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Constitutionalism Beyond the State

September 2016

In book: National Sovereignty in the European Union (pp.7-44)

Authors:

Palacký University Olomouc

The supranational character of the European Union or supranationality itself represents a methodological basis for EU constitutionalization. This model of cooperation manifests the utilitarian and functionalist understanding of European integration, which emphasizes the efficiency of achieving the outlined goals of cooperation (Craig, The evolution of EU law. Oxford University Press, New York, 1999). This concept favours decision-making and the regulation of specific activities, which are confined to an independent administration, which unlike political representation, can more rapidly and effectively react to emerging problems, and to common desires of all involved entities.

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123

S P R I N G E R BRIEFS IN L AW

OndrejHamuľák

National

Sovereignty in

the European

Union

View from the

Czech Perspective

Chapter 2

Constitutionalism Beyond the State

2.1 Supranationality as a Womb of Post-Westphalian

Deconstructions

The supranational character of the European Union or supranationality itself rep-

resents a methodological basis for EU constitutionalization. This model of coop-

eration manifests the utilitarian and functionalist understanding of European

integration, which emphasizes the efﬁciency of achieving the outlined goals of

cooperation (Craig 1999). This concept favours decision-making and the regulation

of speciﬁc activities, which are conﬁned to an independent administration, which

unlike political representation, can more rapidly and effectively react to emerging

problems, and to common desires of all involved entities. The formation of

supranational blocs not only helps to solve internal/mutual problems of the par-

ticipating states, but later it also becomes a consolation and means of confronting

the challenges of globalization (Holländer 2009).

The choice of the supranational method for the re-start of cooperation in

post-war Europe was based on the suppression of the logic of sovereign equality of

states—one of the basal principles of public international law.

Supranational

This principle was articulated by the Allies as a basis of post-war order of international relations

at the Moscow conference in October 1943, and after WW2 it was mentioned in the United

Nations Charter (article 2 paragraph 1). States are formally equal without prejudice to real power

relations and power distribution (military, economic and technical). Under sovereign equality,

nation states remain sovereign actors of the international community. There is no power that would

be superior to them, thus, no nation state can be forced to accept the binding effect of legal acts,

which the nation state did not participate on or did not agree with. We can observe a certain

paradox here. Even if we consider sovereign equality as just a different name for national

sovereignty, the establishment of international institutions and organizations makes its formulation

problematic, and its preservation threatens their existence. Hans Kelsen presented a contemporary

(and critical) analysis of the sovereign equality principle, where he highlighted the problem of

combining sovereign equality (which expected nation states to remain sovereign) with the actual

practice of international organization’s jurisprudence (Kelsen 1944).

©The Author(s) 2016

O. Hamuľák, National Sovereignty in the European Union,

SpringerBriefs in Law, DOI 10.1007/978-3-319-45351-4_2

ondrej.hamulak@upol.cz

cooperation negates this principle by several special features. Most visible is the

introduction of the qualiﬁed majority voting in the Council in connection with the

general binding force of decisions for all Member States. This could lead to a

situation when a Member State is bound by legal acts even if it did not vote in

favour of, or even it explicitly disagreed with, which violated the formal equality of

all voting countries. Furthermore, sovereign equality was affected by the estab-

lishment of an autonomous Court, which has obligatory jurisdiction in some

speciﬁed areas and which is authorized to review the compliance of Member States’

behaviour with the demands of supranational law. Three basal instruments which

helps the Court of Justice to enforce EU law are: the judicial discourse, binding

judgements, and sanction-threats speciﬁed by article 260 of the Treaty on the

Functioning of the European Union (Panke 2010). Finally, the traditional position

of Member States is also affected by introduction of special responsibility regime

that helps to enforce obligations that stemmed from EU membership to the states—

these were on one hand the doctrine of Member States’duty to pay compensation to

individuals that suffered a loss due to the state’s violation of EU law (Aalto 2011) as

well as introduction of the special judicial procedure concerning the breaches of

EU law by the Member States—infringement procedure according to article 258

TFEU—where Commission (as representative of supranational power) serves as the

main prosecutor.

As a result, the supranational organization competes with its forming blocs—the

national states. The EU is perceived as a mixed structure surpassing the deﬁnition of

a traditional international organization, and combining features of federation and

confederation—it has jurisdiction and the power to legal regulation in certain areas

in all EU Member States; it uses the concept of divided competences of Member

States (units) and the EU (whole); it has the contractual foundations and holds the

subjectivity; and it has an autonomous set of own institutions (Wintr 2004).

European Communities and later European Union hold a sufﬁcient autonomy and

space to comprehensively and without interference of Member States (or occa-

sionally even without their approval) manage affairs falling under its competences.

The supranational organization—a legal subject separate and independent of its

founding members—is positioned to certain extent ‘above’its Member States. This

‘superiority’towards Member States manifests itself in all stages of the law-making

process, and in the process of application of EU law. As a result, the law-making

institutions are independent, they have autonomous decision-making powers, they

independently execute individual decisions and accomplish objectives, which they

have deﬁned, and ﬁnally EU law affects the legal status of individuals, who can be

awarded the rights or prescribed duties based on a supranational legal regulation

(Lenaerts and Van Nuffel 2005). The European Union is endowed with a com-

prehensive institutional, political and legal system, which likens it to a state and

represents a constitutional framework for its operation.

The supranational impetus associated with the creation of European

Communities and the evolution of the integration leads us to some theoretical

assumptions according to which international law in European region has entered

into post-Westphalian period (MacCormick 1999; Jakab 2006). This means the

8 2 Constitutionalism Beyond the State

ondrej.hamulak@upol.cz

necessity of rejection of the classical conception of the state sovereignty (indivis-

ible, exclusive, highest power) and acceptance of some supranational political and

legal will. I pay further attention to this phenomenon in the next chapters of this

volume.

European integration is something like planed and controlled deconstruction of

the content of the sovereignty of Member States. This phenomenon then logically

opens the debate about the nature of European Union itself. The central point of this

debate is the question whether the European Union is on the track to be a state-like

organization? I am not going to claim that European Union is a ‘super-state’which

replaced or is replacing the Member States. But on the other side one have to accept

that European Union is an autonomous entity, the original political structure which

has its own efﬁcient construction of the internal organization and distinctive goals

and instruments leading to them.

2.2 The Complex Story of EU Constitutionalization

European integration transfers authority from Member States towards the supra-

national centre (Agnew 2009). This is the main building bloc of EU’s own con-

stitutional story. Why do I speak about a story rather than a system? I believe that

the term ‘story’better describes the speciﬁcs of the EU integration model, its

openness, constant changes, and doctrinal un-restrictiveness. EU constitutional-

ization and its constitutional matrix might be better understood as a narrative rather

than an exact formula. The story is a complex phenomenon. Here, the term com-

plexity manifests itself in both its linguistic meanings

; referring to its complicated

internal structure (involving many different related fragments), and to certain level

of incomprehensibility, which makes our understanding of this phenomenon more

intricate. The constitutionalization of the European project has certain quantitative

dimension (formal constitutional law)—its structures, systems of operation, and

performed duties are constantly closer to the systems of the inner organization of

nation states (Forejtová2011). But it has also some qualitative dimension (material

constitutional law) while it is acquiring a constitutional character in terms of a

system of governance respecting rule of law, democratic principles and the invio-

lability of an individual’s personal spheres. A large variety of texts examining EU

constitutionality almost unanimously assume that its basis lies in some autonomous,

internally organized structure of norms, relationships and principles without the

existence of a written constitution (Weiler 1999; Rosas and Armati 2010).

The unique characteristic of the Union gives rise to the notion of constitutional

movement which accompanies the European integration. ‘Constitutionality’,

‘Constitutional Law’,‘Constitutional System’—all these terms currently exceeds

See the entry ‘complex’in the online version of Cambridge English Dictionary (http://dictionary.

cambridge.org/dictionary/british/).

2.1 Supranationality as a Womb of Post-Westphalian Deconstructions 9

ondrej.hamulak@upol.cz

beyond the borders of national states (De Búrca and Weiler 2012) and thus cannot

be regarded as sole objectives of the national law and jurisprudence. Certainly there

is no classical original pouvoir constituant behind the creation of the European

Union. But this claim does not contest the fact that the integration entities display

characteristics of a distinct constitutional system. The evidence of existence of such

system may be found in the speciﬁc structural elements that differentiates the

European Union from the traditional international organizations.

We may ﬁnd the social/institutional, normative and also material/meta-legal

arguments in favour of assertion that European Union has its own substantive

Constitution.

European Union has its own internal organization of relations between main partic-

ipating players (European Union and its Member States), between institutions of the

Union andbetween Union and the individuals/citizens of the Union. Here the assertionof

material constitutionality should sound like this: Where autonomous society exists, i.e.

some political and societal structure, there is a Constitution. The classic Latin maxim Ubi

societas ibi ius is transferred to the constitutionallevel here. This approach to the material

meaning of constitution is adhered to the theory of state of Georg Jellinek.

Another point is connected with the ability of the Union to manifest its own will

by the adoption of law (Forejtováand Tronecková2011) and making of admin-

istrative decisions. The Union has its own independent legal framework that lays

down rules of adoption of binding provisions. These provisions express the Union

powers in the outer world and they are internally applicable within the Member

States practice. The autonomous legal system give rise to the Kelsen’s argument

which should sound like this: Where a law is present, i.e. autonomous legal system

is working, there is a Constitution.

The last argument is connected with allegation according to which, where a rule

of law (i.e. democratic system based on the rule of law and protection of the fun-

damental rights) is respected there is a Constitution. Here, the role of mechanisms of

promotion and respecting the fundamental rights is crucial without any doubts.

The key role in determining the contours of the constitutionality of the European

Union was and still is played by the Court of Justice of the European Union. The

Court supported its quest for understanding the EU law as an autonomous con-

stitutional system also by some semantic turnovers. In judgment Les Verts

Opinion on the EEA Treaty

it expressly referred to the Treaty as constitutional

charter of the integration entities (Lenaerts 2010). It repeated this argument and the

crucial requirement which rises from it (that the [Union] is based on the rule of law,

inasmuch as neither its Member States nor its institutions can avoid review of the

conformity of their acts with the basic constitutional charter, the Treaty) also in

more recent constitutional ‘hard cases’Kadi

and Opinion on Agreement on

Les Verts v Parliament, 294/83, ECLI:EU:C:1986:166.

Opinion on the EEA Treaty, 1/91, ECLI:EU:C:1991:490.

Kadi and Al Barakaat International Foundation v Council and Commission, C-402/05 P and

C-415/05 P, ECLI:EU:C:2008:461.

10 2 Constitutionalism Beyond the State

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Accession to the ECHR.

The Court of Justice furthermore promoted independence

and some practical domination of European Union law as a prerequisite for the

functionality of the entire project of European integration. It served as the agent of

emancipation of supranational law and supranational entities.

And it was the Court

itself who played the pioneer role within the notion of respecting the fundamental

rights as general principles within the supranational legal and political structure (de

Witte 1999).

It is a fact that European Union lacks a written constitution. The attempt for its

‘documentary constitutionalisation’

connected with the draft Treaty Establishing a

Constitution of Europe has failed.

Notwithstanding that the theory of EU law and

the Court of Justice does use the term ‘constitution/constitutional Charter’without

any doubts. EU is a sovereign polity with its own (even though not speciﬁcally

designated) constitution, because it has its own system of legal rules, which regulate

its objectives, institutional competences, and individual rights, while establishing

the nature of the relationship between the centre, i.e. EU and its units, i.e. Member

States (Leczykiewicz 2009). Having in mind the complex sum of arguments

mentioned above the existence of the Constitutional system of the European Union

is a hardly contestable phenomenon. Of course it goes about the constitutionality in

the substantive sense of the word, the constitutionality based on principles, a

separation of powers and the human rights protection system, i.e. a respected

constitutionality and not one which was formally enacted or literally stated.

2.3 The Democratic Arrangement of the Internal

Functioning of the EU

The constitutional system and the constitutional law of the European Union predict

the existence of fundamental rules of organization of social structures. It indicates

that the Union may be foreseen as a legal community, an equivalent of the rule of

law-based state. It is a constitutional structure of a kind which acts, behaviours and

is regulated by the set of rules which have its own democratic ethos. The biggest

Opinion on the Agreement on Accession of the European Union to the European Convention for

the Protection of Human Rights and Fundamental Freedoms, 2/13, ECLI:EU:C:2014:2454.

This is playing the role of “Constitutional Court of the European Union.”See Lenaerts and Van

Nuffel (2011, p. 22).

A term used to describe the process of drafting and adopting of the Treaty Establishing a

Constitution of Europe by Matej Avbelj and Jan Komárek (Avbelj and Komárek 2012).

Treaty Establishing a Constitution of Europe was prepared between February 2002 and July 2003.

It was signed by all Member States during an intergovernmental conference in June 2004. As well

known, the ratiﬁcation process ended after it was rejected by a referendum in France and the

Netherlands (2005).

2.2 The Complex Story of EU Constitutionalization 11

ondrej.hamulak@upol.cz

shift towards democratic symbolism is connected with the Lisbon reform of primary

law. Restructuring the EU, or rather its internal uniﬁcation and simpliﬁcation,

represents the historically largest broadening of the EU’s material competences.

Apart from the signiﬁcant changes such as the uniﬁcation of the Union’s pillar

structure, gaining legal subjectivity to the EU and general simpliﬁcation of the

integration entities by replacing the Community with a Union, the Treaty of Lisbon

introduced many changes and novelties, which aimed at further establishing the

supranational character of the EU, strengthening its legitimacy in the eyes of the

internal subjects, i.e. Member States and individuals, increasing the effectiveness of

the decision-making process, securing internal security of the Union, and increasing

its importance in the international arena (Craig 2010).

The arrangement of the EU after Lisbon further strengthens the supranational

elements of integration. The most systemic factors in this regard (which lead

towards central governance, politically unify the EU and support its federal ten-

dencies) are: the new system of division of competences (article 2–3 TFEU),

introduction of the so-called passerelle clause (article 48 paragraph 7 TEU) or the

extension of applicability in case of the ﬂexibility clause (article 352 TFEU).

Other features increase the democratic legitimacy and accountability of the EU

and strengthen the ties between EU and individuals. Treaty of Lisbon made binding

the Charter of Fundamental Rights of the EU (article 6 TEU), which comprises the

list of fundamental rights that the EU and its Member States must respect. The

Treaty anticipated the citizen’s initiative (article 11 paragraph 4 TEU). It

strengthened the role of national parliaments which started to serve as control points

within the so-called early warning system in respect to fulﬁlment of the principle of

subsidiarity (Kiiver 2012) and of the European Parliament, which became an equal

partner of the Council through the introduction of the ordinary legislative procedure

for secondary law adoption, article 288 TFEU. Besides that the simpliﬁcation of the

rules for the access of individuals to justice (by widening the locus standi of

individuals in the connection with the action for annulment according to article 263

TFEU) broadened the competences (or control potential) of the Court of Justice

(Mazák2011).

There were also some ideological features of the shift towards more legitimate

and democratic Union. They are ﬁrst of all expressed in the deﬁnition of values that

the EU’s activities should observe as speciﬁed in article 2 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’.

The demarcation of the democratic values of the EU completes the EU’s value

basis. These democratic values are deﬁned by Title II TEU and they include the

equality of EU’s citizens, representative democracy, dialogue with civil society, and

a principle, which we could describe as decentralization of the decision-making

processes, which rests on the ampliﬁed role and wider competences of national

parliaments. The accentuation of values and principles underlines the state-like

12 2 Constitutionalism Beyond the State

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character/ambitions of the EU. It is not surprising that EU is getting the label as

‘partially federal entity’(Piris 2010).

It is often assumed that a serious effort to federalize supranational entities must

be accompanied with an adequate increase in their democratic legitimacy

(Habermas 2001). The authors of the last major reform of the primary law

(Constitutional treaty and its Lisbon ‘clone’) to a large extent satisﬁed these calls

and (according to Habermasian logic

) made another step towards federalizing the

EU. Even though there are some critical voices (Mac Amhlaigh 2011) it is clear that

Treaty of Lisbon certainly increases the democratic legitimacy of both input

democracy, i.e. shift towards parliamentarianism and output democracy, i.e.

respecting rights of individuals (Lenaerts and Cambien 2009). When we take into

account that identiﬁcation of basic values, higher importance of Union’s citizenship

(Forejtová2014) or the increased role of national parliaments (article 12 TEU)

enhanced the traditional supranational features (especially the triad: autonomous

competences—autonomous institutions—autonomous law), we must accept that the

EU has fortiﬁed the legitimacy of its existence and activities, and is headed towards

deeper federalization of Europeans, therefore it is in accordance to Jean Monnet’s

programming statement (presented in Washington, 30 April 1952): ‘Nous ne

coalisons pas des États, nous unissons des hommes’.

2.4 Coven of Lawyers and Its Child—Emancipated

and Dominant EU Law

2.4.1 New Legal System Shaped by Judges and Lawyers

The nature of European Community and today European Union law has been

essentially connected with the supranational nature of European integration.

Meeting the autonomous objectives of integration requires an autonomous, effective

and uniﬁed legal system. A new lawmaker other than a nation state unavoidably

emerged here. Ability to regulate the behaviour and conduct of society abandoned

the exclusive monopoly of state power and thus opened way for a pluralistic set-out

(Bárány 2007).

Yet, we have to note that the creation of European Communities had an inter-

national legal (contractual) basis and as such EC law was originally considered as a

part of the public international law. The authors of the Treaties did not try or did not

need to resolve the challenges of use and effects of EC law within the national legal

systems. Nor they shaped the relationship between EC and national law or estab-

lished the procedures for resolving the potential conﬂict. They tacitly assumed that

these issues would be resolved by the constitutional law of the Member States

Jürgen Habermas belongs among the most powerful advocates of the need to increase the EU’s

legitimacy (Habermas 2001).

2.3 The Democratic Arrangement of the Internal Functioning of the EU 13

ondrej.hamulak@upol.cz

(access to the international legal commitments, theories of dualism and monism, the

concept of national law’s precedence over international law) or alternatively by the

concepts of public international law (the concept of a self-executing international

treaty).

Thus, the Treaties do not include any speciﬁc instructions on how to use the

EC/EU law in national practice and how its relationship to national law must be

settled.

The Court of Justice played an irreplaceable role here as it became to

serve as the engine of shaping the character of EU law and as pivotal authority

marking the line between supranational and national law. It is worth mentioning the

fact that the Court of Justice actually seized this position despite the weak and

unclear deﬁnition of its competences in the EU primary law which was referred as

‘fragile jurisdictional base’(Stein 1981). Mainly thanks to the Court of Justice that

the process of EU law constitutionalization took place (Corrias 2011). JiříPřibáň

adds that the utopia of European (supranational) constitutionalization could mate-

rialize only owing to this speciﬁc group of lawyers working for the Court of Justice

and in the legal services of the other Community institutions (Přibáň2010). Eric

Stein described the importance of the lawyers’estate for the deepening of European

integration with the following hyperbole (paraphrased in the title of this chapter):

‘Constitutionalisation of European integration is a story of a dark conspiracy and

outrageous collusion, engineered by a coven of judges and lawyers against

unsuspecting governments’(Stein 2005).

2.4.2 Autonomous Legal System

The nature of the European Union law is necessarily interconnected with the

supranational character of the European integration. In order to achieve autonomous

objectives of the integration entities an autonomous, effective and uniform legal

order is required.

The Court of Justice gradually deﬁned the EC/EU law as an autonomous legal

order valid within the territory of all Member States (Stein 1981) It has laid down

that this law is directly applicable without the need of its reception into the national

legal orders. Its internal effects are independent from principles of legal orders of

Member States; far from it the supranational law itself via its own application

principles deﬁnes its internal effects within the legal orders of Member States.

The fundamental characteristic of the European Union legal order is its inde-

pendence, sometimes recalled as sovereignty of EU law (Jacobs 2007). It means

that this legal order exists independently from the national law of Member States

and general public international law. It is a legal order different from both inter-

national and national law and it has an autonomous character deﬁned by these

elementary features (Barents 2004).

The only exception was the explicit deﬁnition of direct effect as a source of secondary law.

14 2 Constitutionalism Beyond the State

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•Own constitutional basis laid down in founding Treaties, i.e. rules of law with a

constitutional character which concern only the European Union. ‘The European

Economic Community is based on the rule of law, neither its Member States

nor its institutions can avoid a review of the question whether the measures

adopted by them are in conformity with the basic constitutional charter, the

Treaty‘(Les Verts

•The existence of the Court of Justice as its own, autonomous court of last instance

that interprets the EU law. The Community law has the only one binding

interpretation and this interpretation is exclusively made by the Court of Justice

who has this exclusive competence (Krohn

). The same exclusive competence

applies considering the validity of rules of the European Union law. This com-

petence is conferred only upon the Court of Justice (Foto-Frost

). National

courts are in case of doubts about the validity of rules of the European Union law

entitled to bring a preliminary question to the Court of Justice. However, they

cannot decide whether the rule of EU law is valid or not themselves.

•The completeness and self-sufﬁciency of the European Union law required to

solve issues under the competences of the European Union (especially the

sphere of exclusive competences) reﬂects that in order to achieve effects pre-

sumed by the EU law no law-making activity from the national institutions of

Member States is required.

•Autonomous determination of the characteristics and the principles of applica-

tion of supranational law. These principles are based on the case law of the

Court of Justice which determines the conditions of their use. National legal

orders do not regulate these principles speciﬁcally.

The Court of Justice pointed out in its case law that even though the

Communities were established by an international treaty and thus they derived from

the public international law, they cannot be regarded as typical international

organizations. Nor their legislation is a regional public international law, but a legal

order with speciﬁc characteristics. ‘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’(Van Gend en Loos

). In less than a year

and a half after the Van Gend en Loos case the Court of Justice make the supra-

national law absolutely independent from the international public law and deﬁned

as a completely independent (autonomous) legal order. ‘The EEC treaty has created

its own legal system which, on the entry into force of the treaty, became an integral

part of the legal systems of the Member States and which their courts are bound to

apply’(Costa vs. ENEL

Les Verts v Parliament, 294/83, ECLI:EU:C:1986:166.

Krohn, 74/69, ECLI:EU:C:1970:58.

Foto-Frost, 314/85, ECLI:EU:C:1987:452.

Van Gend en Loos, 26/62, ECLI:EU:C:1963:1.

Costa vs. ENEL, 6/64, ECLI:EU:C:1964:66.

2.4 Coven of Lawyers and Its Child—Emancipated and Dominant EU Law 15

ondrej.hamulak@upol.cz

The autonomous character of the Union law is logically followed by a certain

‘self-enforceability’of this law within the territory of the Member States. That

means that the Member States are not anymore supposed to make their own

decisions regarding the internal effects of the European Union law. The traditional

monist and dualist theory that deﬁnes the system of internal effects and applicability

of the international law rules within the national legal orders, does not apply here.

In contrast to that traditional view the European Union law deﬁnes its effects

autonomously; it prescribes the kind of EU monism (Forejtová2015). By making

the supranational law ‘independent’, the Court of Justice refuted the schematic

opinion that the EC law was just another form of international law and its subjects

could be only contractual parties (e.g. national states). The penetration of supra-

national law into the national legal systems disrupts the ‘sovereignty idol’—the

traditional concept according to which a direct intervention of supranational

(international) norms into the legal system of a sovereign country is inadmissible

(Klokočka 2006). The tensions between revolutionary and traditional approach was

visible also during ‘negotiating’the landmark decision in Van Gend en Loos case,

where three of the opposing Member States (Germany, Belgium, and the

Netherlands) unsuccessfully contended against self-enforceability of supranational

law by argument that sovereignty had to be preserved.

The main effect is that European Union law prescribes the obligation (recalled as

‘duty to apply’; see Prechal 2007) of national authorities to use its provisions

directly without any need to adopt implementing national rules = the principle of

the direct applicability. The European Union law is an independent legal order but

in a meantime it ‘is an integral part’of the legal order applicable in the territory of

each of the Member States (Simmenthal

According to the Court of Justice, the direct (immediate) applicability means that

the provisions of the European Union law shall be applied uniformly and fully from

the date of their entry into force for so long as they will be set aside. The Court of

Justice makes in this connection no differences between the Union law and the

national law regarding their application by the national courts and public authori-

ties. On the contrary, it recognizes the provisions of the European Union law as an

inseparable part of the legal orders of the Member States ‘The direct applicability of

Community law means that its rules must be fully and uniformly applied in all the

Member States from the date of their entry into force and for so long as they

continue in force. Directly applicable provisions are a direct source of rights and

duties for all those affected thereby, whether Member States or individuals; this

consequence also concerns any national court whose task it is as an organ of a

Member State to protect the rights conferred upon individuals by community law’

(Simmenthal).

The courts and even the administrative authorities (Constanzo

) of the Member

States are obliged to recognize the European Union law as a part of their national

Simmenthal, 106/77, ECLI:EU:C:1978:49.

Fratelli Constanzo, 103/88, ECLI:EU:C:1989:256.

16 2 Constitutionalism Beyond the State

ondrej.hamulak@upol.cz

legal order. The supranational law has become a part of the routine legal practice of

the national authorities (especially the courts). The courts of the Member States

were given a new power. The conferral of liability of application and enforcement

of the rules of supranational law upon national courts makes them a part of the

‘general judicial system of the Union’. Wide responsibility of the national general

courts led to increase of their importance and fuels the changes in their relation to

the national Constitutional Court (Komárek 2014).

Direct (immediate) application of European Union law is a crucial element of its

autonomy. In essence it includes the command to national courts to acknowledge

the supranational law as the law of their ‘own land’and apply it in the forms in

which it was originally adopted by the supranational power, i.e. without the need to

transpose it into intrastate sources. The impact here is objective and abstract.

However, independence of EU law also embraces a subjective/personal

dimension. It directly addresses individuals through the so-called direct effect

principle. Direct effect means that the provisions of EU law are capable to create

rights and impose duties for the individual subjects of national law, i.e. natural and

legal persons. Direct effect makes EU law a direct source of inﬂuencing the legal

status of legal subjects at a national level. Awarding the EU legal norms with direct

effect principle signiﬁcantly enhanced the rules of effective applicability of EU law

and boosted individuals’status in the legal system.

The Court of Justice’s case law regarding direct effect and especially as far as the

secondary law was concerned was based on the need for efﬁciency and utility of

supranational norms. The so-called ‘l’effet utille’requirement (Sehnálek 2009)

would have been signiﬁcantly undermined if the Member States failed to meet the

obligations imposed on them by the EU rules.

Effective functioning of the EU legal system requires Member States, as carriers

of speciﬁc duties to be continuously supervised. This supervision is primarily

executed by the Commission, which can take a Member State to court for failure to

comply with EU law (article 258 TFEU). Owing to the direct effect of EU norms,

individuals also have some power to monitor the state and claim a remedy before

national courts. In this respect, we talk about the so-called dual vigilance

(Weatherill 2010) or double control over the Member States. The acceptance of the

direct effect of EU law gave individuals more protection and simultaneously they

became protectors (‘guardians’) of the EU law and its integrity (Weiler 1991). The

inclusion of individuals under umbrella of supranational law transformed the EU

law into an absolute, complete legal system. Wide direct effect changed our per-

ception of supranational law. EU law is built on the shoulders of individuals and

individuals became the spine of its development. The presence of individuals in the

EU legal order further improved our understanding of this legal system as state-like

structure.

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ondrej.hamulak@upol.cz

2.4.3 Dominant Legal System

The Court of Justice gradually deﬁned EC (EU) law as an independent legal system

valid on the territory of all Member States. It stated that this law in all its forms (e.g.

the Treaties formed by the Member States, international treaties adopted by the EU

itself and sources of secondary law formed by EU institutions) shall be directly

applicable without the need of transposition into national legal systems. Its internal

effects were not dependent on the existence of legal basis prescribed by the Member

States’legal systems.

National authorities hold a number of duties vis-á-vis EU law norms. They must

accept EU law as an integral part of their national legal system; they have to consider

the content of EU law and objectives of the EU when interpreting national norms;

and when they face the conﬂict between EU law and national law norms, they are

under duty to give preference to the EU law norm and refuse to apply the national

one. The principles of the internal application of EU law in the Member states clearly

demonstrate that the notion of ‘self-enforceability’of EU law should be understood

in broad meaning. It is not only an ability to produce legal effect without the

transposition to national system but also general dominance over national law which

must be accepted here. The dominance of EU law over national law has three limbs

(a) it is capable to regulate legal situation directly despite the existence of

conﬂicting national rule (principle of primacy);

(b) it inﬂuences and changes the interpretation and understanding of national

norms (indirect effect);

state liability for damages caused by the serious breaches of EU law

requirements by the national authorities.

If the wording or meaning of national law provisions collides with the EU law, it

is the supranational law which behaves as dominant legal system. It prevails over

national rules in two ways. It paralyses the applicability of conﬂicting national rules

(Costa case impact) or narrows the possible ways of interpretation of national

norms to only those options which are in line with the EU law requirements (Von

Colson case impact).

2.4.3.1 The Cohabitation of Colliding Legal Worlds—The Principle

of Primacy of the European Union Law

The relationship between EU law and the law of the Member States is mostly

determined by the primacy of former over the later. The so-called primacy of EU

Von Colson and Kamann vs. Land Nordrhein-Westfalen, 14/83, ECLI:EU:C:1984:153.

18 2 Constitutionalism Beyond the State

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law (sometimes known as supremacy

) belongs among the basic characteristics of

EU law, and is an indispensably interconnected with the direct applicability prin-

ciple.

A unitary application of supranational law demands that it is utilized despite

conﬂicting national norms. TEU demarcates loyalty as a basic EU Member States’

duty, according to which their activities cannot endanger EU objectives (article 4

TEU), but such vaguely deﬁned commitment to their loyalty does not necessarily

affect the autonomy of the national decision-makers will. Formal preservation of the

autonomous position of the national decision-maker might be reﬂected in the

existence of a legal norm that would collide with the EU law. The primacy principle

solves such situations.

The application of this principle in real life gives the national judge (or any other

authority applying the law such as administrative body, see Constanzo case) the

obligation to abstain in the procedure in question from the application of a national

norm, which contradicts the EU law and to apply the EU norm.

The establishments of the primacy principle resolves the conﬂict between the EU

norm and the national one, because the national judge and every other national

institution must in such a situation apply the EU legal norm, and ignore the

conﬂicting national norm notwithstanding its legal nature and authority.

The primacy of the European Union law is its fundamental element that deﬁnes

the relationship between this law and the national law of the Member States (Alter

2001). This principle causes that the national judge (or any other authority applying

law) is (in cases decided by him) subject to an obligation not to apply the national

legal rule inconsistent with the European legislation. European Union law thus

enjoys the ability to take priority over national legal norms in the sphere of the

judicial or administrative practice. It had to be pointed here, that primacy does not

mean absolute normative superiority. Introduction of this principle into the practice

The theoretical approach includes opinions which believe that primacy and supremacy should be

distinguished. These opinions generally refer to the crucial judgement of the Spanish constitutional

court on the compatibility of the Treaty Establishing a Constitution for Europe with the Spanish

Constitution of 13 December 2004. The Constitutional Court drew a line between primacy and

supremacy and accepted the former as an important characteristic of the EU law, and the latter as

inherent to the norms of the Spanish Constitution, because only the Constitution contained the

legal basis for Spain’s EU membership. Similarly, they referred to the England and Wales High

Court decision Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), where supremacy

had been connected with the constitutional basis of the EU law’s effect, and primacy with actual

dominance of EU law within such system (Avbelj 2011).

The theory of EU law discusses whether primacy and direct applicability/direct effect are

independent and separate principles of EU law, which are not necessarily related, or whether they

are related where primacy acts as a rule on a conﬂict of norms in case when a directly applicable

norm of EU law collides with national law (Hinarejos 2008). I personally prefer the latter view.

The primacy principle was created to resolve conﬂicts between national and European law. In

order for a conﬂict to arise, the normative spheres (Bobek et al. 2011) of EU and national law must

overlap, which is possible only where there is a directly applicable EU norm. Primacy then serves

as an auxiliary principle, which should help to reach the full efﬁcacy of EU law in cases when

directly applicable norm ‘contradicts’the national law.

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of application of law was not followed by the building of hierarchy pyramid

between the European Union law and national law of Member States.

The TEU deﬁnes only the fundamental obligation of states not to jeopardize the

attainment of the Union’s objective = the principle of loyalty (article 4 paragraph 3

TEU). This generally deﬁned obligation does not in principle impinge on the

autonomy of the will of the national legislator. The formal preservation of the

autonomous position of the national lawmaker may ﬁnd it is echo in the existence

of the national legislation inconsistent with the EU law. The principle of primacy

was established in order to solve the collision between the supranational law and the

national law. In case of this collision the national judge shall use the rule of EU law

and not apply the national provisions.

The principle of primacy does not emanate directly from any text of primary or

secondary law source.

Its basis, extent and effects were built from the case law of

the Court of Justice of the European Union.

The key-decision was the judgment of the Court of Justice in Costa case. The

Court of Justice laid down in this decision the basis of the doctrine of the primacy

of the Community (now EU) law over the national law. It deﬁned the independence

of the supranational law, solved the issue of the relationship between the national

law of the Member States and the Community law and the division of powers

between the Union and the Member States. The Court of Justice considered the

conferral of powers upon the Community/Union as permanent and deﬁnitive and

recognized thus the independence of the supranational entity. According to the

Court of Justice: ‘By creating a community of unlimited duration, having its own

institutions, its own personality, its own legal capacity and capacity of represen-

tation on the international plane and, more particularly, real powers stemming from

a limitation of sovereignty or a transfer of powers from the states to the community,

the Member States have limited their sovereign rights, albeit within limited ﬁelds,

and have thus created a body of law which binds both their nationals and

The ﬁrst attempt to stipulate this relationship occurred with the drawing up of the

Treaty establishing a Constitution for Europe, which for the ﬁrst time stated in article I-6 the legal

speciﬁcations of the EU law’s primacy. The failure of the constitutional process led to a post-

ponement of the legal deﬁnition of the EU law in the EU’s primary law. The opportunity to solve

this problem opened again with the Treaty of Lisbon. It is well known that this document lacked

the formal constitutional ambitions of the Constitutional Treaty, thus, its text lacked provisions

with constitutional symbolism and did not carry any constitutional legal implications as had been

the case with article I-6 of the Constitutional Treaty. The authors of the Lisbon reform referred to

the principle of primacy only in the declarations attached to the Final Act of the Intergovernmental

Conference. Speciﬁcally Declaration no. 17 recalls in a form of some ‘softlaw’(Craig and De

Búrca 2011) that the primacy principle is a stable principle of EU law and the failure to legally

deﬁne it does not change the fact that it plays an important role when securing the effective

operation of EU legal regulation (The Declaration concerning primacy stipulates that: ‘The

Conference recalls that, in accordance with well settled case law of the Court of Justice of the

European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have

primacy over the law of Member States, under the conditions laid down by the said case law.’).

The Declaration concerning primacy can be understood as a political ‘consecration’of the Court of

Justice’s established case law (Niedobitek 2009).

20 2 Constitutionalism Beyond the State

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themselves. […] the law stemming from the treaty, an independent source of law,

could not, because of its special and original nature, be overridden by domestic

legal provisions, however framed, without being deprived of its character as

community law and without the legal basis of the community itself being called into

question’.

The primacy of the European Union law is a logical supplement to the principle

of the direct applicability. The uniform application of the supranational law requires

necessarily applying this law despite the collision with national provisions.

The principle of primacy of the EU law covers all sources of the European Union

law including the secondary legislation (Kreil

). According to the case law of the

Court of Justice, the supranational law has both retroactive effects (the application

of the already existing national legislation is ruled out) and future effects (the

application of the new national law is ruled out in the extent they will be incon-

sistent with the European norms Simmenthal). This effect of the primacy principle

derives from the requirement of an effective and uniform application of the

European Union law.

The formation of the primacy doctrine in Costa case represented the fundamental

basis within the framework of relationship between the Community (nowadays

Union) legal order and the national law of the Member States. In above-mentioned

case the Court of Justice did not express any limits of the primacy. Therefore, some

open questions remained. The most important and the most sensitive question was

whether this doctrine should apply also in connection with the cases of collision

between EU law and the highest rules of the national law = the Constitution and the

Constitutional law. The Court issued its opinion on this question in the judgment

Internationale Handelsgesellschaft.

There it deﬁned the absolute weight of the

doctrine of primacy of the Union law. In case where the supranational law and the

national constitutional provisions regulate certain issues differently, the European

Union law shall prevail. National constitutional rules can’t have the precedence

over the European Union law. Otherwise the autonomous character of the Union

and its legal order would be interfered as well as the effectiveness of achieving the

objectives of integration would be impinged. The next quoted passage from that

case became legendary: ‘Recourse to the legal rules or concepts of national law in

order to judge the validity of measures adopted by the institutions of the community

would have an adverse effect on the uniformity and efﬁcacy of community law. The

validity of such measures can only be judged in the light of community law. In fact,

the law stemming from the treaty, an independent source of law, cannot because of

its very nature be overridden by rules of national law, however framed, without

being deprived of its character as community law and without the legal basis of the

community itself being called in question. Therefore the validity of a community

measure or its effect within a Member State cannot be affected by allegations that it

Kreil, C-285/98, ECLI:EU:C:2000:2.

Internationale Handelsgesellschaft, 11/70, ECLI:EU:C:1970:114.

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runs counter to either fundamental rights as formulated by the constitution of that

state or the principles of a national constitutional structure’.

It is clear that Court of Justice understands primacy in absolute terms and does

not distinguishes between situations where obstacles to EU law have their roots in

general or constitutional law of Member state. This, however, does not change the

fact that primacy principle still has more or less procedural character and the Court

of Justice did not establish formal hierarchical relations between supranational and

national law. There is no hierarchy between these systems in terms of the validity of

norms, but there is some kind of structural relationship in terms of the applicability

of concrete legal rules to the facts in particular case. The primacy of EU law simply

establishes the obligations of national authorities to follow immediately the EU

norms, i.e. to abstain from applying a colliding national norm in a speciﬁc proce-

dure. A national court that hears the case cannot initiate any validity review; pro-

pose annulment or any other process of eliminating a national norm that contradicts

the EU legislation. The Court of Justice speciﬁcally states that ‘any provision of a

national legal system and any legislative, administrative or judicial practice which

might impair the effectiveness of Community law by withholding from the national

court having jurisdiction to apply such law the power to do everything necessary at

the moment of its application to set aside national legislative provisions which

might prevent, even temporarily, Community rules from having full force and effect

are incompatible with those requirements, which are the very essence of

Community law.’

The Court of Justice recalled the separated understanding of European and

national law also in decision Filipiak,

where it is restated that: ‘Pursuant to the

principle of the primacy of Community law, a conﬂict between a provision of

national law and a directly applicable provision of the Treaty is to be resolved by a

national court applying Community law, if necessary by refusing to apply the

conﬂicting national provision, and not by a declaration that the national provision is

invalid, the powers of authorities, courts and tribunals in that regard being a matter

to be determined by each Member State (point 82)’and further ‘[…] the incom-

patibility with Community law of a subsequently adopted rule of national law does

not have the effect of rendering that rule of national law non-existent. […]’

While it is true that the principle of the primacy of European Union law may

inﬂuence in some way the decisions of the national legislature, the immediate

invalidation of the national law does not follow from this principle. The question of

validity or invalidity does not arise here as the two legal systems—EU law and the

national law—are separate and autonomous legal orders.

No Treaty provision

Simmenthal, 106/77, ECLI:EU:C:1978:49, point 22.

Filipiak, C-314/08, ECLI:EU:C:2009:719.

Filipiak, C-314/08, ECLI:EU:C:2009:719, points 82–83.

The only exception where setting aside (invalidation) of conﬂicting national rules is necessary

(or better said required by EU law) arises in the situation when even the mere existence of the

national legal rule may endanger the application of the Union competences. Under those cir-

cumstances in order to strengthen the legal certainty and the position of individuals enjoying the

22 2 Constitutionalism Beyond the State

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provides for a power to decide on the validity of national law with derogative

effects. Even condemnatory decision of the Court of Justice within the infringement

proceedings (article 260 TFEU) stating the failure to comply with EU legislation

caused by the existence of national legislation contradicting EU law does not bring

this consequences. Neither decision within preliminary ruling where the Court of

Justice indirectly (commenting on an EU law provision) identiﬁes a contradiction

between national and EU norms does not have this effects.

Introduction of principle of primacy and its absolute understanding vis-á-vis

national constitutional law serve as one of the main arguments in federalization

debate in Europe. The primacy (supremacy) of federal law over the law of the states

serves as the classical constitutional arrangement of modern federal states. It should

be recognized also as feature of formal constitutionalization of the EU (Schütze

2014). But it is the contested feature because this federal matrix is not explicitly

regulated in the main constituent documents (the Treaties) which content the

expressed will of founders—the Member States. It is only the adjudicated principle

which is therefore open to (judicial) deliberations and contestations on the side of

national courts, which we will see on the Czech example in second part of this

volume.

2.4.3.2 Indirect Dominance of Supranational Rules. An EU-Consistent

Interpretation of National Law

The EU law is capable to affect the legal practice within the Member States even

much broader than by the normative inﬂuence described above. The consequences

of Member State’s EU membership include also the commitment to solidarity or

loyalty (see article 4 paragraph 3 TEU) which stands as the building block of all

non-normative (i.e. different to direct applicability of EU norms) impacts of the EU

law. The most widely used non-normative impact is related to the so-called prin-

ciple of indirect effect. This principle implies the obligation of national authorities

to reﬂect the aims of EU law and to follow the goals of EU norms when interpreting

national law. EU law stands here as a dominant matrix and forces the national

authorities to choose the pro-European options of given possible mods of national

law interpretation. Indirect effect of EU law is a ﬂexible principle. It produces

(Footnote 28 continued)

subjective rights steaming from EU law provisions, the Member States may be obliged to eliminate

(invalidate) the contradicting national rule (see Commission v. France, 167/73, ECLI:EU:

C:1974:35). But this consequence cannot be regarded as the impact of the primacy principle. The

extraordinary duty to set aside provision(s) of national law under above-mentioned circumstances

must be understood as impact of general principle (obligation) of loyalty (established by article 4

paragraph 3 TEU) according to which Member States he Member States hold a duty to take all

appropriate measure to ensure fulﬁlment of their obligations arising out of the Treaties or from the

acts of the institutions of the EU.

Attanasio Group, C-384/08, ECLI:EU:C:2010:133, point 16.

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ondrej.hamulak@upol.cz

several consequences in national practice which are dependent on the wording and

strength of EU law norm (used as the model) and wording and scope of national

rule as well. EU law may be used as argument in different forms:

•as conﬁrmative argument to underline the relevance of the chosen decision,

which clearly ﬂows from national law,

•as mediatory argument where EU norm determines which of plausible paths of

interpretation of national law must be chosen.

•as evolutive argument where EU law bent the traditional interpretation of

national norm and open it for new non-established meanings.

The foundations of the principle of the indirect effect of the European Union law,

i.e. the obligation to interpret the national law in conformity with the EU law

requirements were settled in Von Colson case. It represents another pillar of effective

impact of EU law in proceedings before national authorities. Basically it means that

the national judge (or another authority responsible for application of law) is obli-

gated to interpret the national law in the light of objectives and content of rules of EU

law. It was originally associated with the directives. According to the Court of

Justice: ‘the Member States’obligation arising from a directive to achieve the result

envisaged by the directive and their duty under article 5 of the Treaty to take all

appropriate measures, whether general or particular, to ensure the fulﬁlment of that

obligation, is binding on all the authorities of Member States including, for matters

within their jurisdiction, the courts. It follows that, in applying the national law and

in particular the provisions of a national law speciﬁcally introduced in order to

implement directive […], national courts are required to interpret their national law

in the light of the wording and the purpose of the directive in order to achieve the

result referred to in the third paragraph of article 189. […] It is for the national court

to interpret and apply the legislation adopted for the implementation of the directive

in conformity with the requirements of community law, in so far as it is given

discretion to do so under national law’.

The Court of Justice resolved here a

question whether the directive may have some legal effects even though its provi-

sions do not meet requirements laid down by Van Gend en Loos formula (are not

sufﬁciently clear, precise and unconditional) and thus they cannot be directly

applicable. It replied this question in the afﬁrmative because it stated an obligation of

national courts to interpret their law in line with the meaning of the directive. The

arguments for the imposition of such a new duty on national authorities were based

on the binding nature of directives and the principle of loyalty (article 4, paragraph 2,

third subparagraph 3 TEU) which impose to Member States the duty to take any

measures to fulﬁl the obligations conferred upon them by Treaties.

Michal Bobek recalls these three options as weak, medium and strong indirect effect (Bobek

2014).

Von Colson and Kamann vs. Land Nordrhein-Westfalen, 14/83, ECLI:EU:C:1984:153, points

27–28.

24 2 Constitutionalism Beyond the State

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The subsequent case law of the Court of Justice brought the substantial devel-

opment of the principle of the indirect effect. The duty to interpret national law in

the light of EU norms evolved both qualitatively and quantitatively. At the very

beginning it covered only the duty to interpret national law adopted in order to

implement directives in the light of this particular directive. It was introduced as

some kind of alternative to the lacking direct effect (Betlem 2002) but developed to

the inﬂuential impact of EU regulative power. The crucial expansions were brought

by the decision in Marleasing

case where Court of Justice brought a clariﬁcation

of some problematic aspects of this principle:

•It extended the scope of national law that has to be interpreted in the light of

rules of EU law. One of the most problematic issues of the doctrine of indirect

effect was whether the duty of consistent interpretation covers only that part of

the national law that implemented a certain directive into the national legal

system of the Member State or whether it covers also other national laws whose

adoption was not related with the implementation. The Court of Justice stated

that duty of consistent interpretation has to be understood widely and

acknowledged that indirect effect covers all the national law even that which

was not adopted in the connection with the implementation of the directive and

no matter whether it was adopted before or after the adoption of the directive.

Basically the principle of indirect effect affects the national legal order as a

whole (including the national constitutions).

•Another important issue is that Court of Justice acknowledged the impact of

indirect effect also in so-called horizontal relationships. National courts are

according to this wide view obliged to interpret the national law in a harmony

with EU requirements even in disputes between individuals, where indirect

effect served mainly as an alternative to the prohibition of horizontal direct effect

of directives.

The indirect effect stands as a ‘robust’EU law principle (Bobek 2014) and its

wide consequences seem to be more crucial for the national sovereignty and

national law autonomy discussions than the direct applicability and primacy. It is

because indirect effect is connected with all provisions of EU law and touches all

ﬁelds of national law and is capable to turn the established way of interpretation of

domestic norms (and therefore the adjudication processes). However, this wide

inﬂuence is balanced by the fact that it is still national law, which is applied here. In

comparison with direct effect and primacy we do not face here the penetration of

norms produced by different public power and replacement of national norms. It is

also worth to say here, that direct effect is not limitless. Court of Justice expressed

several boundaries of EU-consistent interpretation of national law, which more or

less should act to protect its autonomy. It has formulated following rules in the

connection with the limits of obligation of national judges to interpret the national

law in the light of the European Union norms:

Marleasing vs. Comercial Internacional de Alimentación, C-106/89, ECLI:EU:C:1990:395.

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•The interpretation of the national law in the light of European Union law pro-

visions is limited by the scope of discretionary competences of the national

authority applying law and interpretation methods governed by the national law

(Von Colson).

•The EU-consistent interpretation of the national law may not lead into con-

clusions denying the essence of the national legislation, i.e. to decisions contra

legem (Marleasing).

•The position of an individual may not be aggravated in the meaning of the

establishment or the extension of the criminal responsibility (Kolpinghuis

•In case of indirect effect of a directive the obligation of the harmonious inter-

pretation may be established only after the expiration of the period prescribed

for the implementation of a directive (Adeneler

2.4.3.3 The Price for the Non-conformity—State Liability

for Damages Caused by Breaches of EU Law

The principle of state liability is usually perceived as remedy used to enforce the

individual right prescribed by the EU law (Aalto 2011). This principle completes

the aforementioned characteristics of the EU law as a complex and autonomous

legal order. The liability for damages is certain subsidiary consequence which

serves as a tool to protect individuals in case when State breaches its obligations

deriving from its commitments as a Member of the EU. From another point of view,

this remedy widens the notion of dominance of EU law and has a special relevance

for the ‘sovereignty discussions’. This special European remedy is an example of

‘interventionist approach’(Dougan 2004) of the Court of Justice to the scale of

national remedies. Its wide evolution in the Court’s case law touches upon the

autonomy of national (remedial) law but also interfere with the sensitive questions

like sovereignty of national legislators and independence of national courts. This

principle closes the circle of dominance by introduction of responsibility regime

connected with ‘ignorance’of EU law rules by the Member States.

The pilot decision forming this doctrine was issued in case Francovich.

Form

and conditions were subsequently governed by following case law of the Court of

Justice. The Court of Justice understands the liability of the Member States for

damages as one of the key principles of EU law inherent to the system of the Treaty.

According to the Court of Justice the liability is a matter of principle because: ‘It

should be borne in mind at the outset that the EEC Treaty has created its own legal

system, which is integrated into the legal systems of the Member States and which

their courts are bound to apply. The subjects of that legal system are not only the

Member States but also their nationals. Just as it imposes burdens on individuals,

Kolpinghuis Nijmegen, 80/86, ECLI:EU:C:1987:431.

Adeneler and others, C-212/04, ECLI:EU:C:2006:443.

Francovich and Bonifaci vs. Italy, C-6/90 and C-9/90, ECLI:EU:C:1991:428.

26 2 Constitutionalism Beyond the State

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Community law is also intended to give rise to rights which become part of their

legal patrimony. Those rights arise not only where they are expressly granted by the

Treaty but also by virtue of obligations which the Treaty imposes in a clearly

deﬁned manner both on individuals and on the Member States and the Community

institutions […]. Furthermore, it has been consistently held that the national courts

whose task it is to apply the provisions of Community law in areas within their

jurisdiction must ensure that those rules take full effect and must protect the rights

which they confer on individuals […]. The full effectiveness of Community rules

would be impaired and the protection of the rights which they grant would be

weakened if individuals were unable to obtain redress when their rights are

infringed by a breach of Community law for which a Member State can be held

responsible’.

Court of Justice clearly recalled here to the notion of autonomy and

effectiveness of EU law. It repeated also the loyalty commitment of the Member

States. The style of the judgement and arguments used by the Court are very close

to the constitutionally landmark decisions (Costa, Van Gend, Simmenthal, actually

quoted by the Court) and puts this decision on the same level of importance.

Signiﬁcant development and clariﬁcation of problematic issues related to the

liability doctrine were brought by the Court of Justice in Brasserie du Pêcheur

case.

One of the problems not covered by the Francovich case was the question

whether the Member States are liable for damages also in cases where they breach

the directly applicable rule of supranational law. The government of Member States

argued against the rise of liability in this situation and reasoned their position by the

plea that the direct effect is an adequate instrument to protect rights of individuals,

that there are sufﬁcient national instruments for claiming the reparation and thus it is

not necessary to held the state responsible for the infringement also under the EU

law. The Court of Justice refused this argument and stated that the direct effect is

not a satisfactory instrument to ensure the effectivity of individuals’remedy for

coverage of suffered harm. This principle entitles individuals to seek the EU law

directly in the proceedings before the national court but it does not guarantee the

reparation for damages and loss caused by the breach of State’s obligations. The

doctrine of the State’s liability for damages complements the principle of the direct

effect but it is an autonomous notion within the complex system of EU law. The

judgment also contributed signiﬁcantly to the development of conditions of

the State liability for damages. Court did not formulate the precise deﬁnition of the

liability but it lay down that the liability is conditional on many circumstances (such

as a precise deﬁnition of discretionary competences of the state’s authority, clarity

or non-clarity of the infringed norms, etc.). According to this decision the liability

conditions state as follows:

Francovich and Bonifaci vs. Italy, C-6/90 and C-9/90, ECLI:EU:C:1991:428, points 31–35.

Brasserie du Pêcheur vs. Bundesrepublik Deutschland and The Queen/Secretary of State for

Transport, ex parte Factortame and others, C-46/93 and C-48/93, ECLI:EU:C:1996:79.

2.4 Coven of Lawyers and Its Child—Emancipated and Dominant EU Law 27

ondrej.hamulak@upol.cz

•the infringed rules of EU law shall prescribe or at least presume the existence of

certain subjective rights of individual;

•there must be a direct causal link between the breach of EU law and the loss or

damage caused;

•the breach of EU law caused by the State authorities must be sufﬁciently serious.

The deﬁnition of the seriousness of the breach depends on the clarity of the

Union rule infringed and further on the margin of a discretion left by the EU law

to the national authority

(1) Incase of a narrowmargin of discretion orno discretion, any infringement of the

MemberStateobligationissufﬁcienttobedescribedastheseriousbreach.

(2) In case of a broad margin of a discretion of national authority it is further

necessary to prove the seriousness by subsidiary arguments, for instance a

fault, a conduct contrary to the settled case law, a contributory fault of an

individual, a certain margin of Union co-liability deriving from the unclear

deﬁnition of the state obligations, etc.

In Brasserie du Pêcheur, the Court of Justice also clariﬁed the question for the

conduct (or omission) of which national authorities the Member States should be

responsible. Here it stated that the States are liable regardless whether the breach of

EU law was caused by an authority representing legislative or executive power.

Further the Court of Justice broadened the sum of national authorities for whose acts

the State may be held responsible. The categories were widened to the local

authorities (Konle

;Haim

) and also to the national judiciary (Köbler

; Traghetti

del Mediterraneo

The liability of the State for the acting of the authorities representing the judicial

power is one of the most sensitive issues of the EU law (because of the judicial

independence, the wide discretion, etc.) and it is the subject to some additional

conditions (Breuer 2004). According to the Court of Justice the Member State

should be held responsible for the damage and loss caused by the breach of the

European Union law only under the circumstances that this damage was caused by

the decision of national court of the last instance and that infringement of the EU

law rule by the national court was sufﬁciently manifest (arbitrary). However,

Member States cannot pose any special limitations or conditions for the claims of

individuals for compensation of damages caused by such manifest breach of EU

law. For example, restriction of the liability of Member State for the activity of the

judiciary only to the cases involving intentional fault or gross negligence of justices

is incompatible with the general principle of the liability of Member States for a

breach of EU law (Commission v Italy

Konle, C-302/97, ECLI:EU:C:1999:271.

Haim, C-424/97, ECLI:EU:C:2000:357.

Köbler, C-224/01, ECLI:EU:C:2003:513.

Traghetti del Mediterraneo, C-173/03, ECLI:EU:C:2006:391.

Commission vs. Italy, C-379/10, ECLI:EU:C:2011:775.

28 2 Constitutionalism Beyond the State

ondrej.hamulak@upol.cz

2.5 ‘Cerberus’Guarding the Fundamental Rights

Nowadays, the key provisions which deﬁne the Union as a constitutional com-

munity based on respect for human rights are included in the Treaty on European

Union. The most important are article 2 TEU (which deﬁnes the values of European

Union and presents the human rights as the fundamental core of the integration),

article 6 TEU (which deﬁnes or summarizes the sources and several instruments of

the human rights protection within the European Union) and article 7 (which

introduces the mechanism of control and sanctioning of the Member States in the

cases of grave violation of the fundamental rights by them).

The central provision is the second aforementioned provision (article 6 TEU) which

deﬁnes the three cornerstones of the protection of fundamental rights at the suprana-

tional level. These three totems seems to provide Union within the most complex

system of the promotion of fundamental rights which shall work as the one body of

tools with three different heads—like the Cerberus guarding the mythic underworld.

Moreover, this strong impetus on the role of fundamental rights within the

supranational legal order serves as an indirect tool of defence of supranational

(Court’s) view on the nature of the legal system of the Community and Union,

respectively (Craig 2010). The recognition of fundamental rights as immanent part

of supranational law and establishment of the complex system of their protection

rendered to the supranational legal system the nature of the constitutional order.

Therefore, it was suitable to be accepted by the national courts in their practice as

the law applicable in their judicial decision-making. The big lesson here was

learned in connection with the famous ‘Solange saga’of German Federal

Constitutional Court (Frowein 1988). German court primarily rejected the possi-

bility of unlimited application of Community law within the national legal practice

by the argument that supranational law showed serious deﬁciencies in the ﬁeld of

protection of individuals. It stated that as long as Community system will show the

deﬁciencies (in comparison with German level) it will not accept its general internal

effects (case Solange I

). Once the Community system improved and the doctrine

of fundamental rights was introduced the Federal Constitutional Court changed its

opinion and accepted the application of Community rules (case Solange II

) but

once more with the objection that It will serve as the ultima ratio guardian of the

structural quality of this reached level. In case when serious structural discrepancies

will appear within the supranational system the German court reserves itself the

right not to accept the internal applicability of the certain rules of EU law within

This chapter is based on my previous work with title Idolatry of Rights and Freedoms—

Reﬂections on the Autopoietic Role of Fundamental Rights within Constitutionalization

of the European Union, which was published in volume Protecting Human Rights in the EU.

Controversies and Challenges of the Charter of Fundamental Rights (see Hamuľák2014).

Solange I—Internationale Handelsgesellschaft von Einfuhr—und Vorratsstelle für Getreide und

Futtermittel, decision of 29 May 1974, BVerfGE 37, 271.

Solange II—Wünsche Handelsgesellschaft decision of 22 October 1986, BVerfGE 73, 339.

2.5 ‘Cerberus’Guarding the Fundamental Rights 29

ondrej.hamulak@upol.cz

German system (Lebeck 2006). This raised ﬁnger is still valid (see its repetitions in

Maastricht-Urteil

as well as in Lissabon-Urteil

) and transmitted also to the

approach of other Member States courts (Czech Constitutional Court may serve as

one of the most inﬂuenced examples, see cases Sugar Quotas

;European Arrest

Warrant,

Lisbon I

and Lisbon II

). And within this atmosphere of permanent

control from the national level the supranational approach to the protection of

fundamental rights has to develop perpetually in nowadays and also in the future.

Therefore, Union is bound by the sources and mechanisms and therefore it is still

willing to go further—mainly by the accession to the European Convention.

2.5.1 Charter of Fundamental Rights of the European

Union—Internal Pillar

Granting the legally binding force to the Charter of Fundamental Rights of the

European Union (Charter) via adoption of Treaty of Lisbon (by reference included in

the ﬁrst paragraph of the article 6 TEU) brought signiﬁcant changes within the EU

legal system as whole. Charter was adopted in December 2000 as mere political

declaration without legally binding nature. First attempt to make it legally binding

came in connection with the Treaty establishing Constitution for Europe. Here, the

Charter was included directly to the text of European Constitution. But because this

reform document was rejected by the French and Dutch people in referendums in

2005 the question of the binding force of the Charter was not resolved yet. Second

(successful) attempt was made in connection with the Treaty of Lisbon. This doc-

ument changed the wording of article 6 TEU and introduced the ‘legalisation’clause

according to which Charter got the same legal value as the Treaties. Starting by 1st

December, 2009 (when Treaty of Lisbon entered into the force) the Charter of

fundamental rights of the European Union became legally binding (Forejtová2013).

Thanks to the Charter the project of European integration entered a new stage

and got a new image. Union obtained an internal instrument of identiﬁcation and

protection of human rights, which is the ﬁrst pillar of the whole system.

Breakthrough importance of adopting a legally binding catalogue of fundamental

rights has several aspects:

•It can be viewed from the perspective of constitutional dogmatic where adoption

of own internal catalogue of rights and freedoms completes the constitutional

Maastricht-Urteil decision of 12 October 1993, BVerfGE 89, 155.

Lissabon-Urteil decision of 30 June 2009, 2 BvE 2/08.

Sugar Quotas III, Pl. ÚS 50/04, ECLI:CZ:US:2006:Pl.US.50.04.

European Arrest Warrant, Pl. ÚS 66/04, ECLI:CZ:US:2006:Pl.US.66.04.

Treaty of Lisbon I, Pl. ÚS 19/08, ECLI:CZ:US:2008:Pl.US.19.08.1.

Treaty of Lisbon II, Pl. ÚS 29/09, ECLI:CZ:US:2009:Pl.US.29.09.3.

30 2 Constitutionalism Beyond the State

ondrej.hamulak@upol.cz

system of the Union. Next to the more or less established formal/procedural

constitutional rules (relations of the Union and the Member States, the internal

rules of separation of powers between a several Union institutions, quasi-federal

rules on the application of Union law in the national practice, etc.) it brought

clear material constitutional rules deﬁning the relationship between the indi-

vidual and public authorities into the to the supranational constitutional sys-

tem.

Charter itself legitimizes the EU public power in ‘black letter’

understanding. Its active use as the source of legality review by the Court of

Justice deepens this impact in real world (De Búrca 2013).

•Moreover, this step can be evaluated from the perspective of some constitutional

symbolism where the existence of the human rights catalogue serves as

important legitimizing tool (Neacsu 2001) vis-á-vis ever-expanding and deep-

ening powers of the European Union or Member States acting on behalf of

Union. Lenaerts and Cambien speak about increasing of the output democracy

of the EU in this regard. Charter legitimizes EU with the same value as

increased role of principle of representation and parliamentarism in the EU (the

input democracy) (Lenaerts and Cambien 2009).

•From another point of view Charter fulﬁlled the requirement of improvement of

legal certainty of the holders of fundamental rights by making these rights visible

and manifested. It conﬁrmed the attitude of the Court of Justice towards the

fundamental rights from the previous decades. But it is true that great deal made

by the Court of Justice by introduction of the fundamental rights as General

Principles (see further) was always connected with the risk of uncertainty and

unpredictability. As AG Mazák rightly stressed in his Opinion in Palacios case:

‘[…] in the nature of general principles of law, which are to be sought rather in

the Platonic heaven of law than in the law books, that both their existence and

their substantive content are marked by uncertainty’.

Charter is the tool of

minimalizing of that uncertainty and this seems to be its crucial added value.

•Additionally, the legally binding Charter serves as an important revolutionary

novelty in terms of theory and history of human rights. Charter by its wide

content revolutionizes the classic approach to human rights which used to be

Contours of material constitutionality of the European Union are deﬁned primarily by the system

of protection of fundamental rights. The question of the role and place of fundamental rights within

the European Communities and the European Union has undergone major developments during

the history of integration (Šišková2008). But it is non-disputable that only by adoption of the

binding catalogue it reached the level of complexity and clarity.

As very visible example of the real impact of the Charter one may recall to the crucial decision of

the Court of Justice Digital Rights Ireland, C-293/12, ECLI:EU:C:2014:238, where Court used the

Charter as the main argument for the (surprising) invalidation of the so-called Data Retention

Directive (2002/58/EC) as whole. Another strong example is Opinion on the Agreement on

Accession of the European Union to the European Convention for the Protection of Human Rights

and Fundamental Freedoms, 2/13, ECLI:EU:C:2014:2454, where Court of Justice found the

incompatibility between the proposed agreement and EU law including the Charter (stating the

doubts about sufﬁcient protection of autonomy of Charter, see points 186–190).

AG Opinion, Félix Palacios de la Villa, C-411/05, ECLI:EU:C:2007:106.

2.5 ‘Cerberus’Guarding the Fundamental Rights 31

ondrej.hamulak@upol.cz

recognized by the separate documents in line with the theory of several human

rights generations. Charter abandons this traditional approach at least formally

and recognizes the civil and political rights as well as economic, social and

cultural rights as part of one general human rights record.

•Last but not least, the Charter reaches also the spheres of the Member States as

they are included into the list of ‘negative’addresses—the entities obliged to

respect the Charter. We can see one more the federal impetus here. Charter as

the catalogue of the ‘centre’binds the several parts of the Union and attributes

the one standard all over the entire community.

Charter is very complex and quite ambitious document. It includes the tens of

human rights from all generations (classical division of human rights to the three

generations of rights: civil and political; economic, social and cultural; the modern =

solidarity rights). It has its own special structure which does not follow the classical

division of human rights to types or generations. The ‘body of Charter’includes 50

material and 4 horizontal provisions (+explanations which are attached to the cata-

logue). It is internally structured into the seven titles

•First title called ‘dignity’(articles 1–5) is inspired by ‘Kantian’ideal concepts,

i.e. human dignity at the ﬁrst place. It includes the hard core rights as rights to

life, protection of personal integrity, prohibition of torture, etc.

•Second title entitled ‘freedoms’(articles 6–19) deals with the various examples

of personal liberties like personal freedom, protection of private spheres, free-

dom of thought and expression, freedom of association and assembly, etc.).

•Third title called ‘equality’(articles 20–26) stresses the fact that

anti-discrimination policy is one of the most important ﬁelds of activity of the

Union. There is big variety of equality general anti-discrimination clause, equality

between men and women, special protection of vulnerable groups—children,

elderly and people with disabilities, etc.

•Fourth title marked ‘solidarity’(articles 27–38) includes mainly the economic

and social rights, e.g. collective bargaining and action, fair and just working

conditions, access to health care, etc.

•Fifth title called ‘Citizen’s rights’(articles 39–46) is inspired by the Treaty

provisions on Union’s citizenship. It repeats the classical group of rights of

Union’s citizens (electorate rights, free movement, political rights and diplomatic

protection) and adds quite detail provision on the righto good administration.

•Sixth title is identiﬁed as ‘Justice’(articles 47–50) and includes the procedural

safeguards as right to fair trial, presumption of innocence, legality and pro-

portionality of criminal justice, ne bis in idem principle).

•Seventh title includes so-called horizontal provision which determines the

general rules of application and interpretation of Charter and presents the

sources of inspiration for the adoption of this document (articles 51–54).

Very important provision which has to be mentioned in this introductory elab-

oration of the Charter is article 51 paragraph 1. It deﬁnes the addresses of obligation

32 2 Constitutionalism Beyond the State

ondrej.hamulak@upol.cz

to respect the rights included in the Charter. There are two categories of addresses

which have obligation to respect of the Charter:

•Institutions, bodies, ofﬁces and agencies of the Union—here the Charter serve as

the tool of strengthening of rule of law and democratic legitimacy of the

supranational governance. It is the goal of long path on which Communities and

Union were ﬁnding the ideal tool for the protection of fundamental rights.

Institutions of the EU are responsible to respect rights protected by the Charter

generally in all activities which could touch upon individuals’rights.

•Member States—here Charter brings the federalisation question on the scene.

The question of existence of common (central) standard of fundamental rights

protection binding upon all Member States (peripheries) is clearly interconnected

with the above-mentioned emancipation and dominance of EU law. And it

deepens the scope of protection of individuals within the whole system of

application of EU law. But it is worth to mention here that not all Member States’

conducts fall under Charter conformity test. It is clear from the wording of article

51 paragraph 1 that Charter is applicable vis-á-vis Member States ‘only when

they are implementing Union law’. The Charter (unlike for example the

European Convention on Human Rights and Fundamental Freedoms) is not

universally applicable. Its applicability occurs where the conduct of a Member

State has some EU dimension. The question is not whether Member states must

fulﬁl the Charter but to what extent they have to do that. By resolving this

problem we will answer the question of intensity of federal impacts of the Charter

itself. This important query is covered by the next section of this chapter.

The widening of effects of Charter to the conducts of Member States is not a

novelty or systemic revolution in EU law. Even before the adoption of the Charter,

the Court of Justice recognized the applicability of EU fundamental rights standards

(as unwritten general principles of law) on the selected activities of Member States

and recognized that national courts must follow these principles in their decisions.

EU law recognized certain situations where Member States held the duty to respect

supranational standards of fundamental rights protection:

(a) The basic form, i.e. the explicit situations where some EU legislation directly

introduces a speciﬁc obligation to protect the fundamental right (typically in

the area of anti-discrimination law or general duty to ensure judicial remedies

to protect individual rights steaming from EU law, e.g. Johnston

Defrenne

cases).

(b) The ‘agent’situations, i.e. the situations where Member States were imple-

menting or applying a Union law. This so-called Wachauf situation

Johnston vs. Chief Constable of the Royal Ulster Constabulary, 222/84, ECLI:EU:C:1986:206.

Defrenne vs. SABENA, 43/75, ECLI:EU:C:1976:56.

Wachauf, 5/88 ECLI:EU:C:1989:321. See also Bosphorus vs. Minister for Transport, Energy

and Communications and Others, C-84/95, ECLI:EU:C:1996:312.

2.5 ‘Cerberus’Guarding the Fundamental Rights 33

ondrej.hamulak@upol.cz

interconnected with phenomenon of decentralized governance when state

authorities act essentially as an extended arm of the European Union. Weiler

points out that in the background of this argument there is a need to use a

single standard of European Union law in all states (Weiler 1999).

scope of discretion) derogate from the Internal Market rules (uses permitted

exemptions from the prohibition of restrictions on freedom of movement). This

so-called ERT situation

differs to both former types. Here Member States

apply their own law and do not behave as implementers of EU decisions. But

still even when applying their national law, they do so thanks to permission of

the EU rules and for the purpose to deviate from EU rules. So they appear in

the area outlined by EU law (Weiler 1999). The arguments here, similar to

previous situations, are based on the general need for a uniform standard of the

application of EU law in all states.

It is thus clear that the application of the Charter by the Member States is limited

only to a certain segment of their activities somehow connected with the effects of

EU law. The question is, what this segment covers, which actions of the Member

States fall under the umbrella of the Charter (and therefore under control and

interpretative jurisdiction of the Court of Justice)?

This question was among the most discussed issues in relation to the negotiation

of the Charter (Schönlau 2005) and brought a signiﬁcant case law of the Court of

Justice in recent where Court of Justice upheld above-mentioned broad interpre-

tation of article 51 paragraph 1 is the judgment in Fransson case.

In this case the

Court of Justice answered a preliminary question from the Swedish court, which

concerned criminal proceedings against H.Å. Fransson for serious tax evasion. H.Å.

Fransson was charged for stating false information in tax returns and for failing to

declare employers’contributions for the certain accounting periods. The problem

was that two years before Swedish tax authorities ordered him to pay some tax

surcharge for the same tax misconducts. National court therefore faced the problem

whether previous administrative sanction and new criminal prosecution fall under

prohibition of double jeopardy. And since the Charter conﬁrms principle of ne bis

in idem in article 50 it was confronted with the potential conﬂict of national rules

with the EU human rights catalogue. Therefore, it decided to stay proceedings and

turned to the Court of Justice with the preliminary question. The circumstances of

the case opened the initial question whether tax penalties and related criminal

proceedings represent the implementation of EU law within the meaning of article

51 paragraph 1 of the Charter? Part of the Member States

European Commission

and the Advocate General (Cruz Villalón) reﬂected this question negatively and

rejected the applicability of the Charter and therefore the Court’s jurisdiction to

decide the case.

ERT, C-260/89, ECLI:EU:C:1991:254. See also Familiapress, C-368/95, ECLI:EU:C:1997:325.

Åkerberg Fransson, C-617/10, ECLI:EU:C:2013:105.

Sweden, Czech Republic, Denmark, Ireland and Netherlands.

34 2 Constitutionalism Beyond the State

ondrej.hamulak@upol.cz

However, the Court of Justice took the opposite view and recognized the

applicability of the Charter despite the fact that it was neither a classic case of the

implementation of EU law (Wachauf situation), nor the case of derogation from EU

rules (ERT situation). It extended the scope of application of the Charter vis-á-vis

Member States also to other (much more broad) situations. According the Court:

‘Since the fundamental rights guaranteed by the Charter must therefore be complied

with where national legislation falls within the scope of European Union law,

situations cannot exist which are covered in that way by European Union law

without those fundamental rights being applicable. The applicability of European

Union law entails applicability of the fundamental rights guaranteed by the

Charter’.

The wide understanding of the Court of Justice lies in fact that term

‘applicability’in its view does not mean a concrete situation of application of EU

rules in speciﬁc case, but basically just a sort of their factual abstract existence. It is

not important whether EU law was used (directly or indirectly) in concrete case.

The key feature for applicability of the Charter is that circumstance of the case falls

within the scope of EU law. To meet this test even partial or indirect connection to

Union law is sufﬁcient (Hancox 2013). This requirement was met in the case of

H.Å. Fransson. His tax offenses were partly related to the area of value added tax,

which forms an area harmonized by EU law. Moreover, part of the revenue from

VAT constitutes one of the own resources of the Union budget. According to the

Court of Justice these facts were satisfactory enough to build a bridge between

prosecution at the national level and EU law. The matter therefore dropped within

the scope of application of Union law and criminal prosecution of tax evasion here

was considered as the implementation of EU law within the meaning of article 51

paragraph 1 of the Charter. Judgment in Fransson case brought an extremely broad

interpretation of the Charters’impact on the conduct of Member States. The Charter

became a shadow of European Union law (Lenaerts and Gutiérrez-Fons 2014) and

its applicability became somewhat unpredictable. It’s not surprising that interpre-

tation offered by the Court of Justice opened the discussion about the very sensitive

questions related to the problem whether there is any autonomous space for

Member States conduct which should be free of ‘testing by the Charter’and what

are the deﬁnitive frontiers of the scope of the Charter (Fontanelli 2014).

The subsequent case law of the Court of Justice partially corrected the excessive

abstractness of Fransson ruling and conﬁrmed that there are still some autonomous

domains of the Member States. Court of Justice brought some light to the unclear

Fransson ﬁndings and offered (a bit complicated but still applicable) criteria of

testing whether there is some connection between national law applied in the case

and EU law (Pirker 2014). In case Siragusa Court of Justice stated that: ‘In order to

determine whether national legislation involves the implementation of EU law for

the purposes of article 51 of the Charter, some of the points to be determined are

whether that legislation is intended to implement a provision of EU law; the nature of

that legislation and whether it pursues objectives other than those covered by EU

Åkerberg Fransson, C-617/10, ECLI:EU:C:2013:105, point 21.

2.5 ‘Cerberus’Guarding the Fundamental Rights 35

ondrej.hamulak@upol.cz

law, even if it is capable of indirectly affecting EU law; and also whether there are

speciﬁc rules of EU law on the matter or capable of affecting it […]’.

This point

brought a certain explanation to the concept’acting within the scope EU law’given

by the Fransson judgment. The applicability of the Charter still requires that certain

matter falls within the scope of EU law. But to make this conclusion one needs to

ﬁnd a speciﬁc interconnection between national law (decision) and concrete provi-

sions of EU law. The Court concluded that applicability of the Charter to the acts of

Member States necessarily presupposes the existence of a certain degree of con-

nection between the EU law and relevant national law measures that goes beyond the

mere similarity of areas concerned or indirect impact of one area to another. As the

Court stated in the Hernández case: ‘the mere fact that a national measure comes

within an area in which the European Union has powers cannot bring it within the

scope of EU law, and, therefore, cannot render the Charter applicable […]’.

From the case law (before and after Lisbon reform) follows a fairly wide range

of understanding the concept of ‘implementing’of EU law by Member States,

which creates the potential for wide impact of the Charter on the national practice.

But the important ﬁnding is that Charter cannot be used as the vehicle to widen the

EU competences alone without any further relation to the existing scope of EU law.

As the Court of Justice stated repeatedly

the Charter alone is not capable to

establish its own competence. To sum up the notion of implementation of EU law

covers both the direct application of EU rules and the application and interpretation

of national rules that serves as transposition of EU sources, moreover, it regulates

the application of national rules which could lead to derogation of EU-based

entitlements (most in the internal market) and ﬁnally it covers the

application/interpretation of national rules that relate to speciﬁc areas of Union

competence settled by concrete EU law provisions.

2.5.2 European Convention for the Protection of Human

Rights and Fundamental Freedoms—External Pillar

The second paragraph of article 6 TEU includes the commitment of the Union to

accede to the European Convention for the Protection of Human Rights and

Fundamental Freedoms (ECHR). This provision is a reﬂection of established

Siragusa, C-206/13, ECLI:EU:C:2014:126, point 25.

Julian Hernández and Others, C-198/13, ECLI:EU:C:2014:2055, point 36.

Torralbo Marcos, ECLI:EU:C:2014:187, C-265/13, point 30; Sociedade Agrícola e Imobiliária

da Quinta de S. Paio, C-258/13, EU:C:2013:810, point 20; Dutka and Sajtos C-614/12 and

C-10/13, ECLI:EU:C:2014:30, point 15; Weigl, C-332/13, ECLI:EU:C:2014:31, point 14;

Cholakova, C-14/13, ECLI:EU:C:2013:374, point 30; Nagy and Others, C-488/12, ECLI:EU:

C:2013:703, point 17.

36 2 Constitutionalism Beyond the State

ondrej.hamulak@upol.cz

practice, when the Court of Justice in its case law

commonly refers to the ECHR

as the source of its inspiration (Douglas-Scott 2006).

Even though accession negotiations had been commenced right at the beginning

of 2010 and after intensive work (Králová2011) they led to the ﬁnal proposal of the

Agreement on the Accession of the European Union to the Convention in April 2013

(Gragl 2013) EU still is not a party to the ECHR. The draft Agreement on Accession

was evaluated by the Court of Justice according to article 218 paragraph 11 TFEU

and this procedure led to the well-known negative Opinion 2/13

from 18th

December 2014. In this opinion, Court of Justice refused the draft of the agreement

for its incompatibility with the EU law. The Court gave uncompromising opinion

according to which: ‘The agreement on the accession of the European Union to the

European Convention for the Protection of Human Rights and Fundamental

Freedoms is not compatible with Article 6(2) TEU or with Protocol (No 8) relating to

Article 6(2) of the Treaty on European Union on the accession of the Union to the

European Convention on the Protection of Human Rights and Fundamental

Freedoms’. The main reasons for this negative opinion were the risk for the

autonomous character of the EU law, risk to the mutual trust between Member

States, insufﬁcient reﬂection of the speciﬁcs of the Common foreign and security

policy of the EU and deﬁcit in preservation of the special position of the Court of

Justice by the efﬁcient prior involvement mechanism. The Opinion of the Court was

evaluated and criticized from many angles. It is not the aim of this volume to analyse

the opinion and therefore I just refer to the signiﬁcant literature on the topic.

Actually, we are facing the deadlock situation in the accession process.

Notwithstanding that, the accession is still the vivid matter as it was introduced as the

constitutional duty of the Union by the adamant formulation in the article 6 para-

graph 2 TEU (Grabenwarter and Pabel 2013). The accession is important goal of the

Union but it is to some extent rather a symbolic act. By the accession to the ECHR

Union will show the determination and readiness to be subject to the same control

mechanism as its Member (and other European) countries. It is clear even from the

statement of the Committee preparing the accession which says that ‘As a result of

the accession, the acts, measures and omissions of the EU, like every other High

Contracting Party, will be subject to the external control exercised by the Court in the

light of the rights guaranteed under the Convention. This is all the more important

since the EU member States have transferred substantial powers to the EU’.

On the

other hand, it is worth to say, that importance of ECHR as the external pillar of

Nold v Commission, 4/73, ECLI: EU:C:1974:51; Rutili vs. Ministre de l’intérieur, 36/75, ECLI:

EU:C:1975:137; Hauer vs. Land Rheinland-Pfalz 44/79, ECLI:EU:C:1979:290; ERT, C-260/89,

ECLI: EU:C:1991:254; Kadi and Al Barakaat International Foundation v Council and

Commission, C-402/05 P and C-415/05 P, ECLI: EU:C:2008:461 etc.

Opinion on the Agreement on Accession of the European Union to the European Convention for

the Protection of Human Rights and Fundamental Freedoms, 2/13, ECLI:EU:C:2014:2454.

De Witte and Imamovic (2015); Nanopoulos (2015), Spaventa (2015) and many others.

cParagraph 5 of the DRAFT Explanatory report to the Agreement on the Accession of the

European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms.

2.5 ‘Cerberus’Guarding the Fundamental Rights 37

ondrej.hamulak@upol.cz

human rights protection in the EU will be preserved even without the accession.

Above I wrote about stabile position of the ECHR as the source of inspiration for the

Court of Justice when deciding the fundamental rights cases. This role of ECHR was

underlined also in the third paragraph of the article 6 TEU

which referrers to this

international treaty as one of the sources of the fundamental rights as the general

principles of EU law. This provision drags the ECHR indirectly to the system of EU

law even without formal accession. The importance of the ECHR is emphasized also

by the article 52 paragraph 3

of the EU Charter of Fundamental Rights. This

provision known as the de minimise clause preserves the reached level of protection

of fundamental rights and introduces the hierarchy of a kind between Charter and

ECHR. Finally, the action of the Union could be reviewed by the European Court for

Human Rights indirectly via ‘prosecuting’the Member States acting as the EU

agents. According to the Bospohus

decision of European Court for Human Rights

the complaints against Member States for the actions determined by the EU are

acceptable if there is a lack of equivalent protection by the Union in comparison to

the level of protection guaranteed by the ECHR. Taking into account all

above-mentioned reﬂections of the ECHR it is right to conclude that EU has the

external pillar of protection of fundamental rights—the European Convention for

Protection of Human Rights and Fundamental Freedoms—even without building of

formal bonds to this document.

2.5.3 Unwritten General Principles—Eternal Pillar

The third paragraph of article 6 TEU then identiﬁes the last (but historically oldest)

pillar of human rights protection on supranational level—the unwritten rules con-

tained in the general principles of law. Even Union has it written catalogue

(Charter) now, the importance of general principles is still high. First of all even

when the Fathers of the treaty decided to state down explicitly the list of protected

rights there is always a risk of deﬁciencies and incompleteness. There is also the

phenomenon which may be determined by the phrase ‘society overtake the law’

which means that legal regulation is always somehow behind the evolutional

Article 6 paragraph 3 TEU states: ‘Fundamental rights, as guaranteed by the European

Convention for the Protection of Human Rights and Fundamental Freedoms and as they result

from the constitutional traditions common to the Member States, shall constitute general principles

of the Union’s law’.

Article 52 paragraph 3 of the Charter states: ‘In so far as this Charter contains rights which

correspond to rights guaranteed by the Convention for the Protection of Human Rights and

Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid

down by the said Convention. This provision shall not prevent Union law providing more

extensive protection’.

Judgement of the European Court for Human Rights (Grand Chamber) of 30 June 2005,

Bosphorus Hava YollarıTurizm ve Ticaret Anonim Şirketi v. Ireland, Application no. 45036/98.

38 2 Constitutionalism Beyond the State

ondrej.hamulak@upol.cz

features in technology and society which bring the new unknown problems. And

the open category—as the principles are—is the best instrument for the ﬂexible

reaction and protection of individuals’rights in these circumstances. The devel-

opment of the doctrine of fundamental rights as part of the general principles of law

played a crucial role in building of the constitutionality of supranational entities.

Contours of material constitutionality of the European Union (remember that our

third claim is ‘where a rule of law is secured there is a constitution’) are deﬁned

primarily by the system of protection of fundamental rights. The question of the role

and place of fundamental rights within the European Communities and the

European Union has undergone major developments during the history of

integration.

The original text of founding documents did not pay any attention to this issue.

Also the Court of Justice was originally very strict and by using of precise formal

approach rejected the possibility of protection of fundamental rights within the

Community legal system. The Court of Justice believed that then sources of

Community law contained no (nor explicit nor implicit) basis for the protection of

fundamental rights (see Geitling case

). The most quoted reasons for this initial

resistance where:

•the dominant focus on the economic integration,

•the existence of the Council of Europe (another European organization which

was established primarily for the protection and promotion of democracy, rule

of law and fundamental freedoms),

•fundamental rights as a traditional domain of national constitutional law,

•absence of legal competence of the Community in the ﬁeld of fundamental

rights.

The silence of the Treaties and reluctance of the Court of Justice to possibility of

fundamental rights protection had a negative impact in several aspects. It led to the

reduction in quality of protection of individuals, tension between Community law

and national law and decrease of legitimacy and democratic nature of European

Communities. Therefore, this undesirable situation (with its negative consequences)

was not sustainable for the long time. And it was the Court of Justice who brought

the revolution and caused the end of ‘dark era’in the approach to the fundamental

rights.

In the seminal Stauder

Court of Justice turned its approach from strictly formal

and positive to the material and stated that fundamental rights form the part of

general principles of law on which the Community id based and prescribed itself the

assignment to be their guardian. Court’s doctrine of fundamental rights as part of

the general principles of law laid the foundations of inner (supranational) prism to

human rights protection. The importance of Stauder ruling is that Court of Justice

Präsident Ruhrkohlen-Verkaufsgesellschaft and others vs. ECSC High Authority, 36/59, ECLI:

EU:C:1960:36.

Stauder vs. Stadt Ulm, 29/69, ECLI:EU:C:1969:57.

2.5 ‘Cerberus’Guarding the Fundamental Rights 39

ondrej.hamulak@upol.cz

found the way how to safeguard the rule of law in cases of alleged violation of

fundamental rights by actions of Community authorities. The court denied its own

initial assertion that Community law does not contain any (no explicit nor implicit)

rules providing for protection of fundamental rights.

In the next period of the evolution of this doctrine, the Court of Justice primarily

pointed out particular sources of inspiration

which ﬁlled and precise the

unspeciﬁed category of general principles of law. These sources of inspirations

were constitutional traditions common to the Member States

and international

treaties on human rights on which the Member States participate or are their sig-

natories and in particular the European Convention for the Protection of Human

Rights and Fundamental Freedoms.

Fundamental rights encoded in the unwritten general principles of law become

the only source of protection for long decades of existence of supranational entities.

Recognition of human rights was important not only in terms of individuals and

their protection. As I mentioned above, the doctrine of fundamental rights as a

general principles served also as certain self-reference, the autonomous claim for

the constitutionality of European integration entities which supported their

accountability and legitimacy of their actions.

2.5.4 Autopoietic Role of Fundamental Rights

The recognition of human rights and the introduction of a system that monitors their

observance are not important only for individual citizens and their protection as

some universal pan-european superstructure (Klíma 2011). The doctrine of the

general legal principles, the adoption of its own catalogue of human rights, and the

will to surrender to an external (Strasbourg based) control mechanism, represent

certain autopoiesis of the EU’s constitutionalism (Torres Pérez 2009). It is clear that

a constitution without fundamental rights is not a constitution (Holländer 2009).

Only the recognition of the possibility to protect fundamental rights, only their

It is important to stress the notion of “inspiration”here. Even though the Court of Justice was

and still is open to draw inspiration from the national constitutional traditions and international

sources it does not mean that all acknowledged rights are transposed to the supranational level

automatically. Court of Justice understands the fundamental rights autonomously as the original

part of supranational legal order and also offers an autonomous interpretation of the content of the

fundamental rights. We may call it a “Community/Union view”with regard to the objectives of the

Community/Union, which in some way limits the scope of protection afforded to fundamental

rights (see Nold, 4/73, ECLI:EU:C:1974:51 or Hauer vs. Land Rheinland-Pfalz 44/79, ECLI:EU:

C:1979:290, where fundamental right to property was to some extent suppressed by the

Community economic and market interests).

Internationale Handelsgesellschaft, 11/70, ECLI:EU:C:1970:114; Nold, 4/73, ECLI:EU:

C:1974:51.

Rutili vs. Ministre de l’intérieur, 36/75, ECLI:EU:C:1975:137; Hauer vs. Land Rheinland-Pfalz

44/79, ECLI:EU:C:1979:290.

40 2 Constitutionalism Beyond the State

ondrej.hamulak@upol.cz

recognition as an immanent component of the supranational legal system, gave this

system the nature of a legal system. First and foremost, the case law of the Court of

Justice and the subsequent adoption of the EU Charter of Fundamental Rights drew

human rights into the system of EU law and they became the criterion of EU

institutions’legitimacy.

The introduction of human rights protection also serves as a strong uniﬁcation

tool, because shared values bond the European integration project (Dutheil de la

Rochère and Pernice 2003). The failure to test the conformity of supranational law

with fundamental individual rights would result in low legitimacy of this legal

system and could jeopardize its emancipation and domination. Historical devel-

opment conﬁrms this because actual and potential human-legal deﬁcits of the

European Communities became key arguments against the obligation to accept

supremacy of supranational law over national law. Standard-bearer of this approach

was the German Federal Constitutional Court (Kirchhof 1999), which in a doctrine

formed by its decisions in the so-called ‘Solange saga’

referred to the human-legal

deﬁcit of the Communities and its position became a catalyst for progress in this

area on the supranational level. The Court’s support of general legal principles not

only resolved the human rights’protection deﬁcit, but its doctrine served also as an

indirect defence of its view regarding the nature of the EU legal system.

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ResearchGate has not been able to resolve any citations for this publication.

Case C-206/13 Siragusa: A further piece for the Åkerberg Fransson jigsaw puzzle

Article

Mar 2014

Benedikt Pirker

The Past and Future Role of the European Court of Justice in the Protection of Human Rights

Chapter

Oct 1999

Bruno De Witte

For all its achievements in integrating Europe, the EU lacks a human rights policy which is coherent, balanced and professionally administered. Whether in relation to access to Community justice, sex equality, race and disability discrimination, or policing, or in its external policies from Kosovo to China, the Union needs new principles, procedures and institutions to design and implement an effective set of human rights policies. The introduction of a single currency, the problems of racism and xenophobia, the need for a humane refugee policy, the growing powers of the EU in many fields, and the Unions imminent eastward expansion, all make it urgent to adopt such policies. In this volume the leading experts in the field, including individuals from every EU country, provide an insightful critique of current policies and detailed recommendations for the future. The volume includes comprehensive analyses of: the competencies of the EU in human rights, access to justice, the Third Pillar.

6. The effects of EU law in the national legal systems

Chapter

May 2014

Michal Bobek

4. Constitutionalism and the European Union

Chapter

May 2014

Robert Schütze

Solange II, (BVerfGE 73, 339) Constitutional complaint Firma W.

Article

Mar 1988
COMMON MKT LAW REV

Jochen A. Frowein

The Early Warning System for the Principle of Subsidiarity

Book

Feb 2012

Philipp Kiiver

Drafting the EU Charter, Rights, Legitimacy and Process

Article

Jan 2005

Justus. Schönlau

Questioning Sovereignty

Book

Oct 1999

Neil MacCormick

6. The effects of EU law in the national legal systems

Chapter

Sep 2020

Michal Bobek

This chapter examines how EU law interacts with national legal systems. It first explains the default rules for the national application of EU law. It then focuses on three key principles: direct effect, indirect effect, and primacy. It considers requirements formulated with respect to procedures for the national enforcement of EU law and state liability for breaches of EU law. The chapter concludes with a case study, which illustrates the interplay between the rules and principles introduced in this chapter.

EU Law: Text, Cases, and MaterialsText, Cases, and Materials

Book

Jul 2020

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. The seventh edition of EU Law: Text, Cases, and Materials provides clear analysis of all aspects of European law in the post Lisbon era. This edition looks in detail at the way in which the provisions of the Lisbon Treaty have worked since the Treaty became operational, especially innovations such as the hierarchy of norms, the different types of competence, and the legally binding Charter of Rights. The coming into effect of the new Treaty was overshadowed by the financial crisis, which has occupied a considerable part of the EU’s time since 2009. The EU has also had to cope with the refugee crisis, the pandemic crisis, the rule of law crisis and the Brexit crisis. There has nonetheless been considerable legislative activity in other areas, and the EU courts have given important decisions across the spectrum of EU law. The seventh edition has incorporated the changes in all these areas. The book covers all topics relating to the institutional and constitutional dimensions of the EU. In relation to EU substantive law there is detailed treatment of the four freedoms, the single market, competition, equal treatment, citizenship, state aid, and the area of freedom, security and justice. Brexit is the rationale for the decision to have a separate UK version of the book. There is no difference in the chapters between the two versions, insofar as the explication of the EU law is concerned. The difference resides in the fact that in the UK version there is an extra short section at the end of each chapter explaining how, for example, direct effect, supremacy or free movement are relevant in post-Brexit UK. Law students in the UK need to know this, law students in the EU and elsewhere do not.

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