Transcript Zasebnost na delovnem mestu v informacijski dobi

The Political Limitations of the European
Community and the EU Supranational
Legal Order
Matej Accetto
University of Ljubljana Faculty of Law,
27 October 2009
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:
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
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