National Courts Cannot Override CJEU Judgments
A Joint Statement in Defense of the EU Legal Order
The European Union is a community based on the rule of law. The EU legal order is the backbone that holds the EU together, and the German Federal Constitutional Court’s ruling in Weiss poses a profound threat to that legal order. This threat goes far beyond the potential consequences of the Weiss ruling for European monetary policy. We write this statement to express our shared view that the German Court’s (Bundesverfassungsgericht – BVerfG) assertion that it can declare that a CJEU judgment “has no binding force in Germany” is untenable and must be forcefully rejected. We also write to challenge those versions of scholarship on constitutional pluralism and constitutional identity that would defend the authority of the BVerfG or any national court to make such a ruling and that helped (even if unintentionally) encourage it to do so.
In recent decades, scholars developed the concept of constitutional pluralism as a way to resolve the impasse between the Court of Justice of the European Union (CJEU) and national constitutional courts, such as the BVerfG, over questions of legal supremacy (Kompetenz-Kompetenz). The central question in that long standing dispute concerns which court should have the final say in resolving conflicts between EU law and national constitutional law. Scholars of constitutional pluralism maintain that there is no need for a definitive answer as to which court would have the final say, as tensions over rival claims of superiority could be resolved through judicial dialogue and norms of tolerance and accommodation.
The BVerfG ruling in Weiss – and the immediate reaction to that ruling by the autocratic regimes in Hungary and Poland – demonstrates the inherent limits of this optimistic vision. Let’s face it: constitutionalism pluralism can’t provide a practical, ultimate answer to the question at the heart of the Kompetenz-Kompetenz conundrum, as sometimes direct conflicts over who has the final say on disputes over conflicts between EU and national law are unavoidable.
Those signing this statement agree with constitutional pluralists that judicial dialogue is valuable – indeed it is integral to the functioning of the EU legal order. The Court of Justice itself has recognised that national courts and tribunals, in collaboration with the Court of Justice, fulfil a duty entrusted to them jointly of ensuring that in the interpretation and application of the Treaties the law is observed. We also agree that the CJEU and national constitutional courts should be guided by norms of mutual tolerance, forbearance, and accommodation wherever possible, striving to reconcile tensions between their legal orders on the basis of norms of comity.
In short, we are all sympathetic to constitutional pluralists’ desire to accommodate the legitimate concerns that some national constitutional courts may have about conflicts between EU law and inviolable aspects of their domestic constitutional orders. In fact, such concerns are enshrined in the founding treaties of the EU (esp. Articles 4 and 6, TEU). While there have been proposals to create new bodies that might arbitrate constitutional conflicts between the CJEU and national courts in the future, the law as it stands today is clear: no national court can overrule a CJEU judgment. Though we do not agree on all aspects of the constitutional pluralism debate, on one point we are unambiguously and emphatically united: it is unacceptable for a national court to declare that a CJEU ruling is not binding in its jurisdiction.
As the Court of Justice has explained repeatedly since Costa, if national courts could override the Court of Justice, EU law would not be applied equally or effectively across all Member States and the entire legal basis of the EU would be called into question. Indeed, as the CJEU emphasized in its recent press release, the supremacy of EU law “is the only way of ensuring the equality of Member States in the Union they created.” States have delegated part of their sovereignty to the EU on conditions of reciprocity. If one of them could decide what EU law is for itself, it would be more equal than the others, and the EU legal order would quickly unravel as a result.
National constitutional courts, like the BVerfG, remain the sole guardians of their countries’ constitutional orders, including the safeguarding of inviolable, “eternal” elements of national constitutional identity. The BVerfG is perfectly correct about this, but it is entirely wrong about the remedy it should apply if it deems that the CJEU has made a ruling that violates its constitutional identity or is simply ultra vires. By historical analogy, the BVerfG’s ruling is reminiscent of the nullification doctrine invoked by the likes of Calhoun in the antebellum US, which would in essence allow member state courts to “pick and choose” which EU laws to respect – and which ones to disregard.
If a national constitutional court deems that an EU act or CJEU judgment clashes with its constitution, it cannot simply deem the act or ruling inapplicable in its jurisdiction. Rather, the court might seek to remedy the situation by “compelling their government either to amend their constitution, to seek to change the EU legal norm involved by working through the EU political process, or, if necessary, to withdraw from the Union altogether.” Those might seem like dramatic steps, but they are consistent with the EU’s status as a union of sovereign states, who have agreed – voluntarily – to be bound by EU law and to respect rulings of its Court of Justice so long as they remain members.
Of course, most constitutional pluralists didn’t have in mind that national courts would engage in such brazen disregard for the authority of the CJEU. They assumed that head-to-head conflicts could be avoided or worked out through dialogue and accommodation. The crisis created by the BVerfG’s Weiss judgment reminds us of a painful truth that many constitutional pluralists tried to wish away – that sometimes direct conflicts will occur.
Finally, the reactions of the autocratic regimes in Hungary and Poland to the BVerfG’s judgment underscore another problem with constitutional pluralism – a point several of us have been making for some time – namely that constitutional pluralism and constitutional identity arguments are prone to abuse by autocrats and their captured courts. No one should be surprised by the fact that the governments of Hungary and Poland quickly seized on the BVerfG’s ruling as a basis for arguing that their (captured) constitutional courts could override the CJEU. This was entirely predictable and indeed predicted.
Our focus in this statement is not on the risks the BVerfG’s ruling poses for the ECB monetary policy. Rather, we want to emphasize that whatever one thinks of the ECB’s quantitative easing programs, or of the CJEU’s or BVerfG’s assessment of those programs, the notion that a national court can simply override a CJEU judgment is inadmissible. Allowing national courts to declare that CJEU judgments they deem unacceptable are inapplicable in their countries would destroy the EU legal order. This is true whether the national court in question is a respected, independent court in a healthy national democracy or the captured “court” of an autocratic member state (which may not even meet the standards to qualify as a court under EU law). Therefore the BVerfG’s assertion that the CJEU’s earlier ruling in Weiss was ultra vires and has no binding effect in Germany must be firmly rejected.
Authors:
R. Daniel Kelemen, Rutgers University
Piet Eeckhout, University College London
Federico Fabbrini, Dublin City University
Laurent Pech, Middlesex University
Renata Uitz, Central European University
Signatories:
Stefania Baroncelli, Free University of Bozen-Bolzano
Eva Brems, Ghent University
Tamara Capeta, University of Zagreb
Carlos Closa, Spanish National Research Council
Vlad Constantinesco, University of Strasbourg
John Cotter, Keele University
Antonio Estella,University Carlos III of Madrid
Diana Urania Galetta, University of Milan
Christoph Herrmann, University of Passau
Tomasz Koncewicz, University of Gdansk
Markus Kotzur, University of Hamburg
Ronan McCrea, University College London
Lina Papadopoulou, Aristotle University of Thessaloniki
Vasco Pereira da Silva, University of Lisbon
Vlad Perju, Boston College
Joël Rideau, University of Nice Sophia Antipolis
Wojciech Sadurski, University of Sydney
Eleanor Spaventa, Bocconi University
Juan Santos Vara, University of Salamanca
Ramses A. Wessel, University of Groningen
Marlene Wind, University of Copenhagen
Jacques Ziller, University of Pavia
An important and clear statement, to which I fully subscribe.
Thank you for your statement, to which I fully subscribe.
We encourage those who share our views to add their names and sign-on to our statement in the comment section. We also of course welcome comments from those who disagree with our statement.
One has to agree with the authors as far as they state that judgements of the CJEU cannot be overruled.
However, this does not follow from the special position of the CJEU or the special nature of EU law, and certainly not from the primacy of EU law, but simply from the fact that there is no other court in the European legal system apart from the Court of First Instance and the CJEU. National courts, whether they are supreme courts or constitutional courts, operate in fundamentally different legal systems.
The authors, like many others – also in this blog – fail to recognise that the legal system of the European Union exists only to the extent that it is established under international law by the European treaties, in particular the Treaty on European Union and the Treaty on the Functioning of the European Union. Consequently, the doctrine of the primacy of European law also only exists insofar as the member states have agreed upon this.
Therefore, due to the nature of European law, which itself is only (derived from) international treaties, it is unavoidable that member states are able to disregard European law. There can only be a definitive solution and a definitive primarcy of European law once the European Union gains its own statehood (therefore the sovereigcy of the Member States ceases to exist).
No other solution proposed would ultimately overcome the shortcomings that have led to the present situation:
To the extent that there are complaints that a rule for the conflict of laws is missing, it should be noted that with the doctrine of the primacy of EU law such a rule exists. However, due to its nature as an international treaty (or at least derrived from one), the member states are not bound by the doctrine in their domestic law.
Insofar as it proposed to establish a “court of jurisdiction/competence”, this would not solve the problem at hand: again, a member state could easily disregard the judgment of such a court.
Even a provision in the respective national constitutions would not solve the problem, since constitutions are only national law and thus subject to the discretion of the member states.
With regard to Germany, it should be pointed out that – and in this respect, I would like to treat the interpretation of the constitution of the Federal Constitutional Court as a fact and not discuss it – according to Article 79 (3) of the Basic Law, certain provisions and constitutional principles are not subject to change and therefore cannot be made amenable by way of an international treaty or by EU secondary law. A decision of the CJEU which violates these principles cannot be binding for the domestic constitutional court.
In this context, it should be pointed out that the Federal Constitutional Court could not apply the remedy and legal consequences proposed by the authors. In the rules of proceeding pursuant to § 95 of the BVerfGG (Act on the Federal Constitutional Court), the Federal Constitutional Court can, in the case of actions, only declare that these actions violate the fundamental rights of the person concerned and, in the case of a law, declare the laws concerned null and void.
The proposed remedy/consequence, the amendment of the German constitution, of EU law or the withdrawal from the EU are political decisions that a Court cannot – and at least to my oppinion should not – make. In this respect, the Federal Constitutional Court acted correctly in that it left the political decision on how to deal with an (irreconcilable) contradiction between the legal systems, which, moreover, results from the political decisions regarding the current legal construction of the Union, to politics.
Finally, it should be pointed out that the Federal Constitutional Court based its decision precisely on an unalterable provision. In this respect, an amendment of the constitution is ruled out. What remains is therefore a (direct) change in EU law or withdrawal from the EU.
Dear Mr. Hansen,
Your argument appears to overlook the existence of Article 27 of the Vienna Convention on the Law of Treaties. Even if one were to agree to the proposal that the EU is nothing more than a treaty-based system (which is difficult to agree to), the fact would remain that Germany has undertaken international obligations and may not invoke its domestic law in order to avoid those obligations. One of the obligations undertaken by Germany is respecting the primacy and supremacy of EU law.
I am fairly certain that Germany has never undertaken an obligation to
respect the primacy and supremacy of EU law, even if that would violate core principles of the German constitution.
The CJEU might be of the opionion that Germany did that by signing the respective treaties etc. (which themselves do not contain any wording as “powerful” as primacy (that one at least made it into the Declarations) and supremacy), but the BVerfG has stated in the past that that is not the case (as that would be impossible under the German constitution).
Please read Articles 267 and 344 TFEU. It is utterly clear from these articles that the ECJ has jurisdiction to rule on the validity of acts of secondary law. Germany consented to these rules. There is no rule in German constitutional law which would prevent Germany from fulfilling those treaty obligations.
How is article 27 of the Vienna Convention on the Law of Treaties relevant? The article states:
‘A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.’
I don’t think anyone invoked German law as justification for not performing a treaty, EU or otherwise.
This is precisely what the BVerfG does: it argues on the basis of the Grundgesetz to refuse to perform a treaty to which Germany consented.
I’m still failing to see that, would you mind explaining in detail (at least in some)?
As far as I can see, the BVerfG has ruled that—
(i) The ECB and the CJEU had not applied EU law the way it should be applied so as to be compliant with the German Basic Law, which is why—
(ii) The German Federal Bank (and, in a broader sense, the German Federal Government) were under the constitutional duty to work towards the ECB’s compliance.
I can’t see for toffee how any of this were tantamount to Germany (through one of his judicial organs) invoking the provisions of German internal law as justification not to perform an EU treaty.
Rather, the BVerfG seems to be all for performing the EU treaties.
You write: “Therefore, due to the nature of European law, which itself is only (derived from) international treaties, it is unavoidable that member states are able to disregard European law.” This is fundamentally unconvincing, and it is irrelevant in this respect that the EU is not a state, but FRG is.
Germany has entered (freely) into a treaty which gives the ECJ the monopoly to rule on the validity of legal rules adopted by the EU institutions. Please read Article 267 and 344 TFEU. They are utterly clear. There is nothing (!) in German constitutional court which prevents Germany from entering into such a treaty.
The UN clearly is not a state: is Germany then (under your theory) not bound by its consent to have a dispute adjudicated by the ICJ if the Bundesverfassungsgericht dislikes the outcome of a judgment there?
ICSID is not a state: is Germany not bound by the outcomes of an investment protection dispute resolution to which it consented?
The WTO is not a state: is Germany not bound by a dispute settlement procedure under those rules?
This whole idea that a state is not bound by its treaty obligations is complete nonsense and has no basis whatsoever in German constitutional law, or indeed in public international law or EU law.
All of the systems you mention might at some point declare/state that the ruling of the established international court is binding and cannot be invalidated by national law. However, from the point of view of BVerfG/Germany all these provisions (including 267, 344 TFEU) contain an additional unwritten precondition: The ruling is binding, as long as it is not “ultra vires”.
Weis was probably the wrong case to declare “ultra vires” but the underlying reasoning is sound because under the current legal framework it appears to be the only way for BVerfG/Germany to accept the self-declared supremacy of EUCJ-rulings over German constitutional aspects (and any other supremacy of other international courts) in the overwhelming majority of cases.
If your statement is true (that the BVerfG would also revive its “ultra vires” theory with regard to dispute settlement procedures under international law, such as ICJ, WTO, or investment protection), then the BVerfG would go against international law in a way in which no other state on this planet does. There is no (!) basis in German constitutional law to rule in such a way.There is no (!) article of the Grundgesetz which says so. On the contrary, Article 24(3) GG states as follows: “(3) Zur Regelung zwischenstaatlicher Streitigkeiten wird der Bund Vereinbarungen über eine allgemeine, umfassende, obligatorische, internationale Schiedsgerichtsbarkeit beitreten.” Think about that for a moment! The mothers and fathers of the GG were more advanced than the current judges of the second senate.
It is interesting that 3 from 5 authors of this call are from outside the European Union.
Sorry, but even as an origin European law researcher I cannot accept ECJ as the last deciding Court as long as the conception therefore is only based on an international Treaty and not on an EU Constitution.
But it is up to ECJ to prove me in this point wrong and base their further decisions on EU Constitution and not only on the Treaty which can be overridden by the governments of the EU member states.
Show me it isn’t politics and rule of power, but EU rule of Constitutional law and I agree.
Could you please point us to the Article in the Grundgesetz which provides that the Federal Republic cannot accede to a binding dispute settlement under an international treaty? Thank you!
You can gladly add my signature to the statement. To indirectly answer a previous comment that I have read,I’m Professor of EU Law at the University of Athens.And if the ones in favour of this very dangerous and dogmatically problematic ruling of the BVerfG do wonder, I can reassure them that the vast majority of EU Constitutional Law scholars is deeply and negatively concerned with it. Ass. Prof. Dr. A. Metaxas, University of Athens.
I support and sign the Statement.
Janja Hojnik, University of Maribor, Slovenia
I fully adhere to your statement.
In my opinion, Weiss is a violation of article 4.3 TEU, or the principle of sincere cooperation, at the least: “the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties”. The BVerfG is fully “Member State” as regards EU Law, so it should abide by this principle even to define what its “constitutional identity” is. Moreover, the financial issue at stake is how to carry out “tasks which flow from the Treaties” and not tasks which are not foreseen in the treaties.
This case destroys the delicate balance between sovereignty and integration, to be taken advantage of by third EU MS, such as the reactions of Hungary and Poland show. But History teaches us that this tension or conflict can be productive in mid-term perspective, as it has been concerning fundamental rights and EU Law. This moment might also be a warning for the ECJ own position vis-à-vis the ECHR and ECtHR, which mimics this traditional Constitutional Courts and Constitutional identity story…
I fully subscribe to the Statement.
I would also like to endorse this position. A fundamental of the rule of law is that whoever addresses a courts for a judgment must abide by the matter, irrespective of whether it is, or is deemed to be, erroneous or not. The principle of conferral, which the BVerfG applies in a rather eccentric manner in its judgment, and the request being addressed by a (constitutional) court cannot release the latter from having to accept the requested judgment (right or wrong as it may be). If the BVerfG reserves the last word for itself, it should better never have started requesting preliminary rulings.
Prof. Dr. J. A. Kämmerer, Bucerius Law School, Hamburg
This is to express my full support for the statement.
Wojciech Szczurek, PhD, lawyer, Mayor of Gdynia, Poland
I fully agree with the text above.
Katarzyna Gruszecka – Spychala, lawyer, Deputy Mayor of Gdynia, Poland
I fully subscribe to the text written by R. Daniel Kelemen, Piet Eeckhout, Federico Fabbrini, Laurent Pech and Renata Uitz
Professor Thomas Giegerich, Europa-Institut, Saarland University
Jörg Gerkrath
I fully agree.
I fully agree with the “statement in defense of the EU legal order”. It could be added that the ECJ has been doing its utmost to maintain a constructive – albeit inofficial- dialogue with the national constitutional courts through regular visits and meetings between respective Presidents and members. Moreover the ECJ has created a forum where mutual decisions are compiled and classified https://curia.europa.eu/jcms/jcms/p1_2170125/en/ is .
« Pacta sunt servanda »
« Patere legem quem fecisti »
Every nation is ultimately bound by its constitution. No government in a constitutional system can rid itself of the burden of having to comply with the constitution by simply acceding to international treaties and organisations, be they the EU, UN or WTO.
If a conflict arises, then the government has to disregard international law lest it wants to stage a coup against the constitutional order.
Politically I would love it if the EU got a constitution and we moved the Kompetenz-kompetenz to this federal EU state. But this has not happened and I think it is maximally unwise for legal technocrats to just will this into being with a complete disregard for the neccesarry democratic legitimisation that such a step would require. “Require” and “Necessary” as per the constitution and as per long term political considerations in an age of populist rage fuelled at least in part by the fealing of disenfranchisement by large parts of the electorate regarding major political decisions.
Also if you think ultimate authority really lies with the ECJ, why has it sat by idly whilst democracy was and is being dismantled in Hungary and Poland? If it really has this authority then the results are shockingly poor.
I fully subscribe to the above statement.
Kevin O’Connor BL
Administrator – European Commission
As a card carrying pluralist, I don’t agree. First, this piece appears to confuse equal treatment under the law with one law for all, to be uniformly applied. But treating people as equals means treating like cases alike and relevantly different cases differently. Second,it assumes the (misguided) uniform application of the law requires a single and supreme sovereign ruler on the law. But the rule of law is distinguished from the rule of persons precisely in there being checks and balances on arbitrary decisional power – in other words through pluralism. One way in which one can ensure the relevantly equitable formulation and application of the law is through ensuring reciprocity amongst those who apply the law and on whom it will be applied. Third, there is the usual snide remark that unwittingly constitutional pluralists give succour to authoritarians (McCormick, Weiler et al are not malign, but they are foolish …). Yet, the arguments the authoritarians use involve the need for a sovereign ruler to speak for the people, overcome minorities, ensure uniformity and so on – they are strongly anti pluralist. Moreover, they have typically sought to capture constitutional courts to enforce just these sorts of arguments. So indeed, one needs to be careful about the arguments one deploys …. Surely, democratic values suggest that is justified to force decision makers to justify their decisions to those who will need to not only implement but also fund them, and a pluralist system is about ensuring that. The good question lying underneath all this is how do you deal with non-democrats and anti-constitutionalists within a democratic constitutional system. I think one only has to look at a number of mono constitutional states to see that is not a problem for constitutional pluralists alone.
I totally agree with the authors of the post.
Sara Poli, University of Pisa.
Three furhter points:
1. the so-called ‘Ewigkeistklausel’ of arr. 79 GG could be overriden by a revivion submitted to referendum see a.o. K. RODE, Verfassungsidentität und Ewigkeitsgarantie: Anmerkungen zu einem Mythos der Deutschen Staatsrechtslehre, Peter Lang, Berlin, 2011. Not that I think that a referendum is the best thing to undertake at present.
2. There is no provision in the GG which explicitly gives mandate to the BVerfG to check whether the EU institutions respect their competences. It is a construction of the BVerfG itself, which could be overturned by the BVerfG on the basis of new circumstances like the present ones. Such a change of jurisprudence would correspond to the hypothesis “change the constitution”.
I subscribe to the above statement. Please add my name to the list.
Fausto de Quadros