Transcript Constitutional identity of a Member State in EU law

Constitutional identity of a
Member State in EU law
Łukasz Stępkowski
Katedra Prawa Międzynarodowego i Europejskiego
Uniwersytet Wrocławski
Izba Adwokacka we Wrocławiu
the concept of a constitutional identity in EU law
• The notion of „national identities of Member States the EU shall respect” has
been present since the Treaty of Maastricht (ex art. F-1/6 para. 3 TEU), yet it has
not been accorded a great amount of attention either by way of secondary
legislation, or any voluminous ECJ/CJEU jurisprudence
• EU law scholars have told of either „national” or „constitutional” identity only
sparingly, and the CJEU would only mention it in passing (eg. in case C-473/93,
Commission of the European Communities v Grand Duchy of Luxemburg, 2 July
1996
•
•
Or, no mention was made at all – in its first edition (1995) of the monograph on EU law,
Craig and de Búrca omitted the idea altogether
the difference of wording has been largely ignored, and „national” and
„constitutional” identity has been used interchangeably, as per M. P. Maduro’s
opinion, delivered at 20 September 2005 in C-53/04 Cristiano Marrosu and
Gianluca Sardino v Azienda Ospedaliera Ospedale San Martino di Genova e
Cliniche Universitarie Convenzionate, where the AG spoke of „constitutional
identity of the Member States which the European Union has undertaken to
respect”, referring to art. 6 para.3 TEU
the current Treaty foundations and content of the principle
• The ToL has changed art. 6 para. 3 TEU to what is now art. 4 para. 2 TEU:
• The Union shall respect the equality of Member States before the Treaties as
well as their national identities, inherent in their fundamental structures,
political and constitutional, inclusive of regional and local self-government. It
shall respect their essential State functions, including ensuring the territorial
integrity of the State, maintaining law and order and safeguarding national
security. In particular, national security remains the sole responsibility of each
Member State.
• As seen above, the
written content of the „respect” in question has been
expanded, adding that „essential State functions” are to be respected as well
• Over time, the Court’s case-law has been updated further as to the concept of
„constitutional identity”,and it has been suggested that „the European Union is
obliged to respect the constitutional identity of the Member States. That
obligation has existed from the outset (…) The national identity concerned
clearly includes the constitutional identity of the Member State (AG Maduro,
case C-213/07, 8 October 2008, Michaniki AE)”
State of play
•
•
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As of now, the law of the EU appears to be in a phase of what is called a „merger”
within a system of the shared exercise of sovereignty (Hofmann, Rowe, Türk,
Administrative Law and Policy of the EU, p. 925-926, Oxford 2011), not in a
„superimposition” of it over national legal orders
This „merger” has been considered both from a perspective that the current EU
treaties form nothing short of a constitutional set of norms, and from a classic
standpoint of public international law (see Mayer, Wendel in Avbelj, Komárek (eds),
Constitutional Pluralism in the EU and Beyond, p.149, 2012)
Additionally, there are views that the coexistence of EU and national law is far from
consonant, but can be explained by the simple plurality of law that is not
necessarily unified in substance (Barents, Fallacy of Multilevel Constitutionalism,
Constitutional Pluralism…,p. 166); far from unity, EU and national law are in a state
of competition, or even an incoming war (p. 179)
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•
The less alarmist views speak of simple limitation of consonance, as a legal expression
(Bogdandy, Principles of EU Constitutional Law, p. 40, 2010)
In this legal dimension, it is for this paper to outline the moves made by the CJEU,
which serves as a chief spokesperson for the content of the principle in question,
fashioning just how much respect the EU ought to have…
jurisprudence of the Court
• First attempt at preliminary reference under new TEU : Case C-3/10 Franco
Affatato v Azienda Sanitaria Provinciale di Cosenza, Azienda Sanitaria n.
3 di Rossano, order of 1 October 2010 : the CJEU does not accord any
added value to the national court’s question of art. 4.2 TEU
• The
CJEU refers the case back with guidance of the principles of
equivalence and effectiveness
• Second attempt at a preliminary reference : Judgment of the Court
(Second Chamber) of 22 December 2010, Case C-208/09 Ilonka SaynWittgenstein v Landeshauptmann von Wien
• Concerning a national norm of constitutional nature
• The constitutional identity used expressly by a Member State (para. 74)
to justify a restriction on a freedom of movement
• Commission contends that „constitutional history” may be taken into
account (para. 80)
• The
CJEU confirms that 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
• Justification deemed proportionate
jurisprudence of the Court (again)
• Attempts at a Member State defence under art. 4.2 TEU : Judgment of the Court
(Grand Chamber) of 24 May 2011, C-51/08 European Commission v Grand Duchy
of Luxemburg
•
As to the need relied on by the Grand Duchy of Luxembourg to ensure the use of the
Luxemburgish language in the performance of the activities of notaries, it is clear that the
first head of claim in the present dispute relates exclusively to the nationality condition at
issue. While the preservation of the national identities of the Member States is a legitimate
aim respected by the legal order of the European Union, as is indeed acknowledged by Article
4(2) TEU, the interest pleaded by the Grand Duchy can, however, be effectively safeguarded
otherwise than by a general exclusion of nationals of the other Member States (see, to that
effect, Case C-473/93 Commission v Luxembourg [1996] ECR I-3207, paragraph 35)
• Proportionality not satisfied
jurisprudence of the Court (and again)
• Judgment of the Court (Second Chamber) of 1 March 2012, Case C-393/10
Dermod Patrick O’Brien v Ministry of Justice
• An attempt by the Latvian Government’s argument to posit that the
application of European Union law to the judiciary has the result that the
national identities of the Member States are not respected, contrary to
Article 4(2) TEU (unsuccessful)
• The CJEU again does not delve into any in-depth consideration („cannot
have any effect on national identity”, para. 49)
jurisprudence of the Court (one more time)
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Judgment of the Court (Second Chamber) of 12 May 2011.
Case C-391/09 Malgožata Runevič-Vardyn and Łukasz Paweł Wardyn v Vilniaus miesto savivaldybės
administracija and Others – spelling of surnames
According to several of the governments which have submitted observations to the Court, it is
legitimate for a Member State to ensure that the official national language is protected in order to
safeguard national unity and preserve social cohesion. The Lithuanian Government stresses, in
particular, that the Lithuanian language constitutes a constitutional asset which preserves the nation’s
identity, contributes to the integration of citizens, and ensures the expression of national sovereignty,
the indivisibility of the State, and the proper functioning of the services of the State and the local
authorities (…) Article 4(2) EU provides that the Union must also respect the national identity of its
Member States, which includes protection of a State’s official national language
It follows that the objective pursued by national rules such as those at issue in the main proceedings,
designed to protect the official national language by imposing the rules which govern the spelling of
that language, constitutes, in principle, a legitimate objective capable of justifying restrictions on the
rights of freedom of movement and residence provided for in Article 21 TFEU and may be taken into
account when legitimate interests are weighed against the rights conferred by European Union law.
Measures which restrict a fundamental freedom, such as that provided for in Article 21 TFEU, may,
however, be justified by objective considerations only if they are necessary for the protection of the
interests which they are intended to secure and only in so far as those objectives cannot be attained by
less restrictive measures (see Sayn-Wittgenstein, paragraph 90 and the case-law cited)
Guidance judgment : EU law does not preclude protection of specific spelling, if proportionate
jurisprudence of the Court (last)
• Judgment
of the Court (Grand Chamber) of 4
C-300/11 ZZ v Secretary of State for the Home Department
June
2013.
• Member
State plea of inadmissibility : State security remains the
responsibility of solely the Member States. The question referred thus
relates to an area governed by national law and, for that reason, does not
fall within European Union competence
• CJEU’s response : although it is for Member States to take the appropriate
measures to ensure their internal and external security, the mere fact that
a decision concerns State security cannot result in European Union law
being inapplicable
• Additionally, plea of national security does not void a person’s rights of
defence under EU law
opinions of the Court’s Advocates General
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Opinion
of
Mr
Advocate
General
Jääskinen
delivered
on
12
July
2012.
Case C-202/11 Anton Las v PSA Antwerp NV : para. 59 : National identity, which the EU institutions are obliged to
respect under Article 4(2) TEU, includes linguistic aspects of a constitutional nature of a Member State which lay
down, inter alia, the official language or various official languages of the State and, where appropriate, the
territorial subdivisions in which the various official languages are in use. (37) The concept of ‘national identity’
therefore concerns the choices made as to the languages used at national or regional level (…)
Opinion
of
Advocate
General
Kokott
delivered
on
30
May
2013.
Case C-151/12 European Commission v Kingdom of Spain : para. 34 : The possibility cannot be ruled out that EU law
may [due to art. 4(2) TEU], in federal or decentralised systems, be transposed through the subsidiary application of
national rules is not precluded
Opinion
of
Mr
Advocate
General
Bot
delivered
on
2
October
2012.
Case C-399/11 Stefano Melloni v Ministerio Fiscal : para. 138 : I do not overlook the fact that the European Union is
required, as Article 4(2) TEU provides, to respect the national identity of the Member States, ‘inherent in their
fundamental structures, political and constitutional’. (45) I also note that the preamble to the Charter points out
that, in its action, the European Union must respect the national identities of the Member States. A Member State
which considers that a provision of secondary law adversely affects its national identity may therefore challenge it
on the basis of Article 4(2) TEU
Opinion of Advocate General Torresi delivered on 10 April 2014 : Cases C-58/13 and C-59/13 Angelo Alberto Torresi :
Pytanie drugie, które CNF przedkłada na wypadek, gdyby odpowiedź na pytanie pierwsze była twierdząca,
sprowadza się do tego, czy art. 3 dyrektywy 98/5 jest nieważny ze względu na naruszenie art. 4 ust. 2 TUE, zgodnie z
którym Unia zobowiązana jest do szanowania tożsamości narodowej państw członkowskich nierozerwalnie
związanej z ich podstawowymi strukturami politycznymi i konstytucyjnymi. Nie jest dla mnie jasny powód, dla
którego przyjmowanie do izby adwokackiej obywateli Unii, którzy uzyskali tytuł zawodowy w innym państwie
członkowskim, stanowić by miało takie zagrożenie dla włoskiego porządku prawnego, że można by uznać, iż
podważa to włoską tożsamość narodową. W tym względzie prawdą jest, że Trybunał w pewnych szczególnych
okolicznościach ze względu na ochronę tożsamości narodowej dawał państwom członkowskim możliwość
odstąpienia od obowiązków nałożonych przez prawo Unii, takich jak poszanowanie fundamentalnych wolności. Nie
oznacza to jednak, że jakiekolwiek postanowienia zawarte w konstytucji narodowej mogą ograniczać jednolite
stosowanie przepisów prawa Unii, czy stanowić parametr legalności tych przepisów [NOT AVAILABLE IN ENGLISH].
Concluding remarks
Constitutional / national identity under new TEU :
• Substantive obligation to respect on part of the EU
• Not a point-blank denial of action for the EU due to a supposed lack of
competence
• A theoretically valid defence plea when derogating from fundamental
freedoms (imperative requirement), subject to proportionality
• Court of Justice still unwilling to delve deeper into the content of that
principle
Thank you for your attention