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Home > Vol 21, No 1 (2015) > Fisahn

Hierarchy or network - On the relationship of the national to the European legal system

Andreas Fisahn [1]

Cite as Fisahn, A., "Hierarchy or network - On the relationship of the national to the European legal system", (2015) 21(1) European Journal of Current Legal Issues.

Abstract

European primary law doesn't provide an explicit precedence rule, but the draft of a European constitution, which was rejected by the referendum votes in France and Ireland, contains the priority rule. The European Constitution of 2004, which never came into force, provided an article on the primacy of European law. The Treaty of Lisbon, which does not differ essentially from the proposed European Constitution, does not contain a precedence rule. But different declarations are attached to the treaty. And declaration No. 17 to the TFEU declares the primacy of European law. In this paper I critically examine this hierarchical model and suggest that a network model is more appropriate.

1. Stuck between Scylla and Charybdis

In the introductory lectures that one has at the start of one's legal studies there is regularly a question that all students pose to which - at least from a German perspective - there is no satisfactory or clear answer. "Who actually has the last say, the BVerfG (the Federal Constitutional Court) or the ECJ (European Court of Justice)?" [2] Here we are not dealing with an academic question as was made clear from the dispute over data retention. On March 15^th, 2006, the European legislator issued a directive [3] that enjoined the member states to save and store telecommunication data of the respective companies for a general period of six months. The Federal Republic of Germany implemented this directive by passing certain national laws that were then submitted to the BVerfG in order to examine if these were constitutional or not. On March 2^nd, 2010, the BVerfG decided that a six month, unfounded precautionary saving and storing of telecommunication data by private providers did not conform with Article 10 GG (the Basic Constitutional Law) and stated that the respective laws are not valid under German law. At the same time, though, the court stated that a submission to the ECJ was not necessary as the directive allowed lawmakers a wide discretionary scope that allows for a constitutionally conforming implementation of the directive. [4] Still, German lawmakers were confused and felt that they had to navigate between Scylla and Charybdis (in layman's terms: between the devil and the dark blue sea); i.e. between the European requirement to implement the directive and the duty to observe and heed the BVerfG decision. Salvation came on April 8^th, 2014, when the ECJ also declared the directive to be invalid as it could not guarantee the right to privacy and was insufficient regarding the protection of personal data.

The ECJ said: "In that regard, it should be noted that the protection of personal data resulting from the explicit obligation laid down in Article 8(1) of the Charter is especially important for the right to respect for private life enshrined in Article 7 of the Charter. Consequently, the EU legislation in question must lay down clear and precise rules governing the scope and application of the measure in question and imposing minimum safeguards so that the persons whose data have been retained have sufficient guarantees to effectively protect their personal data against the risk of abuse and against any unlawful access and use of that data." [5]

The dispute over who has the last say was - coincidentally (?) - settled due to unanimous agreement but in no way decided.

2. Primacy of European Law

European primary law doesn't provide an explicit precedence rule. But the draft of a European constitution, which was rejected by the referendum votes in France and Ireland, contains the priority rule. The European Constitution of 2004, which never came into force, provided an article on the primacy of European law. It says: "Article I-6 - Union law: The constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States."

The Treaty of Lisbon, which does not differ essentially from the proposed European Constitution, does not contain a precedence rule. But different declarations are attached to the treaty. And declaration No. 17 to the TFEU declares the primacy of European law. It says: "17. Declaration concerning primacy: The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law."

The interpretation of these rules by the European Commission is very strong. On an official website of the European Union we can find this form of interpretation of the precedence rule:

"The precedence of European law over national laws is absolute. Therefore, it applies to all European acts with a binding force, whether emanating from primary or secondary legislation. In addition, all national acts are subject to this principle, irrespective of their nature: acts, regulations, decisions, ordinances, circulars, etc), irrespective of whether they are issued by the executive or legislative powers of a Member State. The judiciary is also subject to the precedence principle. Member State case-law should also respect EU case-law. The Court of Justice has ruled that national constitutions should also be subject to the precedence principle. It is therefore a matter for national judges not to apply the provisions of a constitution which contradict European law." [6]

This means clearly, that European Law is superior not only to ordinary, national law, but also to the national constitutions and not only the European primary law, but also the secondary law has priority over the national constitution.

The reason for this interpretation was set by the jurisdiction of the ECJ. Famous is the case was Costa v. ENEL, in which the ECJ pointed out in words which have become classic:

"It follows from all these observations that the law stemming from the Treaty, an independent source of law could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question. The transfer by the states from their domestic legal system to the Community legal system of rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail." [7]

A few years later the Court made clear that the supremacy of European law does not only affect the ordinary, national law, but also the national constitution. In the case Internationale Handelsgesellschaft v. Einfuhr the court declared:

"Recourse to the legal rules or concepts of national law in order to judge the validity of measures adopted by the institutions of the Community would have an adverse effect on the uniformity and efficacy of Community law. The validity of such measures can only be judged in the light of Community law the validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that state or the principles of a national constitutional structure." [8]

The Simmenthal II case gave the ECJ the opportunity to make its point of view clear once more. The court ruled that European law has binding effects on all national courts. In the decision it pointed out:

"Furthermore, in accordance with the principle of the precedence of Community law, the relationship between provisions of the Treaty and directly applicable measures of the institutions on the one hand and the national law of the Member States on the other is such that those provisions and measures not only by their entry into force render automatically inapplicable any conflicting provision of current national law but - in so far as they are an integral part of, and take precedence in, the legal order applicable in the territory of each of the Member States - also preclude the valid adoption of new national legislative measures to the extent to which they would be incompatible with Community provisions. Indeed any recognition that national legislative measures which encroach upon the field within which the Community exercises its legislative power or which are otherwise incompatible with the provisions of Community law had any legal effect would amount to a corresponding denial of the effectiveness of obligations undertaken unconditionally and irrevocably by Member States pursuant to the Treaty and would thus imperil the very foundations of the Community. The first question should therefore be answered to the effect that a national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provision by legislative or other constitutional means." [9]

This statement is often interpreted as an affirmation of the Handelsgesellschaft case with respect to the relation of European and national constitutional law. [10] This interpretation seems to be too strong as the court did not mention constitutional law, but only the relationship between European and national law. So maybe this was a step back after the Handelsgesellschaft case.

3. Supervisory powers of the BVerfG

The BVerfG has repeatedly declared itself as to the question of competing legal systems and cooperating with the ECJ. Already in 1974 the court decided that German courts are allowed to submit legal directives of the European Community to the BVerfG within the constitutional review proceedings process in order to examine if these are in line with the German constitution, especially when these deal with and affect basic legal rights. However, the court submitting this must - and here one can clearly see the cooperation relationship at work - ask the ECJ to make a decision on the matter as it has the right to first interpret community law. This possibility of basic legal examination has to be in place "as long as" the integration process is not far enough developed that the European basic rights and the protection thereof has not reached the level of the German human rights. The decision was therefore called (abbreviated to) "Solange I" ("As long as" I). [11] Practically both courts try to avoid a confrontation, which has pretty much worked so far. [12]

One expects it - following on "Solange I" there must be a "Solange II". In 1986 the BVerfG turned the "Solange" expectations around to the benefit of the ECJ, but did not shirk its own responsibility fully. The court now said that the European Community had made clear inroads within the area of protecting basic rights and that its organs clearly acknowledge human rights. As long as, so the BVerfG, this standard remains guaranteed at a European level, the court would not exercise its judicial competencies regarding European-related acts of law that are applied within Germany anymore. Respective lawsuits - such as the submission by a lower court within a judicial review of constitutionality - are therefore even defined as being invalid. [13] By using the wording "the BVerfG will not decide as long as …", it actually hasn't failed to fulfil its duties. In cases where the basic legal standards within Europe are infringed upon, the court has reserved the right of being able to once again intervene. It is clear, however, that a definition of clear lines of responsibility has not been undertaken.

With the Treaty of Maastricht the BVerfG was not presented with individual acts of European Community law but rather, firstly, the European primary laws were attacked as being unconstitutional. The plaintiff filed an individual constitutional complaint and claimed that its rights were infringed upon as the sovereignty of the Federal Republic of Germany was undermined and thereby democratic decision-making processes were allowed to run dry. The BVerfG first accepted the admissibility of the constitutional complaint in its 1993 judgment and argued as follows: The German Constitutional Court must ensure that an effective safeguarding of the basic rights for German citizens must also be guaranteed with regard to the jurisdiction of the Community as the holders of the fundamental rights could also be infringed upon by this jurisdiction. Still, the BVerfG recognised the wide-ranging territorial competence of the ECJ and thereby saw itself as being in a "cooperative relationship" with the ECJ. [14] At the same time, the court did establish a division and clear line of competence that would continue to pursue it.

The member states are sovereign, the sovereign rights or competencies are transferred to the European institutions. Their jurisdiction therefore are only limited to the boundaries that they were assigned by the member states. If the European Community, including the ECJ, transgresses the contractually agreed to competence limits, then constitutional law in Germany is also being infringed upon. The BVerfG therefore claims for itself with regard to the Maastricht decision that it can use the so-called ultra vires control mechanism; i.e. being able to examine if the acts of law of the European institution are keeping to the limits of the sovereign rights that they have been assigned. Acts of law that transgress these can therefore not be applied within the Federal Republic. [15]

In the 2009 Lisbon decision by the BVerfG the arguments are further extended and differentiated. The fundamental structural principles of the German Constitution that are declared as being unchangeable in Art. 79 Abs. 3 GG, namely democracy, a constitutional state, a social and federal state as well as the principle of human dignity, are all amalgamated within the Lisbon decision in order to set down the inviolable substance and essence of the constitutional identity. Apart from the ultra vires control mechanism and the basic rights control system, the BVerfG now also announces the right and power to firstly check the subsidiarity of European acts of law where no European legal protection can be attained. However, its main claim is that it can check if the constitutional identity of the German constitution (the Basic Law) is being undermined by the transference of competencies and authority. The BVerfG does not only want to check if the transferred sovereign rights were transgressed, but also if the transfer is actually valid without undermining the identity of the German constitution. For the European legal significance of the national constitutional identities Art. 4 II EUV provides a normative line as it sets down that just this identity has to be respected. [16] Admittedly, in the end it is just those political areas that are actually promoting identity for which the Union was not given any competencies within the Lisbon Treaty. The control density was however increased dramatically with this decision and the BVerfG expressly reserves the right to declare European Union law as being inapplicable within the Federal Republic. [17]

Within the Lisbon judgment the court also states clearly its position to the above quoted Declaration No. 17. This should not be misunderstood as allowing Union law absolute precedence over German constitutional law. Of course European law must be implemented and applied, having precedence over basic German laws, but not over German constitutional laws. Union law cannot supersede constitutional law. Here the principle of the transference of sovereign rights through the principle of the limited conferment of powers is valid, whose application has to be checked with the constitutional identity. [18] The cooperative relationship became in Lisbon more of a relationship of the supremacy of the constitutional courts, as the member states are the masters of the treaties. Their fundamental examination is therefore within the realm of the national constitutional courts whereas the ECJ at the same time has to make do with examining if European law is being correctly implemented and applied. This may sound hard but it does reflect the spirit of the decision.

The BVerfG was forced to backpedal in the so-called Honeywell decision [19] of 6.6.2010 [20]; that means, underscoring the importance of the ECJ and to cut its own role down a notch. The BVerfG still claims that it has the right to the ultra vires control mechanism. It must however accept the decisions made by the ECJ, which have to be obtained before an act of law can be declared as being inapplicable, [21] as the binding interpretation of European law and must base its own decision on this. In addition, an infringement of competences can only lead to the inapplicability of Union law if it is properly qualified; that means it has to be very clear and that it makes a big difference with regard to competence assignment. [22] Consequently, on 14.1.2014 the BVerfG suspended the hearing on the issue of the OMT (Outright Monetary Transactions) decisions of the ECB were lawful; that means the decision by the ECB to buy up government bonds of debtor nations in certain cases. With this decision, the BVerfG has submitted a variety of questions on the interpretation of European primary law to the ECJ that have to be ruled on. Through this it has clearly set limits for its competencies. The ultra vires question that is now being posed is: If the ECB should have superseded its competencies, then the discussion will take place under the premise of how the ECJ has interpreted Union law. Here the BVerfG has limited its competencies. [23]

4. Reasons for the one or the other primacy

If one looks at the reasons given by the ECJ and the BVerfG for their respective positions, then what does catch one's attention is that the ECJ operates more with the argument of power than with the power of arguments. It basically says that it is necessary to create a unified and effective legal system. Already the question as to why, i.e. why something is necessary, is not asked by the ECJ of itself. It basically demands that one follows its decisions and adheres to its competencies without further ado. Both courts are at all times political bodies [24] that define and limit their claims to power and competence with and against one another. Within the relevant literature there is also little more than the claim of validity of European law that it throws into the ring. It has to be adhered to by all national institutions in order to guarantee mutual trust and "steadfast respect" through the respective other parties. [25]

The BVerfG does not just argue in a more differentiated matter when it comes to describing the relationship of the two courts; in addition, in the explanatory statement important arguments are presented for the control rights and powers of the constitutional court. As the EU is not a state, so the argument by the court, it does not have any sovereign rights in the form of a competence competence at its disposal. Rather, the EU sovereign rights are transferred in accordance with the principle of the limited conferral of powers by the member states. The member states therefore remain "masters of the treaties" - in any case as long as the EU does not constitute itself as a federal state. [26]

If the member states are seen as being the masters of the treaties then with regard to European law we are dealing with a conferred or derived set of laws and competencies. The EU has an autonomous status that the BVerfG compares with the autonomy of self-governing bodies (SROs: self-regulatory organisations) that also derive their competencies and authority from national sovereignty rights. What is different to this is that the member states can claim sovereignty for themselves which the court defines as an independence from foreign will. [27] Out of this relationship of autonomy and sovereignty, of original and derived sovereign rights there now correctly follows the consequence that the derived legal system cannot claim any competencies that, on the one hand, were not assigned to it and that, on the other hand, the democratically legitimated authority - the national state - cannot give up its competencies as a whole or exist as an empty shell in which democracy only has the appearance of being exercised.

5. Hierarchy or network

The discussion and the different positions on the primacy of European law over the national acts of law are based in many cases - at least unconsciously - on a model that is called the "hierarchy of law" in Germany. The person that surely paved the way for this concept was the Austrian legal theorist Hans Kelsen who asked why and which law can claim validity within a society. His answer became famous: One has to think of a basic legal norm on whose basis one has to decide if a norm belongs to the legal system or not. A basic norm for Kelsen is an altogether and generally speaking entirely operational, effective constitution. [28]

The English legal philosopher H.L.A. Hart made this basic norm very clear, thereby however - in a very British, sensationalistic style - banalising the whole matter in that he formulated the following: "What the Queen in parliament enacts, is law." [29] Through such a basic norm one at the same time has marked the top of the hierarchy. What is valid as law is only that which conforms to this basic norm. Normally then the legal hierarchy is - in Germany - portrayed as follows: At the top there is the constitution, under it one can find federal laws passed by parliament and the pyramid basically ends with the local municipal by-laws and statutes which are not allowed to infringe upon any of the superordinated legal principles. Within the Federal Republic of Germany the problem that crops up is that of precedence when regarding the relationship between federal and state law. The German constitution (the Basic Law), however, has a clear directive available here with which the hierarchy is ensured. Art. 31 GG formulates the precedence of federal law over that of state law. In contrast, the picture of a norm pyramid seems to be quite unsuitable of portraying the reality when it comes to the relationship between the EU and its member states. [30]

If one accepts that the EU is a non-state, a confederation of states but not a federal state, then one cannot just blindly transfer the perceptions of a federal state hierarchy onto the relationship of the EU and its member states. The arguments of the BVerfG have to be taken into account regarding the relationship of the member states with each other and in relation to the Union. According to these, the EU cannot be considered as being sovereign as it derives its competencies and powers from the member states. Vice versa, the classic definition of the sovereignty of a member state in a confederation of nations such as the EU loses its substance as, of course, the state is bound within a complex legal network and legal obligations as to its will and in no way sovereign. The BVerfG emphasises that the EU does not have any competence competence at its disposal and is therefore a non-state, even though autonomous, but not sovereign. But also the EU member states have given up their competence competence in favour of the EU. They obviously cannot take back individual competences using their own sovereign absolute power without thereby attacking the foundations of the EU. Their only recourse is leaving the Union or a mutual amendment to the treaties. An absolute hierarchy with precedence for European law over national law - here one has to follow the arguments of the BVerfG - cannot be construed. Vice versa a hierarchy with the national constitutions at the top is just as insensible as the national constitutions basically have to be of equal rank, which would exclude a pyramid of norms.

Therefore one has to perhaps say goodbye to the idea of a hierarchy between European law and the laws of the member states. Pernice has made a proposal going in this direction whereby one would assume not a hierarchy but rather a "primacia", a primacy of application, which accepts the different areas of application of various fundamental and valid norms. [31] If one thinks this through, though, then one has to speak of a network [32] rather than a hierarchy, a network of rights and legal obligations. In a network there is no up or down but rather equal knots and connections, i.e. equal circles of law, that are connected to each other and also depend on one another. They are, however, autonomous and clearly definable vis-à-vis the other circles of law. Within a network there is no hierarchy and, even more, no unity created by hierarchy. It is much more a unity made up of connections and the connection of different parts. In the respective autonomous circles of law what is valid first are the competence delimiters, the jurisdiction and the ranking of the respective circles of law.

It gets interesting there where overlaps or conflicts occur. Firstly the cooperative relationship should be pointed out that was emphasised by the BVerfG in its Maastricht judgment. The courts endeavour to reach a coherence regarding their dispensation of justice through a "reciprocal coordination and homogenisation" [33] and this relatively successfully. Still, conflicts can't be excluded even if efforts are being made to avoid them. If one gives up on the thought of "unity through hierarchy" and one accepts the thought of subsidiarity, then it has to be accepted within the network that differences do exist, the knots appear differently, differ in stability and have different forms. If we take the example of the retention of data and assume for the absent conflict: Why would it actually not be feasible for a legal system that the retention of data takes place there where the national constitutional court does not see any problems in its deliberations and not there where the national court gives precedence to data privacy protection. Of course the first thing that will happen is that the accusation of cherry picking is voiced.

Here one can become polemical in a Prussian manner by focusing on uniformity. What is however even more important is that the uniformity of the legal system is at the very latest a myth (the Old English mare) when looking at the application of the laws in the member states; possibly even a German nightmare. The concentration and effectiveness of the implementation of European law varies greatly within the member states. There are various proposals of theoretically recording the pluralism of the legal systems and of accepting this as being reality. [34] These proposals still have to be refined and unified, but they are pointing in the right direction regarding the discussion, going beyond the hierarchy model.