The recently launched Conference on the Future of Europe aspires to provide a forum for discussion about the potential reforms of the EU as well as about the future of the European continent. How do you the Conference unfolds?
I am a bit sceptical as far as this Conference is concerned. Especially if you look at its composition and at the overall experience we have made with the European Convention on the Future of Europe my guess is that it will lead to a solidification of those forces who are interested in increasing the federal concept and no one else will have any decisive say. I had a Ph.D candidate who wrote his doctoral thesis on the European Convention and who has shown in a very clear analysis that from the perspective of the European Parliament, the Commission and the CJEU, this forum was helpful as they could outmaneuver the resilience of the Member States, national governments and the MPs from the member states that were more or less isolated. If Europeans want a federal state so be it. But beforehand, it is necessary that those twenty-seven Member States or whoever wants to be part of it,
let their people decide whether they want it or not.
It is not up to self-referential Conventions or Conferences that are based on nothing but the interests of European institutions to decide whether the European Union should be changed or evolved into a federal state and it is definitely not up to CJEU. The Grundgesetz, entails a provision that if the Constitution, our Supreme Law and foundation of the legal order is to be abolished in favor of a European Constitution, it is up to the German people to decide. And it is for Hungarians to decide it for Hungary and the French people for France and so on.
Nevertheless, the Conference could offer a unique opportunity to discuss questions concerning the reform of the competences or the composition of the CJEU as well as the interplays of national constitutional courts and the CJEU. What reform steps would you think worth considering in order to achieve a harmonious cooperation as well as an equilibrium that aims to better respect the constitutional structures and identities of the Member States? What reform steps should be necessary to encourage a cooperation among the CJEU and national constitutional courts that is sincere and are among equals?
I think the first step would be that our and other national constitutional courts’ reservations to the precedence of EU law are formally accepted. A second would be a change in the spirit cooperation is practiced. The CJEU must listen more intensely to what constitutional courts ask from it and must learn to weigh preliminary requests. It makes a difference whether a court of first instance asks a question or the court which is ultimately responsible for the integrity and coherence of the national legal order. If you look at the PSPP decision, we had some serious questions, some of which had already been put forward in our preliminary request in the Gauweiler case in 2014. For example, the dilemma of how we to deal with the European Central Bank as a very powerful but democratically scarcely legitimized institution that makes all ministers of economy superfluous and which is not effectively controlled neither by politics nor by courts. The CJEU however twice did not even address the question though independent authorities pose a problem to democratic legitimation of institutions. You can find that already in the Meroni v High Authority case from the 1950s.We indicated that Article 47 of the Charter of Fundamental Rights of the European Union requires full assessment of facts. The CJEU ignored this claim too. It just stuck to what the respective EU institution had declared. However, when it comes to Member States, they are treated completely differently. The CJUE makes assessments of facts to the last details, even into footnotes of legislation. With regard to the EU institutions, it does not exercise such control. The CJEU thinks because it stipulates the primacy of EU law and its mandate national courts just have to follow.
What it expects is obedience not dialogue.
This is not the way the CJEU can deal with national constitutional and supreme courts. We do not want a special treatment but if there are arguments that are perhaps not very comfortable for them, and which might cause tensions within the CJEU it has to deal with them in a fair, honest and open way.
National judges are generally required to be up to date and continuously learn EU law. I am wondering weather we can expect EU judges to learn about the national constitutions as well as about the jurisprudence of constitutional courts.
I absolutely share your view. I think this should be a necessity as far as the core structures of constitutional law are concerned.
Europe will not work with a top-down governance system.
Thus, EU institutions have to be aware of the differences and peculiarities if they want to be successful. In the same vein, the European Commission would be better advised if it knew a little bit more about what is happening in the Member States and their legal orders. At present it seems to be very self-referential. Legal and constitutional comparison is an indispensable tool to apply EU law. Therefore, EU lawyers and people who deal with the law of the European Union should speak more than “bad English”. Every European Union employee should speak at least three languages and they should understand more how the different Member States work. Otherwise fragmentation, reluctance and hostilities in the Member States will grow and ultimately put the European Union as such in danger. Europe shall be successful but not as a foreign power that rules upon us.
How could public law reforms such as the concept of the “reverse” preliminary ruling might enhance or solidify the European cooperation in the future?
The idea is that Article 4 paragraph 2 of the Treaty on the European Union already entails the duty of EU institutions to respect national identity. As I´ve mentioned earlier, in a legal sense constitutional identity at least in our country is the core of a broader national identity in a legal sense. Against this background the CJEU should not decide on its own poor knowledge of national constitutional law, on how it is to be interpreted or how it has to be dealt with.
It should instead ask the competent courts of the Member States in the same way as they do if they have to apply and interpret EU law.
I already mentioned the Egenberger case. The German Federal Labor Court had a very peculiar understanding of the special role the churches have to play as employers. They put forward this peculiar understanding in their preliminary request to the CJEU. The Constitution however entails provisions concerning church-state relationship and it is generally known, that the Federal Constitutional Court has decided at least thirty cases in his respect. The Federal government put this argument forward in the case, unfortunately without success. It would have been quite reasonable had they asked us, especially as they did not know what was right. A potential conflict could have been avoided this way and this can be the case in a lot of other procedures too. Nonetheless I do not think it is likely that the Conference will pick this idea composed as it is. In addition, the CJEU doesn´t have a major interest in a sincere cooperation. However, if they want to do something good, they should really think over this possibility.
The 15th facultative protocol to the European Convention of Human Rights entered into force throughout the summer. That protocol emphasized the role of subsidiarity and the margin of appreciation. Would it be a good reform step if the European Court of Human Rights would become a kind of “last resort” court after the CJEU as the Treaties require?
The principle of subsidiarity is also mentioned in the Treaty on European Union. I think that the approach of subsidiarity of the European Court of Human Rights would be a good example for the Luxemburg court to follow. As you said, we do not even have to modify the Founding Treaty to achieve this, everything is there already. Nevertheless, we should not believe in fairytales.
This is about power and the CJEU is not interested in limiting its power.
That is human, and every institution tends to enlarge their scope of influence. This is why people in 18th century detected the separation of powers as a good instrument to contain too much eagerness.