteria Conclusions of the Copenhagen European Council (1993): “Membership requires that the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities, the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union. Membership presupposes the candidate's ability to take on the obligations of membership including adherence to the aims of political, economic and monetary union.”

The sideways between Copenhagen and Amsterdam Copenhagen political criteria for candidate countries: “[S]tability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities”. Article 6(1) EU: “The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.”

The sideways between Copenhagen and Amsterdam - continued A footnote in Commission’s regular reports of 2002 on the candidates’ progress towards accession: “The political criteria defined at Copenhagen have been essentially enshrined as a constitutional principle in the Treaty on the European Union.” Three likely related reasons for the Treaty omission: No internal consensus (or indeed a debate at all) within the existing EU members on minority issues. Largely varying practices and not an issue that would be of high internal EU priority. Definitional problems.

Reasons for the introduction of EU norms on minority rights for Central and Eastern Europe in the 1990s earnest humanitarian motives test of political maturity wider implications (refugees, instability in the region) fear of resulting havens of lawlessness The real question: the quest for the right terminology (definition) and viable (legal) standards.

Sunrise of supranationalism Schuman Declaration: “… The common High Authority entrusted with the management of the scheme will be composed of independent persons appointed by the governments, giving equal representation. A chairman will be chosen by common agreement between the governments. The Authority's decisions will be enforceable in France, Germany and other member countries. …”

Supranationalism: the first prong 26/62, Van Gend en Loos, [1963] ECR 3: “… the task assigned to the Court of Justice under Article 177 [now 234], the object of which is to secure uniform interpretation of the treaty by national courts and tribunals, confirms that the States have acknowledged that Community law has an authority which can be invoked by their nationals before those courts and tribunals . The conclusion to be drawn from this is that the Community constitutes a new legal order of international law for the benefit of which the States have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals.”

Supranationalism: the second prong 6/64, Costa v. ENEL, [1964] ECR 1194: “The integration into the laws of each Member State of provisions which derive from the Community, and more generally the terms and the spirit of the Treaty, make it impossible for the States, as a corollary, to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on a basis of reciprocity. Such a measure cannot therefore be inconsistent with that legal system.”

The magical formula of supranationalism Direct Effect + Supremacy = Supranational Legal Order But… enter the Member States! (starring the German Federal Constitutional Court)

For as long as… take 1 Internationale Handelsgesellschaft (Solange I), BVerfGE 37, 271 (1974): As long as the integration process has not progressed so far that Community law receives a catalogue of fundamental rights decided on by a parliament and of settled validity, which is adequate in comparison with the catalogue of fundamental rights contained in the Basic Law, secondary Community law will still be reviewed according to standards of the Basic Law.

The original position of the ECJ 1/58, Stork v. High Authority, [1959] ECR 43: …Under Article 8 of the Treaty the High Authority is only required to apply Community law . It is not competent to apply the national law of the Member States. ... Consequently, the High Authority is not empowered to examine a ground of complaint which maintains that, when it adopted its decision, it infringed principles of German constitutional law.

The position reinforced 36, 37, 38 in 40/59, Gaitling v. High Authority, [1960] ECR 423: … Moreover Community law, as it arises under the ECSC Treaty, does not contain any general principle, express or otherwise, guaranteeing the maintenance of vested [human] rights.

And then the quiet shift 29/69, Stauder, [1969] ECR 419: … Interpreted in this way the provision at issue contains nothing capable of prejudicing the fundamental human rights enshrined in the general principles of Community law and protected by the Court.

And yet five years later the Germans say solange – so what is the problem? The difficult truths about human rights: No human right is absolute Limited with the rights of others Content (or scope) based on societal arrangements Difficult to compare different standards

For as long as… take 1 Internationale Handelsgesellschaft (Solange I), BVerfGE 37, 271 (1974): As long as the integration process has not progressed so far that Community law receives a catalogue of fundamental rights decided on by a parliament and of settled validity, which is adequate in comparison with the catalogue of fundamental rights contained in the Basic Law, secondary Community law will still be reviewed according to standards of the Basic Law.

For as long as… take 2 Wunsche Handelsgesellschaft (Solange II), BVerfGE 73, 387 (1986): As long as the European Communities, in particular European Court case law, generally ensure effective protection of fundamental rights … which is to be regarded as substantially similar to the protection of fundamental rights required unconditionally by the Constitution … the Federal Constitutional Court will no longer exercise its jurisdiction to decide on the applicability of secondary Community legislation … and no longer review such legislation by the standard of the fundamental rights contained in the Basic Law.

The real show of power Maastricht-Urteil, BVerfGE 89, 155 (1993): The sui generis nature of EU accepted but limited by “the constitutional principles and fundamental interests of the Member States” who remain “the Masters of the Treaties” with the authority to decide on their content, new accessions to them and ultimately even on the termination of the treaties.

Has it already been that long? C-144/04 Mangold: the issue: the principle of non-discrimination in respect of age the stage: a 2000 EU non-discrimination directive and a 2002 German law on unrestricted fixed-term employment after the age of 52 the possible villain: the European Court of Justice the possible hero: the German Federal Constitutional Court