Examination of Witnesses (Questions 100-119)
PROFESSOR PIET
EECKHOUT AND
PROFESSOR GRINNE
DE BÚRCA
8 DECEMBER 2004
Q100 Mr Bacon: Nonetheless,
there are universal values which everyone can subscribe to?
Professor De Búrca: I doubt
whether they could be called universal at present, but there is
a set of values which could perhaps be universalised. It is a
Kantian notion in many ways, but there are values which could
be treated as universal and certainly if you take a regional context
like Europe—and Habermas's "constitutional patriotism"
has been debated very actively in the EU context—it is quite
possible to imagine that if there is sufficient public engagement
with the whole process of Europeanisation, that some sense of
commitment to these values—not replacing the nation state
but supplementing the nation state with a wider community in which
a degree of political solidarity can exist between states, although
not ever the kind of solidarity that exists between local communities
or even regional or national communities, but a different kind
of solidarity. I find it a very appealing idea in normative terms,
but I guess it is harder to see it arising at present given how
divided Europe is in many respects.
Q101 Mr Bacon: Is it not
why we don't need to have stuff that bears no relation to folk
in any of our constituencies and never will. Let me give you an
example, this Committee met Professor Rocco Buttiglione when he
was a Europe Minister in Italy. I remember he told us—and
I wrote it down—that Europe had these shared values and
he described three things: Greek philosophy, Roman law and Christian
morality. Certainly in terms of his Christian morality he was
no different from Jean Monnet or Robert Schuman or any of the
founding fathers, indeed, I think he thought that he believed
in what were regarded as the orthodox teachings of the Catholic
Church. I happen to disagree with him, but that is beside the
point from the point of view of this argument. So far outside
the pale of the mainstream of European values did he find himself,
and despite this, that he was considered ineligible to become
a commissioner. What kind of basis is that for shared values,
and do you seriously think that the Charter both heralding and
concretising a shift in the limited underpinning of the EU polity
is going to play very well in the United Kingdom or anywhere else?
Professor De Búrca: I suppose
I disagree with you about that. One person does not articulate
the shared values of Europe, so Buttiglione's view does not necessary
constitute those. That is not expressed in the Charter or the
Constitution.
Q102 Mr Bacon: There is
explicitly no reference to Christian morality in it and that was
a source of huge contention.
Professor De Búrca: Exactly,
but it is not there and that may be the case. It may be more understandable
why somebody who would express a fairly strong view of a particular
religious nature would be considered ineligible for a post which
is committed to precisely the opposite values, for example a commitment
to non-discrimination on the grounds of sexual orientation does
not fit well with an Orthodox or Catholic position. If I could
go to your more general point which is how could this appeal to
the ordinary person? I think it can because in the written evidence
I submitted, I suggested that one of the values that is now expressed
in the Treaty is a very strong commitment to respect for international
institutions and for the United Nation's Charter. I think that
was very explicitly put in to distinguish Europe from the United
States and to try to express a very clear stance on Europe's international
identity. I believe that Europe's international role and identity
is something that can appeal much more to people who were very
engaged with the issue of the Iraq war, who were very engaged
with issues of hegemony and multi-polarity versus uni-polarity
and who would be interested in the idea of Europe being a counter-voice
to some other powers on the world stage. I think these things
can be translated and there are some values expressed in the Treaty
which I think even in your constituencies you might be able to
get across.
Q103 Mr Heathcoat-Amory:
Article II-52(3) states that the rights in the Charter which correspond
to European Convention Rights should be given the same scope and
meaning as the latter, exemption rights. On the other hand, the
Article adds that this requirement " . . . shall not prevent
Union law providing more extensive protection . . .". Since
expanding one right might lead to the reduction of another, how
would you reconcile these two apparently contradictory provisions?
Professor Eeckhout: I think the
two principles can and must be reconciled in the sense that the
European Convention on Human rights is generally regarded to establish
a minimum standard of fundamental rights protection. In any event,
the European Union within the context of the policies which it
develops on the basis of the constitution would be able to go
further on the condition that this does not conflict with any
other European Convention rights. If that was to be the case,
because the Convention, within every right which is listed, establishes
a minimum standard of protection, then that is the standard from
which one cannot derogate, also not on the basis of promoting
another right which is in the convention, I think that would be
the formal way of looking at it. If you look into human rights
law in practice and before the courts, things often become more
complicated, but that is the nature of fundamental rights. I can
see how the two provisions can be very well reconciled; I cannot
really see a problem.
Professor De Búrca: I was
going to give an example of an area, I think Professor Eeckhout
mentioned the Carpenter case, which was one on I guess you would
call it the right to family reunification or at least that is
the way it has been interpreted in the European context. This
was where the European Union went further than the level of protection
which the Convention gives. For example, the right of somebody
who is married to a non-national, in the case of Carpenter a non-EU
national, to have that person with them even where they have breached
national immigration law and where their right to remain together
as a family is more important than the particular provision of
national law, especially if it is a fairly technical provision,
rather than a serious violation of public order. In the Convention
context as long as the family can be together, if they can be
together in another country then there is not necessarily a right
to remain, but in the EU context because there is a fundamental
right for EU citizens to move and work within Europe—a part
of the integration of migrant workers provisions—the Court
of Justice went further and cited a case of the European Court
of Human rights, and went a bit further in its own Ruling in terms
of the right of this particular man to have his wife with him,
even though she had technically violated immigration law. Your
other question was if you say greater protection can be given
to that right, what if that happens to reduce another right? That
is a problem of human rights law in general, in other words, even
within the Convention system, once you protect a certain right,
freedom of expression may restrict another right. There is a balancing
in that sense and it simply adds a new element to that balancing
process.
Q104 Mr Heathcoat-Amory:
You cite perhaps the obvious example the clash between Article
8, on the respect for private life and Article 10, the freedom
of expression. I suppose the question I am asking you is if the
Union was to favour the Article 8 right in a particular situation
over the Article 10 right, would this favouring of the Article
8 rights have to be read down so as to comply with ECJ jurisprudence
or would the ECJ simply say it was a case of providing more extensive
protection?
Professor De Búrca: I can
imagine in a particular case if the EU wanted to give a stronger
protection to privacy than to expression in the context of a particular
conflict, if it was a direct conflict with a case of the European
Convention on Human Rights, it would be difficult to justify that
but not impossible because there are a whole series of cases.
I think one of the things the Explanatory Memorandum to the Charter
does is it indicates cases where although the rights are comparable,
the justifiable restrictions are different because of the particular
EU context. If the reason for giving higher protection to the
right to privacy was because of something fundamental to the EU,
like the example I gave on mobility of migrant workers or something,
then I can imagine that would be a justification for the ECJ giving
a different interpretation. They would not necessarily see it
as a conflict because what it means by less extensive or more
extensive is very ambiguous. I can imagine giving a different
interpretation to the right in that context, even though freedom
of expression in that context would be more narrowly read therefore.
This is speculative, the point is we do not know how the Court
of Justice would do it. I can imagine however that that could
give a justification, because while the Court of Justice has always
tracked the Strasbourg case law and has always looked to it, it
has never treated it as binding and the language is very careful
in the Charter. It does not say that the Strasbourg Courts' judgments
are binding on ECJ, it refers simply to the meaning and scope
of the rights and does not refer to the courts at all. That room
for manoeuvre is left to the European Court of Justice.
Q105 Mr Heathcoat-Amory:
The meaning and scope of the rights shall not necessarily be the
same as those in the ECJ?
Professor De Búrca: I think
you would have to have identical situations. Whenever I try to
think of this in practice I think the only way you could argue
that there has been a violation of that provision is if you had
identical situations. It is always possible to say: "It is
necessary in a democratic society", but in this particular
case the facts are slightly different and, therefore, you cannot
say that the level of protection is necessarily lower because
you have a different factual context. Unless—and it might
happen—identical cases are brought before the courts, which
has been done occasionally, like in the Irish abortion cases where
in the end it was the Strasbourg Court that exercised jurisdiction
and not the European Court of Justice. The two Courts are very
careful to co-ordinate and apparently they informally collaborate
and talk to each other without making formal references; they
are very careful not to interfere with each others judgments.
Obviously there will be far more room for overlap if and when
the Charter comes into effect, so it will be interesting to see
how they co-ordinate.
Q106 Chairman: What do
you think would be the Charter's significance if the Constitutional
Treaty was not adopted?
Professor De Búrca: I think
this has been in some of the evidence you have already received
already. There was a declaration by the Commission, Parliament
and the Council at the time that they would treat the Charter
as binding upon them. Of course they have every right to do that
and nobody on the whole objects to the idea of the Institutions
binding themselves by this since it does not empower them at all,
but supposedly it could act as a restriction. I have argued that—and
it is debatable—it could re-orient, as I said at the beginning,
the nature of their powers but on the other hand, the Charter
says that it does not modify the powers or tasks of the Union
in any way. Certainly those three institutions, already every
proposal the Commission drafts supposedly has to consider its
compatibility with the Charter, just as the Human Rights Committee
here does in relation to the Convention on Human Rights so it
is in the practice of the institutions already. On the whole,
the Court of Justice has not made serious reference to it, except
in passing where parties have argued it. On the other hand, the
Court makes reference to all the rights contained in it—most
of them anyway—via the European Convention. I do not think
it would make a lot of difference to be honest. Certainly, it
makes a very strong legal statement if the Constitution is adopted
and the Charter is in Part 2, but even if it is not, my guess
would be that the Court, which has refrained from citing the Charter
so far because it was waiting—this is my understanding from
talking to some of the justices—to see what was decided
politically, they do not feel it appropriate to cite the Charter
in the meantime, but if the Constitution fails for whatever reason
there is enough consensus around the Charter that I can imagine
it coming into effect de facto.
Professor Eeckhout: If the Constitution
does not enter into force and the Charter is not made binding
in any event, the Court needs to stick to the existing principles,
which are that the Court itself can define which fundamental rights
are protected under EU law as general principles of EC law on
the basis of international human rights instruments and the constitutional
provisions common to the Member States. I think the Court would
look at the Charter as some kind of expression—not necessarily
even mentioning it—of agreed fundamental rights and might
take up some of those rights and build those rights into its case
law. Of course the Courts are very much aware of the existence
of the Charter. I think in the end the position may be very comparable
in relation to what you have if the Constitution does enter into
force in terms of fundamental rights protection.
Q107 Mr Heathcoat-Amory:
Can I turn to the impartiality of the Court more explicitly, Professor
De Búrca, you and many others have described the activism
of this Court in its judgments which tend to make it an engine
of European integration and to promote European Union powers.
How is this reconciled with its duty to administer impartially
human rights, and in particular the Constitution, when it goes
into questions quite inadvertently of justice and home affairs
legislation? Do you think there is a danger of a hidden agenda
here which will undermine its status and impartiality?
Professor De Búrca: I think
I would qualify the first thing you said, which is that my view
about the Court and its character in terms of activism or in-activism
is that it is a Court that has always been, what I would call
sensitive to the particular political context. It has periods
of great activism of the kind you describe, very clearly promoting
certain values and periods when it has been criticised for not
being sufficiently activist, especially on fundamental rights
in cases involving same sex issues, sexual orientation questions
and immigration questions. It is very difficult and also, since
the Court is a constantly changing body, it has expanded enormously
in size and I think it is going to be very difficult to attribute
a single kind of motivation to the Court or a single stance. In
recent years it has been much more difficult to characterise it.
Some of its judgments are surprisingly cautious where it might
easily have reached a different conclusion. Some of them remain
reasonably activist and it is true, as Professor Eeckhout mentioned,
that some of the citizenship case law has been, what I would consider,
the most activist in moving ahead and expanding law in areas where
it is not obvious that is what the legislative text means and
so on. Yes, the question of judicial activism is always one that
raises questions about the legitimacy of a Court. The other point
is, and I think it is very convincing when I have heard it said,
a Court which chooses to be conservative in the sense of cautious
is equally being activist in a different direction. Activism works
in different ways because judicial interpretation is always a
very open matter and it is very indeterminate. Let us take some
of things that we have been discussing: how would we know what
the intention behind a particular clause was? For example, even
if we take the rights versus principles issue we were talking
about, you could say the intention of the UK, Ireland, and I think
the Netherlands, was to try to limit the justicability of economic
and social rights, but do we know that for sure about the others
who signed it, how do we attribute intent to these? They may have
been raising a fairly rough smoke screen to try to ensure the
Charter was adopted without too much hindrance to the enforcement
of some of its provisions. I find it very difficult to know whether
a court being active or inactive is something that affects its
legitimacy positively or negatively. It is important that a court
always takes basic legal principles of interpretation into account
and everyone can agree when a particular interpretation is really
way outside the text, but when it comes to provisions that are
reasonably capable of being interpreted in different ways, then
choices are ones which express particular preferences and values
and it is quite difficult, given how many different sorts of values
are expressed in the Constitution, to say which way the Court
should or should not go. In the area of justice and home affairs
or anyone where the Court is too zealous in promoting the legislative
powers of the Union is a matter for criticism. Or where the Court
is too zealous in being creative with provisions and going beyond
a shared understanding in comparative law jurisprudence it is
potentially open to criticism. On the other hand, there are those
who say that the role of a Court is also to interact with the
legislator and not simply passively to apply legislation, but
also to interpret it creatively in response to changing circumstances.
Q108 Mr Heathcoat-Amory:
There is a specific clause in the Constitution, in 18(3), that
sets out the various institutions of the Union, the Commission,
the Council and the European Court and then says: "The Institutions
shall practise full mutual co-operation". What do you make
of a judge on a court who may be sitting in judgment over something
which is about the powers of a Member State or an individual in
a Member State as against the Union and here the instruction is
to practise full mutual co-operation with the other EU institution?
Do you not think that that is a very odd statement to put into
a Constitution when they are trying to protect the impartiality
of a Court?
Professor De Búrca: It
is a very ambiguous phrase, although it is true the Court itself
has used the language of sincere co-operation, but only in reference
to its relationship with national courts. It has seen itself as
being under a duty to co-operate with national courts and they
are under a duty to co-operate with it in terms of being given
assistance if references are made and so on. It is true that mutual
sincere co-operation would be a very strange phrase to use in
terms of the relationship of a court to the political institution
because under the separation of powers principle, the court is
supposed to be ensuring the political institutions observe the
limits of their powers whereas, on the whole it is not for the
political institutions to ensure that the court observes the limits
of its powers.
Q109 Mr Heathcoat-Amory:
Can I ask you if Irish Courts are mandated to practise full mutual
co-operation with the Irish Government when they are sitting in
judgment over a human rights issue?
Professor De Búrca: No.
Q110 Mr Bacon: Can you
name a single court in the world that is obliged to operate in
the spirit of full mutual co-operation with the Executive of which
it is part of the same polity?
Professor De Búrca: It
is interesting, on the one hand, your question seems to suggest
that you are afraid that the court might be too activist, and
then on the other hand, you assume that the court will interpret
this very ambiguous phrase as imposing a duty on it to co-operate
sincerely with the institutions. My sense would be that the European
Court of Justice is independent enough to fully safeguard its
independence which it has done over the years. There is no sense
in which the Court has treated itself as being subject to either
national political control or European political control and maybe
that is one of the criticisms that people have often asked who
watches the watchdog. My sense is that it is unlikely the court
would treat that as in any way compromising its judicial independence.
Q111 Mr Bacon: Could you
answer my question?
Professor De Búrca: Could
you repeat your question?
Q112 Mr Bacon: Could you
name any court in the world, apart from the European Court of
Justice, that is subject to this type of provision?
Professor De Búrca: I am
not sufficiently familiar with the comparative judicial provisions
that exist.
Q113 Mr Cash: I could
offer you a number of examples and most of them are pretty authoritarian,
but that is a problem which I think this European Constitution
and the whole of this political system which is being created
represents. I very much agree with the sentiment behind what Mr
Bacon said. The question which I am going to ask on this issue
goes to the heart of what you said in your leading text book,
which is that the ECJ is generally perceived to have pursued a
vigorous policy of legal integration over the years and in particular
in the earlier decades of the Community's history, and the role
and primary concern of the Court is to enhance the effectiveness
of Community law and to promote its integration into national
legal systems. I would say that is a cuckoo in the nest and it
goes back to my earlier question about the disapplication of national
laws where they are expressly and unambiguously inconsistent with
the Treaties, the rulings of the Court and the laws of the acquis,
in other words who rules, is it the voters—to go back to
your point about basic legal rules and the need to interact with
the legislature—or, as I would prefer, basic constitutional
principles which are based upon the democratic decision-making
of the voters in a general election irrespective of what the European
Community prescribes. In a general election if voters of a particular
country decide that they want to have laws which are expressly
inconsistent provisions of the Constitution or indeed the existing
Treaties, the question is who rules? I say the voters, but you
and the establishment of the European system will say that ultimately,
as the Constitution prescribes, it has to be the European Court
of Justice. I do not see that as a democratic system at all, do
you?
Professor De Búrca: That
would not be my view; in a sense my view is beside the point.
My view would be that the European Court of Justice within its
particular institutional powers and configuration has seen that
as its role. It has seen its role being to promote the effectiveness
of EC law. In my view a court in Britain has the right to decide
for itself whether in the court's own interpretation of its constitutional
system and where its position is within that and the way in which
the constitution or the EC Treaties have been given effect by
British constitutional law to decide within that whether they
are under a duty to disapply an Act of Parliament or to give effect
to an Act of Parliament which expressly contradicts EU law. In
my view, I did not answer the question on primacy earlier, the
provision on primacy does not change the existing situation which
is that national constitutional courts, without anyone saying
they violated EC law, simply pose a challenge to the Court of
Justice in saying: "Our loyalty is to our Constitution and
in so far as our Constitution mandates we are a part of the European
system then we will give effect to EC laws" but if there
is a clash and the clash is in an area over which we have jurisdiction
within our jurisdictional system, then Kompetenz-Kompetenz does
not lie with the European Court of Justice. That question has
never been expressly addressed by British courts and in my view
it is an open question how they might deal with it.
Q114 Mr Cash: That is
the danger, and it is because of what Jack Straw has conceded
to me on 9 September, for your record, with respect to the question
of the Article 1(5) point, who rules okay, the Constitution or
the Constitution of the Member States including the enacting of
legislation by our Parliament. Yes, it is possible that Parliament
could over-ride that at the moment, but the real question—and
you described it in a sense as an open question just now—is
that the current convention, which is that the European Court
will not disapply legislation by voluntary advocation by an enactment
such as the Constitution, could be construed as a signal to the
European Court that it itself could disapply because the individual
Member State—and it could be the German Constitution for
example—has effectively been over-ridden by Article 1(5)
and I can see them taking that view, can you not?
Professor De Búrca: I cannot
because the provisions for the Constitution are very explicit
about the powers of the Court and they do not include the power
to set aside a national law. They have very explicit powers about
setting aside Union laws and reviewing Union laws. Their only
power is either to declare a state in violation of the Treaty
under the enforcement procedure brought by the Commission—which
does not affect national law—or to send a reference back
to a national court. Ultimately, it remains with the national
court and the national parliament to decide what you do. The European
Court of Justice can do nothing, and I do not think the Constitution
will change that at all, if a state decides it wants to expressly
countermand, violate or challenge a provision of EU law.
Professor Eeckhout: Could I add
to something to that. If you look at things from a very basic
perspective, the Constitutional Treaty, like any other Treaty,
is a form of international law which under international law is
binding on the states which have signed it. What we have achieved
in the context of European Union law is simply a better way of
ensuring that every Member State does comply with the international
obligations to which it has committed itself by virtue of the
fact that the European Court of Justice has confirmed this principle
and the national courts have accepted that that in general is
a principle which they will uphold. Again, the Constitution does
not in any way change that. It is a matter for the unwritten Constitution
of the United Kingdom and for the courts interpreting that Constitution
to decide precisely what effect and under what circumstances European
law does that.
Q115 Jim Dobbin: If I
could I ask Professor Eeckhout a question: the European Court
of Human Rights has developed a doctrine of the "margin of
appreciation" when dealing with moral and social issues even
where there is wide divergence between contracting states. In
your view, will there be room for a similar doctrine to be developed
by the European Court of Justice in considering the Charter or
is the Court likely to press for uniformity?
Professor Eeckhout: If we go by
the current case law on Human Rights and on the fundamental rights
developed by the European Court of Justice, they have fully agreed
with the "margin of appreciation" which the Strasbourg
Court recognises. For example, a fundamental right which has come
up quite frequently in an economic context is the right to property
which can be limited on public policy grounds and the European
Court fully accepts that. Also, there is a horizontal provision
which recognises—it is in the current numbering Article
II-II2 that there can be limitations to the exercise of the different
rights which are contained in the Charter, and I would think that
fits the "margin of appreciation" which the European
Court of Human Rights also recognises. Of course that does not
exclude, as we have been discussing before, that in the future
there may be circumstances where the European Court of Justice
might go a little further than the Strasbourg Court has gone and
might, in a particular context, leave less of a margin to a Member
State than you might find in the decision of the Court in Strasbourg,
but I think it is speculation. I think the Carpenter case was
a good example, but it is speculation to try to see what that
would be in another context. I worked for a number of years myself
in the European Court of Justice and clearly there are always
a few judges there who are not so keen on turning the Court of
Justice into a human rights' court and who would be very careful
to try to stick to the Strasbourg case law and authority. They
would not want to interfere too much in the way in which, within
a particular Member State, the balance between public policy and
fundamental rights is decided.
Q116 Mr Connarty: If I
could turn to a completely different area. The new Constitution
will basically collapse the three pillars which means we will
all become used to dealing with the EU's powers. It will mean
that Framework laws will fall under the same enforcement regime
as presently applies to all European Council Directives. Is there
a risk that this will lead to excessive rigidity and too much
power for the Commission in the transposition of measures in the
criminal justice field? There is always a concern of parliamentarians
about the power of the Commission.
Professor Eeckhout: I must confess,
as you may have seen in my memorandum, I have not discussed the
question at any length at all on the Criminal Justice Provisions
because I ran out of time in preparation for this meeting and
it is not an area with which I am very confident. Of course it
is clear that the third pillar is now fully integrated into the
first pillar, so you have a more significant role for the European
Commission in proposing legislation which is the sort of standard
role, as we see it for the Commission in other fields. I think
in order to be able to develop a policy in that area, as the Constitution
clearly envisages and as apparently the Member States can see
happening, one needs a body, such as the Commission, as a common
institution, and of course to have a parliament, as a supra-national
institution, to try to define some kind of common interest on
the basis of the different interests of the Member States and
to be more involved. That is really necessary if one wants to
advance policy in that area, which is a political choice.
Professor De Búrca: It
might be worth saying that that area of justice and home affairs
is a very controversial area, but I do not think the record of
last few years has been very salutary either, the kinds of provisions
which have been debated and adopted. It is hard to know whether
greater power to the Commission to propose legislation will change
the situation all that much. On the positive side, as Professor
Eeckhout, says, the collapsing of the pillars, as far as the previous
third pillar is concerned, would give a stronger role to both
the European Court of Justice and to the European Parliament which
slightly increases the democratic controls over that particular
area. Certainly I would not think that the previous system was
one which gave the citizen or many people great cause for confidence
in the kinds of proposals which were adopted. In fact it has been
a big growth area in recent years and it has suggested that an
area which is dominated by governments, especially in the post
9/11 era, has not given the citizen great comfort.
Q117 Mr Heathcoat-Amory:
Could I raise the Kompetenz-Kompetenz question? We have already
touched on Article 1(5)—the so-called primacy clause—it
seems to me that at present there is a stand-off, an agreement
that neither side in this will assert their full rights, that
is to say the national courts, constitutional courts, parliaments
or the ECJ, but Article 1(5), which gives a pretty unqualified
primacy not just to law from the Constitution, but to the Constitution
itself with all its obligations in it, does seem to me to tip
it pretty decisively in favour of Union primacy. How does this
square with, for instance, the position of the German Constitutional
Court after Maastricht which quite clearly and explicitly reserved
certain powers for itself? If I simply read this without knowledge
of that, and if this is voluntarily signed up to by all the Member
States, I cannot see how that German convention or doctrine can
survive. Again, is it not very dangerous to do something which
tips a delicate compromise very much in favour of exclusive centralised
Union powers?
Professor De Búrca: I agree
with you that it would be very dangerous if that were how it were
to be interpreted, but if I were part of the Court, I would be
looking at that together with the provision which says the previous
interpretations of the Court of Justice on EU law and jurisprudence
are to continue—I cannot remember the exact phrasing, it
is Article 438—and those shall remain mutatis mutandis
the source of interpretation of Union law. In a sense, this
provision on primacy is supposed to codify the existing principle
of supremacy. It is true that it says the constitution, but the
existing principle of supremacy is very much that EU law takes
primacy over national law within the proper area of action of
the EU. That leaves two questions open which I think does not
change the position for the German Constitution Court. The first
question is, is the EU acting properly within it competence? You
would have to check and see that the provisions have been followed
properly, that it is acting within the scope of competence that
is conferred and so on, and that it has not misinterpreted, for
example with the Tobacco Advertising Directive, and really extended
into health powers that did not exist, but that should remain
in the area of internal market. So that is the first thing, is
it a proper exercise of Union competence? Secondly, that does
not really determine anything about the kind of national law that
EU law has primacy over. It has primacy in so far as they are
operating in the same sphere but, there is a big discussion about
what they call diagonal conflicts, which is that a provision of
European law in a particular policy field does not take primacy
over every single national law, it depends on whether it is within
the scope of that law and this is known as the idea of pre-emption.
For example, the German Constitution Court can say: "No,
this is an area of the fundamental rights which are non-derogable
within the German Constitution and provisions on European competition
law do not prevail over them. The principle of supremacy or primacy
does not have that scope. This is an area of Kompetenz-Kompetenz
in which we can specify that" and I think that is still a
tenable position. I would be surprised if the German Constitutional
Court would be prepared to overlook its basic source of authority
which is from the German Constitution and that very clearly specifies
that certain parts of the Constitutional law are fundamental.
I do not think the German Constitutional Court is going to say
the fact that EU law, within its proper scope of competence, has
primacy means that it will have primacy over a fundamental part
of the German Constitution.
Q118 Mr Heathcoat-Amory:
If I may put to you that the Constitution contains within it obligations
for Member States, for instance, to behave unreservedly in a spirit
of loyalty and mutual solidarity and so on in the field of foreign
affairs and despite the fact that some clauses were taken away
from ECJ, those solidarity clauses appear to be justiciable. If
a Member State was to do something clearly in defiance of the
other Member States in this field, that clause would be invoked,
would it not, to undermine or indeed to render illegal any national
action. That is apparently what it says and surely a court should
be entitled to refer to this rather than its case law if, after
all this, they are the instructions from the Member States in
a signed Constitution.
Professor De Búrca: I think
the fact that it opens a choice for a national court means that
a national court is faced then with the question of whether its
duty stems from its own Constitution, which was adopted under
a very different sort of procedure, or under this new Constitution.
If it sees a direct conflict between something under the solidarity
clause—I find it hard to imagine all of this—and if
the Court of Justice declared something that a particular state
had done to violate the solidarity clause, a national court would
feel itself compelled to follow that ruling of ECJ and not something
fundamental in its own Constitution. From my point of view surely
that must be an open question, I do not think it is closed or
decided by this Constitution, though I can imagine a national
court which is Europe-orientated taking from Article 6 that it
could be that. But I can equally imagine the German Constitutional
Court continuing with exactly the reasoning in Rune.
Mr Heathcoat-Amory: The national court
might follow the national parliament, but the ECJ would declare
the country in breach of the Constitution and its obligations
and therefore, infraction procedures would follow, limitless fines
would have to be paid and so there would be a major crisis. Surely
the ECJ takes its instructions from the text, but I can find no
qualification. You have said it flows from case law. The British
Government tabled an amendment to try and make the text more closely
to follow case law and limit it to a specific legal conflict in
specific cases. That was not allowed, it was over-ridden and the
text stands in this very bald and unqualified manner in which
we see it.
Q119 Mr Cash: Following
on from what Mr Heathcoat-Amory is saying, Professor Denza said
in oral evidence—you may or may not have read it—that
if the Constitution is adopted, the ECJ will "inevitably
tend not only to regard itself as a constitutional court",
which I say is in the Treaty anyway, "but to be generally
regarded as a constitutional court and I think there will be a
greater level of deference and perhaps greater reluctance to challenge
on issues of primacy". The reason that we, as a scrutiny
committee, are so engaged in this subject is for a very simple
reason, it goes to the question of who rules, how do you rule
and is it the voters or is it the Courts? It is a supremely important
question and your answers, if I may say so, so far have rather
left the door open because I do not think you quite know what
the answer is. You rather inclined to the view that I expressed,
and which David Heathcoat-Amory expressed, that it would be sensible
for the European Court to have regard to what it was that the
national legislator ultimately decided. I think that is still
very much an open question and the more we go round this mulberry
bush the more confusing it is to the general public. I must say
it would be extremely helpful if we could have a more clear and
pristine view from such great authorities as the two of you.
Professor De Búrca: I am
not sure I know what you want a clear and pristine view of.
Mr Cash: I want to know "Who rules
okay"? Is it the voter or the European Court?
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