Constitutional Resistance in the EU: A Proposal for a ‘Declaration of Incompatibility’

Case K 3/21 of the Polish Constitutional Tribunal is the most recent and extreme example of the increasing trend of resistance to the primacy of EU law. This paper argues that it is now necessary to recognise and address this phenomenon in order to preserve the EU constitutional order. A new mechanism allowing national apex courts to make a declaration of incompatibility of EU law with national constitutional identity is proposed, drawing inspiration from section 4 of the UK Human Rights Act 1998. This provision seeks a similar squaring of the circle between upholding European legal obligations and preserving Parliamentary Sovereignty. The proposal for a ‘declaration of incompatibility’ mechanism is presented not only in contrast to the arguments of EU law ‘supremacists’ that, in such a situation, a Member State should either amend its constitution or withdraw from the EU, but also to create practicable pathways for the amendment of national or EU law in response to such resistance.

References to Decisions of the European Court of Justice and the European Court of Human Rights within the Jurisprudence of the German Federal Constitutional Court.

The German FCC is well-known for its frequent use of self-references. Though FCC precedents have no legally binding effect in general, its decisions have a binding effect erga omnes and hence have an enormous significance for national legal practice, including the application of European law in Germany. In view of the FCC’s integration into the entire network of European constitutional courts, its relationship to two other European courts – the ECJ and the ECtHR – remains particularly important. This contribution will focus on how the FCC deals with the case law of the aforesaid courts. How does the referencing of European decisions differ from that of self-references? What is its primary role or function in the FCC’s reasoning? Secondly, what is the constitutional relevance of ECJ and ECtHR precedents? Do they carry the same weight as the FCC’s own decisions? Finally, what can all of the above tell us about the current state of the judicial dialogue and cooperation in Europe?

The story of lost chances but not lost hope: Towards a sequential model of adjudication on Art 4(2) TEU claims in EU law

This presentation will outline an alternative mechanism for adjudicating Art 4(2) TEU and ultra vires claims in EU law. It will offer what I call a sequential (as opposed to hierarchical) model of adjudication thereof. I will argue that the recent national and CJEU judgments have ultimately failed to follow the proposed approach, but still show some potential for its future application. My idea is to make use of Art. 267 TFEU in a way that would allow MS courts to offer a clear interpretation of what and why they consider to be part of a particular national constitutional identity, and an explanation as to why such identity is irreconcilable with the EU norm in question. This would shift the centre of gravity away from the evergreen dispute over “the last word” to “the first word” in this judicial dialogue. Although not a panacea for all potential conflicts, I argue that the proposed sequence of adjudication will help prevent or mitigate many disagreements over these contested issues.

The Function of the Concept of the Autonomy of the EU Legal Order in the Jurisprudence of the European Court of Justice

A lot has been written about the concept of the autonomy of the EU legal order. This presentation will focus on the inner dimension of autonomy, i.e., the relationship between the EU and national legal orders. I argue that this inner autonomy of EU law is not operationalized to solve the case at hand, but mostly functions as a supporting argument for rules leading to the outcome of the case, such as primacy or the requirements of the preliminary reference mechanism. A contextual reading of these cases reveals that they often react to threats to fundamental tenets of EU law originating in the Member States. In those cases, autonomy is typically used to protect the functioning and integrity of the EU’s composite legal system. Autonomy’s function is therefore to flag and to communicate red lines, operating as a functional equivalent to national constitutional identity claims. The presentation will exemplify this by looking at recent cases on the rule of law crises in Poland and Romania.

Recent Authority Conflicts between the Court of Justice of the European Union and EU Member State Constitutional Courts

This presentation will look at the recent instances of conflicts of authority between the CJEU and EU Member State constitutional courts. Beginning with the (in)famous PSPP decision of the German FCC, I will focus on its aftermath in Germany, and similar developments in Poland and Romania. Yet, rather than rehearsing the evergreen debate over the supremacy of EU law and its potential limits, I intend to examine what the above-outlined judicial conflicts and decisions can tell us about the current state of the European legal ordering, and the competing visions and understandings of the EU’s authority and legitimacy advanced therein. My key hypothesis is that — though certainly exacerbated by the current wave of populism, Euro-skepticism, and the EU rule of law crisis — the analyzed conflicts cannot be explained away by pointing to the latter phenomena. Rather, they reflect some more fundamental disagreements about the conditions and telos of the EU “integration through law” project.