Besselink, L.F.M.

English

International Migration, Integration and Social Cohesion online publications

UvA-DARE is a service provided by the library of the University of Amsterdam (https://dare.uva.nl)UvA-DARE (Digital Academic Repository)The ECJ as the European "Supreme Court": Setting Aside Citizens’ Rights forEU Law SupremacyBesselink, L.F.M.Publication date2014Document VersionFinal published versionLink to publicationCitation for published version (APA):Besselink, L. F. M. (Author). (2014). The ECJ as the European "Supreme Court": SettingAside Citizens’ Rights for EU Law Supremacy. Web publication or website, Verfassungsblog.http://www.verfassungsblog.de/ecj-european-supreme-court-setting-aside-citizens-rights-eu-law-supremacy/#.VONm0fnF_ToGeneral rightsIt is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s)and/or copyright holder(s), other than for strictly personal, individual use, unless the work is under an opencontent license (like Creative Commons).Disclaimer/Complaints regulationsIf you believe that digital publication of certain material infringes any of your rights or (privacy) interests, pleaselet the Library know, stating your reasons. In case of a legitimate complaint, the Library will make the materialinaccessible and/or remove it from the website. Please Ask the Library: https://uba.uva.nl/en/contact, or a letterto: Library of the University of Amsterdam, Secretariat, Singel 425, 1012 WP Amsterdam, The Netherlands. Youwill be contacted as soon as possible.Download date:10 Mar 2023The ECJ as the European “Supreme Court”: Setting AsideCitizens’ Rights for EU Law Supremacy verfassungsblog.de /ecj-european-supreme-court-setting-aside-citizens-rights-eu-law-supremacy/We recently celebrated the 50th anniversary of one of the landmarks of the jurisdiction of the European Court ofJustice, the decision Costa v ENEL . In strong contrast to last year’s celebration of another founding stone ofEuropean law, the Van Gend & Loos decision, the Court of Justice seemed not to pay any attention. In reality,however, various members of the Court of Justice and others attached to the Court are engaged in a renewed effortto turn primacy into full supremacy of EU law over national constitutional law and constitutional courts well beyondCosta/ENEL.In the final plenary session of the FIDE conference in May 2014 in Kopenhagen Vice-president Koen Lenaertspointed out that in essence the recent Melloni judgment ‘made clear that the Member State constitutional courts canuse their national constitutional rights to provide more protection than the Charter does’. President Vassilios Skourisrepeated this, significantly opening his remarks by stating:‘The Court of Justice is not a human rights court; it is the Supreme Court of the European Union’.Lenaerts’ statement is at first sight deeply confusing, but on reflection the context provided by Skouris’ clarificationmakes clear that the message they want to convey is that it is entirely up to the Court of Justice to decide on theplace of national constitutional rights, even when it concerns autonomous Member State action. This message iscorrobated by others, such as former Judge Cristiaan Timmermans (The Magic World of Constitutional Pluralism.European Constitutional Law Review, Volume 10 September 2014 , pp 349-358, referring to Åkerberg Fransson)and CJEU legal secretary Daniel Sarmiento, who referred in his presentation at the Amsterdam Colloquium ‘Settlingthe supremacy of European law? Interdisciplinary perspectives on 50 years Costa v ENEL (26 June 2014) to bothMelloni and Åkerberg Fransson in order to make the same point as Lenaerts and Skouris. Thus, the Court, whichhad already disengaged primacy from direct effect in Melloni, is intent to go much further beyond Costa/ENEL.In order to understand this, let us first explain the cause of confusion caused by Lenaerts on the meaning of Melloni,and next consider Skouris’ statement as a further explanation.In Melloni, the Court of Justice judged that the Spanish Constitutional Court could not provide a higher level ofprotection for persons convicted in absentia for serious crimes. This, it held, would be in conflictwith EU law, in casuthe non-directly effective European Arrest Warrant Framework Decision: EU law – also non-directly effective EU lawadopted by the Council without parliamentary co-decision – has primacy and trumps more protective nationalconstitutional rights, even if these are rights that aim to protect individuals against an infringement at their coreaffecting human dignity, as the Spanish Constitutional Court had determined to be the relevant nationalconstitutional standard under the Spanish Constitution. As we know, more or less obediently, the SpanishConstitutional Court subsequently lowered the Spanish constitutional standard for surrender and extradition ofpersons convicted in absentia. (However, it did so without giving up the supremacy of the Spanish Constitution overEU law, thus committing an act of judicial disobedience towards the ECJ.)Were vice-president Lenaerts and President Skouris retracting on the essence of Melloni by suggesting that highernational standards can apply? The very doctrinal tone of Melloni on primacy makes this unlikely. Instead, they musthave been referring to an obiter dictum that was irrelevant to the case decided in Melloni: it implies that when EU lawleaves discretion to Member States in the implementation and application of EU law, the Member States can applynational constitutional rights provisions. Why would the presidency of the Court of Justice turn this into the mostimportant message of Melloni, although this was irrelevant to the case and already for that reason trivial? Let us tryto understand this ex contrario by hypothetically taking the opposed view: the view that Member States are1/4prohibited to apply national standards protecting citizens’ rights when they have discretion. The revolutionary natureof this counterfactual hypothesis becomes clear when we realize that ‘discretion’ means that there is scope forautonomous action: Member State authorities are free to act in one way or another, and whether they do or not isentirely up to them. Under the counterfactual hypothesis Member States would thus be prohibited to apply theirconstitutional standards to their own autonomous action. This would signal the end of constitutional autonomy ofMember States.The happy message that the Court of Justice’s spokesmen bring us, then, is that this counterfactual hypothesisdoes not apply: the Member States may indeed apply their constitutional rules when they act autonomously inapplying and implementing EU law. That the presidency of the Court of Justice considers this the most importantmessage of Melloni (and Åkerberg Fransson) also reveals something different: it is by the grace of the Court ofJustice that Member States can apply their constitutions to their discretionary action. The Court of Justice evidentlyconsiders itself to be the ultimate arbiter of the scope of national constitutions, thus extending its power well beyondthe interpretation of EU law in the strict sense: even if EU law does not prescribe a certain course of action toMember State authorities, the power to decide on the applicability of national constitutions lies with the Court ofJustice, not with a national constitutional authority. In other words, the constitutive power has shifted from theMember State to the European Union impersonated by the Court of Justice.This is confirmed by President Skouris’ statement that ‘the Court of Justice is the Supreme Court of the EuropeanUnion’. Literally, this is saying that the Court of Justice enjoys supremacy, thus leaving behind the subtlety of thecase law which has so far only spoken in terms of ‘primacy’, not of ‘supremacy’. Evidently, this supremacy isextended over the national courts in the EU, including national constitutional courts. This supremacy explains why itis the European Court of Justice, not the national constitution itself or a national constitutional authority, to grant theapplicability of national constitutions to discretionary Member State action.Finally, President Skouris emphasized that the Court of Justice in being a supreme court is ‘not a human rightscourt’. A clear example of this was the Court extra-judicial interventions to create a cumbersome and costly extra‘prior involvement’ procedure at accession to the ECHR (Article 3(6) Draft Accession Agreement , Council of Europe)– a move that was in no way inspired by the protection of fundamental rights or any other citizens interest; itexclusively aimed to safeguard what the Court called its ‘prerogatives’ within the EU legal order. Melloni of course isthe other evidence that the Court of Justice is not a fundamental rights court: it took the position that the applicationof this secondary legislation cannot be conditional on compliance with EU or national fundamental rights in theconcrete case: the Council’s Framework Decision was exhaustive, so it suffices that it was considered to be inconformity with the ECHR and Charter in the abstract only. Moreover, it made clear that higher national levels ofprotection of fundamental rights in such cases of EU primacy always have to give way to lower EU standards.Costa v ENEL has often been understood to be inspired to promote the rights of citizens and thus to beconstitutionalist in nature: it gave primacy to the rights that citizens could directly derive from European law. Fiftyyears later, Melloni makes clear that primacy also applies to non-directly effective EU law that is to the detriment oftheir fundamental constitutional rights. The extra-judicial statements by the presidency of the Court of Justice onMelloni suggest that national constitutional rights no longer apply due to the autonomous nature of nationalauthority’s action, but they apply only by the fiat of the Court of Justice. Once upon a time Costa v ENEL may havebeen about citizens’ rights, but taken to its extreme 50 years later, it turns out to be about mere supremacy of EU lawfor which citizens’ rights have to be set aside.A case note on Melloni by Leonard Besselink has appeared in E.L.Rev.2014,39( 4), 531-552, also to be found here.LICENSED UNDER CC BY NC NDSUGGESTED CITATION  Besselink, Leonard F.M.: The ECJ as the European “Supreme Court”: Setting AsideCitizens’ Rights for EU Law Supremacy, VerfBlog, 2014/8/18, http://verfassungsblog.de/ecj-european-supreme-2/4court-setting-aside-citizens-rights-eu-law-supremacy/.We recently celebrated the 50th anniversary of one of the landmarks of the jurisdiction of the European Court ofJustice, the decision Costa v ENEL . In strong contrast to last year’s celebration of another founding stone ofEuropean law, the Van Gend & Loos decision, the Court of Justice seemed not to pay any attention. In reality,however, various members of the Court of Justice and others attached to the Court are engaged in a renewed effortto turn primacy into full supremacy of EU law over national constitutional law and constitutional courts well beyondCosta/ENEL.In the final plenary session of the FIDE conference in May 2014 in Kopenhagen Vice-president Koen Lenaertspointed out that in essence the recent Melloni judgment ‘made clear that the Member State constitutional courts canuse their national constitutional rights to provide more protection than the Charter does’. President Vassilios Skourisrepeated this, significantly opening his remarks by stating:‘The Court of Justice is not a human rights court; it is the Supreme Court of the European Union’.Lenaerts’ statement is at first sight deeply confusing, but on reflection the context provided by Skouris’ clarificationmakes clear that the message they want to convey is that it is entirely up to the Court of Justice to decide on theplace of national constitutional rights, even when it concerns autonomous Member State action. This message iscorrobated by others, such as former Judge Cristiaan Timmermans (The Magic World of Constitutional Pluralism.European Constitutional Law Review, Volume 10 September 2014 , pp 349-358, referring to Åkerberg Fransson)and CJEU legal secretary Daniel Sarmiento, who referred in his presentation at the Amsterdam Colloquium ‘Settlingthe supremacy of European law? Interdisciplinary perspectives on 50 years Costa v ENEL (26 June 2014) to bothMelloni and Åkerberg Fransson in order to make the same point as Lenaerts and Skouris. Thus, the Court, whichhad already disengaged primacy from direct effect in Melloni, is intent to go much further beyond Costa/ENEL.In order to understand this, let us first explain the cause of confusion caused by Lenaerts on the meaning of Melloni,and next consider Skouris’ statement as a further explanation.In Melloni, the Court of Justice judged that the Spanish Constitutional Court could not provide a higher level ofprotection for persons convicted in absentia for serious crimes. This, it held, would be in conflictwith EU law, in casuthe non-directly effective European Arrest Warrant Framework Decision: EU law – also non-directly effective EU lawadopted by the Council without parliamentary co-decision – has primacy and trumps more protective nationalconstitutional rights, even if these are rights that aim to protect individuals against an infringement at their coreaffecting human dignity, as the Spanish Constitutional Court had determined to be the relevant nationalconstitutional standard under the Spanish Constitution. As we know, more or less obediently, the SpanishConstitutional Court subsequently lowered the Spanish constitutional standard for surrender and extradition ofpersons convicted in absentia. (However, it did so without giving up the supremacy of the Spanish Constitution overEU law, thus committing an act of judicial disobedience towards the ECJ.)Were vice-president Lenaerts and President Skouris retracting on the essence of Melloni by suggesting that highernational standards can apply? The very doctrinal tone of Melloni on primacy makes this unlikely. Instead, they musthave been referring to an obiter dictum that was irrelevant to the case decided in Melloni: it implies that when EU lawleaves discretion to Member States in the implementation and application of EU law, the Member States can applynational constitutional rights provisions. Why would the presidency of the Court of Justice turn this into the mostimportant message of Melloni, although this was irrelevant to the case and already for that reason trivial? Let us tryto understand this ex contrario by hypothetically taking the opposed view: the view that Member States areprohibited to apply national standards protecting citizens’ rights when they have discretion. The revolutionary natureof this counterfactual hypothesis becomes clear when we realize that ‘discretion’ means that there is scope forautonomous action: Member State authorities are free to act in one way or another, and whether they do or not isentirely up to them. Under the counterfactual hypothesis Member States would thus be prohibited to apply theirconstitutional standards to their own autonomous action. This would signal the end of constitutional autonomy of3/4Member States.The happy message that the Court of Justice’s spokesmen bring us, then, is that this counterfactual hypothesisdoes not apply: the Member States may indeed apply their constitutional rules when they act autonomously inapplying and implementing EU law. That the presidency of the Court of Justice considers this the most importantmessage of Melloni (and Åkerberg Fransson) also reveals something different: it is by the grace of the Court ofJustice that Member States can apply their constitutions to their discretionary action. The Court of Justice evidentlyconsiders itself to be the ultimate arbiter of the scope of national constitutions, thus extending its power well beyondthe interpretation of EU law in the strict sense: even if EU law does not prescribe a certain course of action toMember State authorities, the power to decide on the applicability of national constitutions lies with the Court ofJustice, not with a national constitutional authority. In other words, the constitutive power has shifted from theMember State to the European Union impersonated by the Court of Justice.This is confirmed by President Skouris’ statement that ‘the Court of Justice is the Supreme Court of the EuropeanUnion’. Literally, this is saying that the Court of Justice enjoys supremacy, thus leaving behind the subtlety of thecase law which has so far only spoken in terms of ‘primacy’, not of ‘supremacy’. Evidently, this supremacy isextended over the national courts in the EU, including national constitutional courts. This supremacy explains why itis the European Court of Justice, not the national constitution itself or a national constitutional authority, to grant theapplicability of national constitutions to discretionary Member State action.Finally, President Skouris emphasized that the Court of Justice in being a supreme court is ‘not a human rightscourt’. A clear example of this was the Court extra-judicial interventions to create a cumbersome and costly extra‘prior involvement’ procedure at accession to the ECHR (Article 3(6) Draft Accession Agreement , Council of Europe)– a move that was in no way inspired by the protection of fundamental rights or any other citizens interest; itexclusively aimed to safeguard what the Court called its ‘prerogatives’ within the EU legal order. Melloni of course isthe other evidence that the Court of Justice is not a fundamental rights court: it took the position that the applicationof this secondary legislation cannot be conditional on compliance with EU or national fundamental rights in theconcrete case: the Council’s Framework Decision was exhaustive, so it suffices that it was considered to be inconformity with the ECHR and Charter in the abstract only. Moreover, it made clear that higher national levels ofprotection of fundamental rights in such cases of EU primacy always have to give way to lower EU standards.Costa v ENEL has often been understood to be inspired to promote the rights of citizens and thus to beconstitutionalist in nature: it gave primacy to the rights that citizens could directly derive from European law. Fiftyyears later, Melloni makes clear that primacy also applies to non-directly effective EU law that is to the detriment oftheir fundamental constitutional rights. The extra-judicial statements by the presidency of the Court of Justice onMelloni suggest that national constitutional rights no longer apply due to the autonomous nature of nationalauthority’s action, but they apply only by the fiat of the Court of Justice. Once upon a time Costa v ENEL may havebeen about citizens’ rights, but taken to its extreme 50 years later, it turns out to be about mere supremacy of EU lawfor which citizens’ rights have to be set aside.A case note on Melloni by Leonard Besselink has appeared in E.L.Rev.2014,39( 4), 531-552, also to be found here.LICENSED UNDER CC BY NC NDSUGGESTED CITATION  Besselink, Leonard F.M.: The ECJ as the European “Supreme Court”: Setting AsideCitizens’ Rights for EU Law Supremacy, VerfBlog, 2014/8/18, http://verfassungsblog.de/ecj-european-supreme-court-setting-aside-citizens-rights-eu-law-supremacy/.4/4

The ECJ as the European "Supreme Court": Setting Aside Citizens’ Rights for EU Law Supremacy

https://pure.uva.nl/ws/files/2335434/177513_verfassungsblog.de_The_ECJ_as_the_European_Supreme_Court_Setting_Aside_Citizens_Rights_for_EU_Law_Supremacy.pdf

The ECJ as the European "Supreme Court": Setting Aside Citizens’ Rights for EU Law Supremacy

Abstract

Similar works

Full text

Available Versions

International Migration, Integration and Social Cohesion online publications