House of Lords - European Union

Select Committee on European Union Memoranda

Memorandum by Professor Anthony Arnull, University of Birmingham

SUMMARY

— It is unlikely that any change in the role of the Court of Justice would result from the difference in wording between Article 220 EC and Article I-28(1).

— The Court of Justice will have exclusive jurisdiction to rule on (a) the scope of the competences enjoyed by the Union under the Constitution; and (b) challenges to the validity of Union acts, including challenges based on alleged infringements of the principles of subsidiarity and proportionality.

— The draft Constitution would extend the doctrine of primacy to matters which currently fall under the second and third pillars of the Union.

— The Constitution and laws of the Union would take precedence over inconsistent rules contained in the constitution of a Member State.

— The Court of Justice would not rule on the validity of national laws.

— The draft Constitution would give the Court some jurisdiction over the CFSP. That jurisdiction should be enlarged.

— Article III-283 ought ideally to be deleted. However, its practical significance may be limited.

— Article III-270(4) might be incompatible with Article II-47 of the draft Constitution.

— The European Council should be added to the list in Article III-270(1) of institutions whose acts may be reviewed by the Court.

1. I have been asked to comment on the role envisaged for the European Court of Justice under the draft Treaty establishing a Constitution for Europe, adopted by the Convention on the Future of Europe in July 2003. [4]The Sub-Committee has identified six questions of particular concern to it. I shall deal with each of them in turn.

WOULD THE ROLE OF THE ECJ CHANGE UNDER THE NEW TREATY?

2. It is unlikely that any change in the role of the Court of Justice[5] would result from the difference in wording between Article 220 EC and Article I-28(1). The latter provision is in fact closer to the former than a previous draft[6] and now refers to "the law" in general terms. It is true that the phraseology is slightly different from that of Article 220 EC, but it seems unlikely that the difference has any significance. It is noteworthy that the French texts of the two articles are virtually identical. Thus, Article 220 refers to "le respect du droit dans 1'interprétation et 1'application du présent traité" while Article I-28(1) speaks of "le respect du droit dans' interprétation et 1'application de la Constitution.[7] The English version of Article I-28(1) looks like a direct translation of the French version of that provision by someone who was not familiar with the language of Article 220 EC. For the avoidance of doubt, however, it would be preferable if Article I-28(1) were amended at the IGC so that it requires the Court of Justice to "ensure that in the interpretation and application of the Constitution the law is observed."

3. In general terms, the role of the Court of Justice under the Constitution would be much the same as its role under the present Treaties. Its main functions would still be to ensure that the institutions act within the limits of their powers and that the Member States comply with their obligations and to offer guidance to national courts on the interpretation and application of the Constitution. The substantive content of the cases it is called upon to decide might, however, be affected by the incorporation of the Charter of Fundamental Rights in Part II of the draft Constitution. This seems likely to result in an increase in the number of challenges to the activities of the Union on fundamental rights grounds. If so, the Court may find itself addressing questions of fundamental rights more frequently, a position in which many national courts have found themselves.

DIVISION OF COMPETENCES

4. As a matter of Union law, it is clear that the Court of Justice will have exclusive jurisdiction to rule on the constitutional division of competences between the Union and its Member States. This is a question of the interpretation of the relevant provisions of the Constitution, namely Title III of Part I and the legal bases contained in Part III, on which the Court of Justice will be the ultimate arbiter, as it is at present in relation to the interpretation of the Union Treaties. There is no other court which could determine these questions on a uniform basis for the Union as a whole. Similarly, the Court will retain exclusive jurisdiction to rule on challenges to the validity of Union acts, including challenges based on alleged infringements by the Union of the principles of subsidiarity and proportionality. In the famous Foto-Frost case, which was referred by a national court under what was then Article 177 of the EEC Treaty, the Court underlined the particular importance of uniform application where the validity of a Community act is in issue: "Divergences between courts in the Member States as to the validity of Community acts would be liable to place in jeopardy the very unity of the Community legal order and detract from the fundamental requirement of legal certainty.[8] In a Union of 25 or more Member States, the need for a single court to determine questions such as these will be even more pressing.

5. The Community/Union's Kompetenz-Kompetenz, or capacity to determine the limits of the powers conferred on it, contains the potential for conflict with national courts. In order to ensure that the Community/Union's powers, as determined by the Court of Justice, do not extend beyond the scope of the act by which a Member State acceded to the Community/Union, the national courts of that State may assert a power to review Community/Union acts to verify that they remain within the limits of that act. The leading example of that approach is the Bundesverfassungsgericht's famous Maastricht decision of 12 October 1993. [9]Technically, this is a matter of national law. What is the scope of the national measure assenting to the transfer of powers from the State concerned to the Community/Union? Does that measure comply with the Constitution of that State? These are questions which only the competent national courts can answer. As a matter of Community/Union law, however, Member States are required to take the steps necessary to comply with the obligations of membership. If a Community/Union act which had not been quashed by the Court of Justice were found by a national court not to be applicable within its jurisdiction because it fell outside the powers transferred to the Community/Union by the State in question, that State would therefore be required to rectify the position. Should it fail to do so, the remedies for which the Treaty/Constitution provides would in theory be available.

6. Politically, such a conflict could easily escalate into a crisis. That possibility seems to have produced a spirit of compromise. Since the Maastricht decision of the Bundesverfassungsgericht, there is evidence of a stricter approach by the Court of Justice to the scope of the Community's powers. [10]For its part, the Bundesverfassungsgericht seems to have retreated from the Maastricht decision and adopted a less confrontational posture. This underlying tension between the Court of Justice and the supreme courts of the Member States is not unhealthy and shows the extent to which the Court of Justice relies on their cooperation. The position would not change under the proposed Constitution.

7. The Court of Justice does not at present rule on the validity of national laws and again the position is unlikely to change under the proposed Constitution. In actions by the Commission against Member States for infringing their obligations (Article 226 EC/Article III-265), the Court will, if the Commission is successful, merely declare that the State concerned is in breach. The State concerned will then be obliged to take the steps necessary to comply with the Court's judgment (Article 228(1) EC/Article III-267(1)). The preliminary rulings procedure (Article 234 EC/Article III-274) does not give the Court of Justice jurisdiction to rule on questions of national law, which remain the preserve of the referring court. That court is, of course, bound by the ruling of the Court of Justice on questions of Community/Union law.

PRIMACY

8. Article I-10(1) of the draft Constitution provides: "The Constitution, and law adopted by the Union's Institutions in exercising competences conferred on it, shall have primacy over the law of the Member States." That provision reflects the case law of the Court of Justice on primacy beginning with Costa v ENEL. [11]The effect of that case law is that, where there is a conflict in a national court between a national rule and a European rule, precedence must be accorded to the latter. The status and date of the conflicting national rule is immaterial. The relevance of the case law on primacy to the interpretation of Article I-10(1) is confirmed by Article IV-3, according to which "The case-law of the Court of Justice of the European Communities shall be maintained as a source of interpretation of Union law." The Constitution and laws of the Union would therefore take precedence over inconsistent rules contained in the constitution of a Member State.

9. There are, however, at least two problems with Article I-10(1). The first is that the existing doctrine of primacy can only apply where the European rule is sufficiently clear to be suitable for application by a court, a quality known as direct effect. The draft Constitution may be regarded as defective in not making this clear. More importantly, the existing doctrine of primacy does not extend to Titles V and VI of the Treaty on European Union (TEU), the so-called second and third pillars, which deal respectively with the Common Foreign and Security Policy (CFSP) and with Police and Judicial Cooperation in Criminal Matters. Because the draft Constitution would abolish the Union's pillar structure, the effect of Article 1-10(1) would be to make the doctrine of primacy applicable across the entire range of the Union's activities. However, while matters currently falling under Title VI of the TEU would for the most part be brought within the scope of the classic powers of the Court of Justice, [12]most of the provisions on the CFSP would remain outside the jurisdiction of the Court. [13]In nearly all cases concerning the CFSP, it is therefore unclear whether a national court would be able to ask the Court of Justice for guidance on the effect of Article I-10(1). If national courts are left to their own devices, there will inevitably be divergence between Member States. The solution to this problem is either: (a) to delete the provision excluding the CFSP from the jurisdiction of the Court, or (b) to exclude the CFSP from Article I-10(1). In a Union which will include the rule of law among the values on which it is based, [14]the former would seem preferable. Regrettably, the latter is likely to prove more politically acceptable.

THE COMMON FOREIGN AND SECURITY POLICY

10. Article III-282 excludes from the jurisdiction of the Court of Justice most of the provisions of the draft Constitution on the CFSP. Only two, Articles I-15 and III-209, would be subject to review by the Court. The Court would in addition have jurisdiction to review the legality of restrictive measures against natural or legal persons adopted pursuant to the CFSP under Article III-224(2).

11. The power of the Court of Justice to review compliance by Member States with the second paragraph in particular of Article I-15 is potentially significant. It could lead the Court to rule on whether action by a Member State complies with an act adopted by the Union in this area or is contrary to the Union's interests or likely to impair its effectiveness. The Court might well consider at least some of those issues justiciable. If the Court were to take too broad a view of its jurisdiction to apply Article I-15, however, the effect might be to undermine Article III-282 so far as the obligations of Member States are concerned. If, on the other hand, it were to take a narrow view, the effect might be to undermine the apparently deliberate exclusion of Article I-15 from Article III-282.

12. Article III-209 would prevent the provisions on the CFSP from being used to interfere with other competences enjoyed by the Union under the draft Constitution and vice versa. [15]Its purpose is to stop a power or a process applicable in one field from being used to take steps which ought properly to be regarded as falling within a different field. It is an application of the principle of conferral, according to which "the Union shall act within the limits of the competences conferred upon it by the Member States in the Constitution to attain the objectives set out in the Constitution." [16]The fundamental nature of that principle explains the grant to the Court of jurisdiction to apply Article III-209.

13. Article III-282 looks like a rather unhappy compromise between those who wished to exclude the Court from the CFSP entirely and those who wished to see the CFSP brought fully within the Court's jurisdiction. It would be better if the Court were in a position to scrutinise the application of all the provisions of the draft Constitution on the CFSP. This would mean giving it jurisdiction to ensure that the Member States, the Union institutions (including the European Council) and the Union Minister for Foreign Affairs respect the Constitution and that natural and legal persons have a remedy where there is a breach of the Constitution in this field, particularly in cases of alleged violations of fundamental rights.

14. It may be noted that the draft Constitution appears to deprive natural and legal persons of the right they currently enjoy to challenge restrictive measures interrupting or reducing economic and financial relations with third countries adopted pursuant to the CFSP. Such measures are the subject of Article III-224(1). That provision corresponds to Articles 60 and 301 EC, first pillar provisions which are subject to the jurisdiction of the Court. Although the second paragraph of Article III-282 does give the Court jurisdiction to review the legality of restrictive measures adopted under Article III-224, it refers only to measures of that type adopted against natural or legal persons, which are the subject of Article III-224(2). It is evident that each type of restrictive measure may have adverse consequences for natural and legal persons, who ought therefore to have the right to challenge both of them. The second paragraph of Article III-282 should therefore be deleted. This would have the effect of giving the Court jurisdiction over all restrictive measures adopted under Article III-224.

15. It should be borne in mind that foreign policy matters are not excluded from review by the Strasbourg Court. This means that, in the absence of special arrangements, Union acts concerning the CFSP would, after Union accession to the ECHR, [17]be open to challenge there by an applicant within the Union's jurisdiction. Indeed, there is a risk following Matthews v United Kingdom[18] that the Strasbourg Court might review such acts even before accession. Moreover, such an applicant may already challenge before the Strasbourg Court steps taken by the Member States under the CFSP. If the provisions of the draft Constitution were endorsed, the Strasbourg Court would have to exercise its jurisdiction in the absence of prior review in Luxembourg, which might lead to important features of the Union system being overlooked or misunderstood. Enlarging the jurisdiction of the Court of Justice over the CFSP would be unlikely to lead it to take an unduly interventionist approach. As Advocate General Jacobs explained to the Committee on a previous occasion, "in matters of policy the [Community] Courts exercise a limited jurisdiction, the standard of review allowing the political institutions the appropriate margin." [19]

CRIMINAL LAW AND PROCEDURE

16. Article 35(5) TEU is essentially replicated in Article III-283, which purports to limit the jurisdiction of the Court of Justice over the so-called area of freedom, security and justice. It seems designed to weaken judicial scrutiny and poses a potential threat to the uniform application of Union law and ought ideally to be deleted. A peculiarity of both provisions, however, is that they seem to be concerned with the validity or proportionality of national measures. In the case of Article III-283, this is underlined by the final clause (which does not appear in Article 35(5) TEU). Since the Court of Justice does not directly review national measures in any event, the practical significance of Article III-283 may be limited.

ANNULMENT PROCEEDINGS

17. Article III-270(4) would alter the standing rules in Article 230 EC inter alia by allowing a natural or legal person to bring annulment proceedings "against a regulatory act which is of direct concern to him or her and does not entail implementing measures." The term "regulatory act" means any act other than a legislative act. [20]Legislative acts would only be open to challenge by natural and legal persons where they could establish direct and individual concern, a test taken from Article 230 EC.

18. Because of the way that test has been applied by the Court, it would therefore remain very hard for natural and legal persons to seek the annulment of legislative (as opposed to regulatory) acts which are of direct concern to them without the need for implementation. This is likely to lead to continuing pressure for relaxation of the test for individual concern, particularly in cases where a violation of fundamental rights is alleged. It may also make it difficult for a clear distinction to be maintained between legislative and regulatory acts. The updated "explanations" of the Charter of Fundamental Rights implicitly acknowledge that Article III-270(4) might be regarded as incompatible with Article II-47 of the Charter (right to an effective remedy and to a fair trial) and seek to prevent that conclusion from being drawn. The explanations state that the first paragraph of Article II-47 is not intended to change "the rules relating to admissibility for direct actions before the Court of Justice of the European Union." [21]If the present standing rules are changed in the manner suggested, it will be interesting to see how much weight the Court of Justice accords that statement, given that it does not "as such have the status of law".[22]

19. A separate but related point is that the European Council should be added to the list in Article III-270(1) of institutions whose acts may be reviewed by the Court. The draft Constitution elevates the European Council to the status of an institution[23] and confers on it formal decision-making powers. The exercise of those powers needs to be subject to judicial control if respect for the rule of law is to be ensured.

2 October 2003