APPENDIX 15
Memorandum from Anthony Arnull, Professor
of European Law, University of Birmingham
The Committee will find set out below brief
responses to the questions contained in the letter sent to me
by its Clerk on 21 December 2004.
THE UNION'S
VALUES AND
OBJECTIVES (ARTICLES
2 AND 3)
Articles I-2 and I-3 of the Constitutional Treaty
(CT) are intended to offer, not just to specialists but also to
the ordinary citizen, a clear and concise statement of the Union's
values and objectives. Their potential legal significance is in
my view twofold.
— First, in cases of ambiguity, the
Union Courts would be likely to prefer an interpretation of other
provisions which is consistent with the Union's values and objectives
as set out in Articles I-2 and I-3. This may be significant when
the Courts interpret the legal bases for Union action contained
in Part III of the CT or acts of the institutions adopted under
those legal bases.
— Secondly, Articles I-2 and I-3 may
be relevant if the Courts are called upon to find a solution to
a problem for which the CT does not expressly provide. All courts
are sometimes confronted with problems of this type. The Union
Courts are likely to be reluctant to endorse a solution which
would have the effect of undermining the Union's values and objectives
as set out in a Treaty agreed unanimously by the Member States
and ratified by each of them in accordance with their own constitutional
requirements.
There is one case where the CT expressly prohibits
the Court from taking into account the values set out in Article
I-2. Breach by a Member State of those values may in extreme cases
lead to the suspension of certain of its rights under Article
I-59 CT. By virtue of Article III-371 CT, the Court of Justice
will have jurisdiction, at the request of the Member State concerned,
to rule on the legality of acts adopted under Article I-59, but
"in respect solely of the procedural stipulations contained
in that Article." This may draw the Court into potentially
sensitive disputes over the Union's values, even though strictly
speaking it will not be entitled to take them into account.
PRIMACY AND
KOMPETENZ-KOMPETENZ
I am not a German lawyer and am not therefore
best placed to comment on whether the German Federal Constitutional
Court would regard the CT as justifying a departure from the Maastricht
decision on the issue of Komptenz-Kompetenz. German writers
suggest that that decision was a product, not just of Germany's
particular constitutional arrangements, but also of the political
context in which the debate over the Treaty on European Union
was conducted there. That context might now be different.
There is no doubt that, as a matter of Union
law, the power the Federal Constitutional Court arrogated to itself
in the Maastricht decision to review whether the Community institutions
had acted within the limits of their powers would, if exercised,
involve an infringement of Germany's Treaty obligations and that
the remedies laid down in the Treaty for dealing with such infringements
would be applicable. There is also no doubt that it is not feasible
to envisage a situation in which the validity of Union acts might
be reviewed by the superior courts of all 25 Member States for
compatibility with values regarded as important in their respective
legal orders.
The CT will therefore preserve the exclusive
jurisdiction of the Union Courts to rule on the validity of Union
acts. Moreover, it contains various provisions which might lead
at least some national courts to feel more comfortable with that
situation than perhaps they do at present.
First, the provisions on competences in Title
III of Part I of the CT, particularly the emphasis on the principles
of conferral and subsidiarity, ought to reassure national courts
that the Court of Justice will build on its recent case law on
competence issues by examining closely the scope of the legal
bases contained in Part III of the CT.
More generally, the CT contains a number of
provisions which serve to underline that the roots of the Union
lie in the common values and constitutional traditions of the
Member States and that those traditions, and the rights they recognise,
will be respected (see eg Articles I-2, I-5, II-112(4) and II-113
CT). These features of the Constitutional Treaty were emphasised
by the Spanish Constitutional Court in its declaration of 13 December
2004 that the Treaty was compatible with the Spanish Constitution.
The Treaty provisions referred by the Spanish Government to the
Constitutional Court included the primacy provision, Article I-6.
The Constitutional Court pointed out that, in the last resort,
the supremacy of its national constitution could be preserved
by Spain's withdrawal from the Union under the procedure laid
down in Article I-60 CT.
It has also been argued that restraint on the
part of the national courts might be reinforced in States where
ratification of the Constitutional Treaty involves an amendment
to the national constitution which itself accords primacy to Union
law or where the mere act of ratification is seen as an act of
the national constituent power, a real possibility where ratification
has been approved by referendum. The situation will vary from
State to State. A rather different line from that of the Spanish
Constitutional Court was taken by the French Conseil Constitutionnel
in its decision of 19 November 2004. The Conseil ruled that France
could not ratify the Constitutional Treaty without amending its
Constitution. However, it expressly excluded Article I-6, the
primacy provision, from the category of provisions it considered
inconsistent with the French Constitution. It came to that conclusion
on the basis of an understanding of Article I-6 that is unlikely
to be shared by the Court of Justice when, as seems inevitable,
it is eventually asked to rule on that provision.
The effect of the Conseil's ruling is difficult
to predict. One possibility is that the ordinary French courts,
bound by the decisions of the Conseil by virtue of Article 62
of the French Constitution, will find it very hard to follow inconsistent
case law of the Court of Justice. Another is that, once the French
Constitution has been amended and the Treaty ratified, the French
courts will regard themselves as authorised to give effect to
it in accordance with the case law of the Court of Justice. The
draft amendment to Title XV of the French Constitution recently
presented to the Assemblée Nationale provides that, "[d]ans
les conditions fixées" by the CT, "la France
participe a" l'Union européenne . . ." The "conditions
fixées" by the CT will be determined in cases of doubt
by the Union Courts. Language such as that currently proposed
might therefore be regarded by the French courts as authorising
them to follow the Luxembourg case law.
THE CHARTER
AND ITS
HORIZONTAL CLAUSES
Field of application
The quotation from the "explanation"
of Article II-111 (ex 51) contained in the letter of 21 December
2004 is incomplete: the explanation goes on to cite a decision
of the Court of Justice which only refers to Member States when
they implement Community rules. Taken as a whole, the explanation
seems to confirm that the Charter is not intended to affect the
Member States when they act within the scope of Union law in a
broader sense, for example, when they rely on an exception or
a derogation. However, the general principle of respect for fundamental
rights enshrined in the case law of the Court of Justice, and
preserved by Article I-9(3), applies to the Member States when
they act within the scope of Union law. There is a certain incoherence
in according the general principle a broader scope than the Charter.
It is not inconceivable that the Court of Justice would regard
the explanation of Article II-111 as authorising it to align the
scope of the Charter with that of the general principle, even
though that would undoubtedly involve some stretching of the language
of that provision.
Citizenship
The Court of Justice has already made it clear
that citizenship of the Union is destined to be the fundamental
status of nationals of the Member States. That status enables
such nationals who find themselves in the same situation to enjoy,
within the material scope of the Treaty, the same treatment in
law regardless of their nationality, but subject to exceptions
which have been expressly laid down (see eg Case C-148/02 Garcia
Avello v Etat Belge [2004] 1 CMLR 1).
Citizenship does not in itself affect the material
scope of the Treaty; it requires Member States not to discriminate
against the nationals of other Member States in situations which
fall within the material scope of the Treaty. When a Member State
seeks to rely on one of the exceptions for which Community law
expressly provides, it must comply with the general principle
of respect for fundamental rights. The rights upheld by the Court
under that rubric include those enshrined in the European Convention
on Human Rights (see eg Case C-60/00 Carpenter v Secretary
of State [2002] 2 CMLR 64). Article II-111 suggests that the
Charter would not apply where a Member State relied on an exception
laid down by Union law (see above), but this seems unlikely to
make any practical difference.
In a case decided in the early 1990s, Advocate
General Jacobs argued that, when a Community national went to
another Member State as a worker or a self-employed person, he
was entitled to "be treated in accordance with a common code
of fundamental values, in particular those laid down in the European
Convention on Human Rights. In other words, he is entitled to
say "civis europeus sum" and to invoke that status in
order to oppose any violation of his fundamental rights."
(See Case C-168/91 Konstantinidis [1993] ECR I-1191, 1212.)
The Court decided the case on narrower grounds, but the possibility
cannot be excluded that it will one day endorse a view similar
to that put forward by Advocate General Jacobs, whether or not
the CT enters into force. Either way, the crucial question is
what the material scope of the Treaty is. The answer to that question
is not affected by the Charter, as Article II-111(2) makes clear.
Legitimacy
I agree with Professor de Brca that the Charter,
as incorporated in the CT, may strengthen the legitimacy of the
Union. Article I-1 CT makes it quite clear that the new Treaty
will not convert the Union into a State: on the contrary, the
Union will continue to depend for its existence on the Member
States and will only have the competences they have chosen to
confer on it in order to attain certain common objectives. None
the less, the Union exercises and will continue to exercise powers
which would otherwise be exercised by the Member States and ought
to offer equivalent protection for the fundamental rights of its
citizens. The need for such protection has been emphasised by
the German Federal Constitutional Court and by the European Commission
and Court of Human Rights.
The incorporated Charter would offer citizens
of the Member States enhanced protection against infringements
of their fundamental rights by the institutions of the Union.
Even though the Charter contains provisions which the Union institutions
are unlikely to infringe or which concern fields in which the
Union will have no, or only limited, competence to legislate,
the Union needs to be able to demonstrate that it recognises the
fundamental rights it expects third countries to observe, notably
in the context of the enlargement process and its development
co-operation activities. The Union would lack credibility if it
criticised a country for not respecting the prohibition on torture,
for example, if no such prohibition featured in the Union's own
bill of rights. Provisions concerning fields in which the Union
lacks legislative competence may none the less be relevant to
the interpretation of Union acts. The Charter cannot have the
effect of extending the Union's powers: see Article II-111(2).
As for the Court of Justice, I do not think
it is relevant to compare it with the US Supreme Court (which
is much older) or the German Federal Constitutional Court (which
is the product of particular historical and political circumstances).
If one accepts the view of the Convention on the Future of Europe
and the Member States that the Charter should be part of the CT,
as I do, then the Court of Justice has to be given jurisdiction
to rule on its meaning and effect. It will share that responsibility
with the courts of the Member States. Over the half century or
so of its existence, the Court of Justice has established a good
reputation among the national judiciary and the legal professions
in the Member States. I believe we can have confidence in its
ability to interpret and apply the Charter in an appropriate and
measured way, although, as with all courts, there will inevitably
be some decisions which attract criticism. If the Union were to
accede to the European Convention on Human Rights, as envisaged
by Article I-9(2) CT, the decisions of the Court of Justice would
of course be subject to the scrutiny of the European Court of
Human Rights in Strasbourg.
Article II-112(3)
As the "explanations" make clear,
Article II-112(3) means that provisions of the Charter which correspond
to provisions of the ECHR must be interpreted as conferring at
least an equivalent degree of protection, but do not prevent a
greater degree of protection from being provided. This is consistent
with the ECHR: see Article 53.
Article II-112(5)
The last sentence of Article II-112(5) means
that Charter provisions containing principles may be taken into
account by a court only when they are considering the interpretation
or validity of acts giving effect to such principles. The principle
has to be implemented by a Union institution, or by a Member State
when giving effect to Union law, before it can be considered by
a court.
JURISDICTION OF
THE ECJ UNDER
THE CONSTITUTIONAL
TREATY
Article 10 of the EC Treaty imposes on the Member
States a duty to take all appropriate measures to ensure fulfilment
of their Treaty obligations and to facilitate the achievement
of the Community's tasks. The Court calls this the principle of
sincere co-operation. The Court has held that the same principle
applies to the institutions both in their relations with the Member
States and among themselves: see eg Case C-65/93 Parliament v
Council [1995] ECR I-643, para 23; Case 2/88 Imm Zwartveld and
Others [1990] ECR I-3365, paras 17 and 18. Article I-19(2) seems
to be intended to reflect that case law in so far as relations
between the institutions are concerned. Like the case law of the
Court, it is concerned mainly with the political institutions.
Although in principle it also applies to the Court of Justice,
it will be for the Court to decide what that means in practice
if called upon to do so. The Court can be relied on to ensure
that respect for the rule of law, one of the values of the Union
mentioned in Article I-2, is not undermined.
It is impossible to do justice to the richness
of the Court's case law in a single sentence. There is no doubt
that it has made a significant contribution to the development
of the Union. However, while some of its decisions have been adventurous,
others have been characterised by restraint. There are even some
which display at the same time both adventurousness on some points
and restraint on others. The CT demonstrates that there is no
general sense of dissatisfaction with the Court among the Governments
of the Member States. The Court's position would if anything be
even more central if the CT were to enter into force than it is
at present. Indeed, the CT gives the existing case law a striking
vote of approval, Article IV-438(4) providing that it "shall
remain, mutatis mutandis, the source of interpretation of Union
law . . ."
The Court's main concern is, and will continue
to be, ensuring that the law is observed in the interpretation
and application of the Treaty. The Court will take account of
the Union's values and objectives set out in Articles I-2 and
I-3. The values contained in Article I-2 are the most fundamental
ones: the Union is said to be "founded" on them and,
if a Member State commits a serious and persistent breach of them,
its Treaty rights may be suspended. One of the values mentioned
is respect for human rights. Moreover, Article II-113 provides
that the Charter is not to be interpreted as restricting fundamental
rights recognised, in their respective fields of application,
by (among other things) the ECHR and the Member States' constitutions.
When the Union accedes to the ECHR, the case law of the Court
of Justice would be subject to the scrutiny of the Strasbourg
Court. I therefore think that the Court of Justice is likely to
prove a doughty defender of the rights enshrined in the Charter.
CONSEQUENCES OF
COLLAPSE OF
PILLARS—DIRECT
EFFECT
The conversion of what are now framework decisions
within the meaning of Article 34(2)(b) TEU into European framework
laws within the meaning of Article I-33(1) CT is in my view desirable.
Direct effect is essentially a mechanism for dealing with the
situation, still all too common, where Member States fail to give
effect to measures of this type properly, thereby creating discrepancies
in the way in which they apply across the Union and potentially
depriving their beneficiaries of the rights they were intended
to enjoy. Direct effect to some extent enables those consequences
of non-implementation or defective implementation to be avoided.
In order for a provision to have direct effect, it needs to display
a certain degree of precision. Qualified majority voting should
help to ensure that agreement is not impossibly difficult to reach.
Acts which lack precision but which the Member States are expected
to implement are in any event undesirable.
Infringement proceedings by the Commission will
offer another means of ensuring that Member States comply with
their obligations to implement European framework laws. Such proceedings
are not at present available when Member States fail to give effect
to framework decisions adopted under Title VI TEU. It is simply
not tenable to argue that Member States should not be exposed
to infringement proceedings when they fail to meet their commitments.
However, infringement proceedings are not a substitute for direct
effect: they offer no remedy for individuals adversely affected
by the infringement and take some time to conclude.
FOREIGN AND
SECURITY POLICY
Article I-16 CT is one of the provisions on
the CFSP which will be within the jurisdiction of the Court of
Justice. That provision describes the Union's competence in relation
to the CFSP and, in its second paragraph, imposes certain obligations
on the Member States. The Court of Justice might well consider
at least some of those obligations justiciable. It is not entirely
clear whether the Court is really intended to have jurisdiction
over that paragraph, since it overlaps to a considerable extent
with Article III-294(2). The latter provision, which is excluded
from the jurisdiction of the Court of Justice by Article III-376,
gives to the Council of Ministers and the Union Minister for Foreign
Affairs the task of ensuring that the principles it lays down
are respected. Unlike Article I-16(2), however, Article III-294(2)
does not require Member States to comply with "the Union's
action in this area." This raises the question whether the
Court is intended to have the power to review compliance by Member
States with that requirement. Presumably the answer to that question
is "yes", for otherwise the apparently deliberate exclusion
of Article I-16 from Article III-376 would be undermined.
The limited jurisdiction of the Court of Justice
over the CFSP becomes particularly problematic in the context
of Article I-6, the primacy provision. The existing doctrine of
primacy does not extend to the second or third pillars. The abolition
of the pillar structure would make the doctrine of primacy potentially
applicable across the entire range of the Union's activities.
Because most of the provisions on the CFSP would fall outside
the jurisdiction of the Court, it is unclear to what extent a
national court would in that context be able to ask the Court
of Justice for guidance on the effect of Article I-6 (which would
itself be within the jurisdiction of the Court). If national courts
are left to their own devices, there will inevitably be divergence
between Member States.
The Union's growing ambitions in the field of
foreign policy, particularly the increasing scale of its military
operations, make it almost inevitable that its actions will be
subjected to legal challenge. The recent Baha Mousa case in the
Court of Appeal and the unsuccessful applications filed by Serbia
and Montenegro at the International Court of Justice against a
number of States, including the United Kingdom, provide examples
of the types of legal dispute to which military action may give
rise. The court best placed to deal with such disputes arising
out of action taken by the Union in the framework of the CFSP
is the Court of Justice.
24 January 2005
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