Rise of European Supranationalism

Matej Accetto

ECL, 27 October 2010

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 treateies.

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