Speech by the President of the Constitutional Court Ineta Ziemele at the conference “Constitutional EUdentity 2019 unity in diversity – common and particular values”
Professor, PhD Ineta Ziemele
President of the Constitutional Court of the Republic of Latvia
Budapest, 8 March 2019
“Can Constitutional Courts delimit European identity?”
Introduction[1]
Today we have spoken about our separate legal orders and what makes each one of them unique and why the EU law trumps that once in a while. However, it is necessary today within the legal space of the European Union to ask a question what is beyond the separation, what unites the separate legal orders. It is in this context that I pose the question whether Constitutional Courts of the European Union can also delimit the European identity.
It is important at the beginning to identify the way I look at the relationship between national, European and international legal orders. In view of the theories of law developed since the 19th century and the practice in constitutional law today, we have at least three possible approaches which I sum up in a simple way for the purposes of this speech. There is an approach that explains this relationship by reference to the autonomous but interrelated character of the different legal systems. For instance, the Italian Constitutional Court has repeatedly indicated that the Italian and the EU legal systems “are configured as distinct and mutually autonomous, even if coordinated”.[2] There still persists an approach that insists, in principle, on their separate nature. For example, the Russian Constitutional Court in the Yukos case stated as follows: “Recognizing the fundamental significance of the European system of the protection of human rights and freedoms, [judgments of the European Court of Human Rights being part of it,] the Constitutional Court of the Russian Federation is ready to look for a lawful compromise for the sake of maintaining this system, while reserving the right to determine its readiness for such a compromise, because it is the Constitution of the Russian Federation which outlines the boundaries of compromise regarding this issue”.[3] And there is an approach, which I share, that points out that all legal systems are part of the global legal fabric, especially in an evidently globalized world which demands solidarity among the international actors, including states, going beyond the mere cooperation model of the 20th century. To place these approaches specifically within the EU and national law relationship, there is not an immediately perceptible but an important difference of whether we conceive of their interaction as one of competing authorities or whether we say that they are all part of and contribute to the same European and global legal space.
It is against this background and by using examples from the case-law of the Constitutional Court of the Republic of Latvia that I will explain my views on the role of constitutional courts in delimiting European identity. I will reflect in the following three directions: (1) EU law as national law and vice versa, (2) building common European legal space within the respective competences separately but also together, and (3) better integration of the constitutional law discourse of the Member States within the case-law and working methods of the Court of Justice of the European Union.
All EU law is national law and vice versa
Rather soon after Latvia’s joining the EU the Latvian Constitutional Court stated the obvious: “after the ratification of the treaty on the accession of Latvia to the European Union, the law of the European Union has become an indispensable part of Latvian law. Therefore legal acts of the European Union and their interpretation by the Court of Justice have to be taken into account when applying national legal acts”.[4] In fact, there are two possibilities and both have arisen in practice. First, the Constitutional Court may need to apply EU legal acts directly. Second, the Court may be called upon to incorporate into the interpretation of the national legal provisions the relevant principles that are deriving from the EU legal acts or have been identified by the Court of Justice. For the Constitutional Court this has meant that there have been inevitable consequences relating to the constitutional fabric of Latvia. For instance, the Court has implied that joining the EU has meant that Article 82 of the Constitution (which provides for a three-level system of courts in Latvia) has been amended to mean that the Court of Justice of the European Union also is one of the courts that “hears court cases in Latvia”.[5]
The other side of the coin is at the first glance more difficult to accept. Taking into account the doctrines of primacy, supremacy and unity of the EU law, it might appear absurd to argue that all national law also forms part of the EU law. However, this difficulty needs to be addressed and dealt with and the way to do so is to confront the complex debate on the source of legitimacy of the EU legal system. As noted by Jürgen Habermas, “at the European level, the citizens should be able to form judgments and make political decisions simultaneously and on an equal footing both as EU citizens and as members of a particular nation belonging to the EU”.[6] Since it is the citizens as citizens of the Union and as citizens of Member States who are the source of law-making powers at the EU and the national levels, does it make legal and political sense to insist on sovereignty of each people rather than seeing that all the European people are the source of legitimacy of the common European legal space? The argument is not that the different people give up their sovereignty and the legal systems merge into one legal system. The European diversity remains the particular strength of the EU. However, more often than not changing the emphases and seeing also that all national law contributes to the EU law would result in a constant awareness of the domestic legal regulation by the decision-makers at the level of the European Union.
Hence the conclusion that all national law is also EU law in a broader conceptual sense logically follows from the presumption that the citizens of Member States (who are also citizens of the Union) are rational persons and would not lend their sovereign power to a system in which their left hand (the EU) could supersede either without proper knowledge or proper procedures what their right hand (the respective Member State) is doing. Therefore ways should be found to enrich European legal discourse and decisions with national legal discourses to a much greater extent.
There will be spheres in which elements of the common legal space of the Member States and the EU will be created only by Member States or only by the EU. If the common legal space of the EU and the Member States were to be seen as a large pie, decisions on a large majority of the surface of the pie will be made jointly by the EU and the Member States – either by means of formalised joint decision-making procedures (for instance, by Member States choosing how to implement directives) or by means of an informal mutual influence. However, it is inevitable and necessary that there will be rather narrow slices of the pie where decisions will be made exclusively either by one or the other.
Identities of the Member States and the EU as the demarcations of the zones of exclusive decision-making
The second premise of my presentation is that in the common legal space of the European Union and the Member States the zones of exclusivity of decision-making are demarcated by their respective identities. The exclusivity of decision-making is justifiable and should be permissible if it is necessary to safeguard what are after all narrowly defined identities.
The Constitutional Court of the Republic of Latvia has indicated that “provisions of Latvian law are to be interpreted in a way that removes conflicts with Latvia’s obligations towards the European Union, unless this touches upon the basic principles included in the Constitution”.[7] These “basic principles” include “the fundament of an independent, sovereign and democratic republic based on the rule of law and fundamental rights” and “the right of the citizens to decide upon issues that are significant for a democratic state”.[8]
The EU’s main commitment now is towards “respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities” and the promotion of “pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men”.[9]
If one were to compare the general principles characterizing, for example, the Latvian constitutional identity and what has transpired in the legal scholarship and the case law of the Court of Justice with regards to fundamental principles of the EU, one could follow easily a very interesting view taken by Advocate General in the Gauweiler case on common constitutional culture as part of the EU identity:
“Specifically, the Court of Justice has given preference to those constitutional traditions when establishing a particular culture of rights, namely that of the Union. The Union has thus acquired the character, not just of a community governed by the rule of law, but also of a “community … with a constitutional culture”. That common constitutional culture can be seen as part of the common identity of the Union, with the important consequence, to my mind, that the constitutional identity of each Member State, which of course is specific to the extent necessary, cannot be regarded, to state matters cautiously, as light years away from that common constitutional culture. Rather, a clearly understood, open attitude to EU law should in the medium and long term give rise, as a principle, to basic convergence between the constitutional identity of the Union and that of each of the Member States.”[10]
At the end of the day, it is probably not so much a question of the values that we share whose core elements have been agreed on, but about the who and the how, as European societies continue to evolve and converge in their value systems. It is here that a logical continuation of my argument appears in that also constitutional courts have a competence in delimiting European identity. In other words, you can approach the function of the constitutional courts in identifying and protecting the constitutional identity of a given society as something to separate this society from the common EU legal space or to the contrary – as something necessary and contributing to the common EU legal space. I argue that within the constitutional pluralist vision of the world and the world order one should find ways to accommodate and streamline all the legitimate authority claims with regards to common European constitutional culture.
National constitutional courts and the Court of Justice as the definers of the limits of identities
Within the common European legal space there are zones that are submitted to the exclusive authority of the Court of Justice and zones that are subject to exclusive authority of the constitutional courts. Most of the time, this has not generated any particular problems. However, in a more dynamic world with many more challenges that require a joint action, questions of who has the ultimate authority will arise more often. Furthermore, the outer limits of the areas of exclusive authority develop and change and the question how to determine these areas of possible overlap have arisen more and more often. It seems natural that this role should be played by both the national constitutional courts and the Court of Justice.
It has been stated that national constitutional courts “are authorized to guard the inviolability of those national constitutional principles that are constitutive for democracy and the rule of law in the individual Member States”.[11] At the same time, it should not be disputed that the main task of the Court of Justice is that of “securing uniform interpretation of EU law …, thereby serving to ensure its consistency, its full effect and its autonomy as well as, ultimately, the particular nature of the law established by the Treaties”.[12] In order to enable the Court of Justice to fulfil its role as the ultimate guardian of the consistency of the EU law, the domestic courts should not be in the position to question the need and occasionally the obligation to refer preliminary questions to the Court of Justice by applying Article 267 of the TFEU.[13]
With a view to this understanding of the functioning of national law and the EU law, it is typically argued that the national constitutional courts and the Court of Justice guard the borders of the zones of exclusive decision-making power and these borders coincide with identities of the Member States and the EU. In other words, the outer limit of the competence of the Court of Justice is the national identity of the Member States, while the limits of the discretion of the domestic courts are marked by the identity of the EU. Nevertheless, if it is accepted that national laws together with the EU law form and contribute to the European pluralist constitutional fabric then the ‘border discourse’ is not really the main paradigm.
Conclusion – sincere cooperation (seen as a two-way street) as the way to resolve conflicts
This brings me to my final premise for the presentation. Conflicts between national constitutional courts and the Court of Justice, be they seeming or real, have in fact been very few in numbers; however, they are being still conceived in terms of possible incursions by one of the partners in the identity of the other one. Such a conception represents a competing world view also within the context of the EU. To the extent that we have not moved away from the view that the constitutional courts have the exclusive competence to guard the constitutional legal order and the Court of Justice has the exclusive competence to guard the unity of the EU legal order, we will continue the discourse that we have known for last 15 or 20 years, namely that of competing authority. Since 2004 there have been some successful steps taken towards the new paradigm of constitutional pluralist view but there have also been failures. It is true that older EU member states have had more time to reflect on the changed concept of state sovereignty while the more recent member States have had relatively little time for that and that aspect, too, generates difficulties.[14]
The tool for avoiding and resolving such conflicts is the principle of sincere cooperation laid down in Article 4(3) TEU. However, for this tool to be used effectively the cooperation has to actually be cooperation and it has to be actually sincere. The cooperation as a two-way street means that the constitutional courts too should see their arguments and reasoning reflected in the arguments of the Court of Justice. Pluralist outlook requires to reconsider the methodology of the judgments of the Court of Justice. I would suggest that the next step is to find the ways and means to show that not only national courts apply and are inspired by the EU law, as interpreted by the EU courts, but also that the EU courts are influenced by consensus emerging at the level of constitutional adjudication across Europe. President Lenaerts has pointed out to the importance of the comparative law research for the work of the Court of Justice. One wonders whether that method could not be made more visible to the outside world among other things through changes in the Rules of Procedure and the methodology of the judgments.
The national constitutional courts will want to collaborate with the Court of Justice and to duly take into account the EU law if they will see the cooperation as a two-way street.[15] In a truly common legal space of the EU and its Member States the key is good faith, good intentions and the degree of synergies inspired by all stake-holders.
[1] I would like to thank Mr Kristaps Tamužs, Advisor to the Constitutional Court of Latvia, for the original research and assistance that has gone into preparing this paper.
[2] Judgment of the Constitutional Court of the Republic of Italy of 5 June 1984 in the case no. 170/1984, para. 4.
[3] Judgment of the Constitutional Court of the Russian Federation of 19 January 2017 in the case no. 1-П/2017 concerning the possibility of execution of the judgment of the European Court of Human Rights in the case “OAO Neftyanaya Kompaniya Yukos v. Russia”, para. 2. English translation of the judgment is available here: http://www.ksrf.ru/en/Decision/Judgments/Documents/2017_January_19_1-P.pdf. The cited excerpt has been edited for clarity.
[4] Judgment of the Constitutional Court of the Republic of Latvia of 17 January 2008 in the case no. 2007-11-03, para. 24.2.
[5] Judgment of the Constitutional Court of the Republic of Latvia of 20 December 2006 in the case no. 2006-12-01, para. 9.2.
[6] Habermas J. The Crisis of the European Union in the Light of a Constitutionalization of International Law. The European Journal of International Law, 2012, vol. 23, p. 343.
[7] Judgment of the Constitutional Court of the Republic of Latvia of 17 January 2008 in the case no. 2007-11-03, para. 25.4, emphasis added.
[8] Judgment of the Constitutional Court of the Republic of Latvia of 7 April 2009 in the case no. 2008-35-01, para. 17.
[9] Art. 2 TEU.
[10] Opinion of Advocate General Pedro Cruz Villallón in the case C-62/14 Peter Gauweiler, delivered on 14 January 2015, para 61; emphasis added.
[11] Habermas J. The Crisis of the European Union in the Light of a Constitutionalization of International Law. The European Journal of International Law, 2012, vol. 23, p. 341.
[12] Opinion 2/13 of the Court of Justice of the European Union of 18 December 2014, para. 176.
[13] On the approach of the Constitutional Court of the Republic of Latvia, see the judgment of the Constitutional Court of the Republic of Latvia of 13 October 2015 in the case no. 2014-36-01, para. 14.
[14] More on this point, see Albi A. EU Enlargement and the Constitutions of Central and Eastern Europe. Cambridge: Cambridge University, 2005.
[15] Speech “The Role of the Constitutional Court in the Globalised World: New Challenges, Old Virtues?” by judge Matej Accetto of the Constitutional Court of the Republic of Slovenia at the bilateral meeting of the judges of the Constitutional Court of the Republic of Latvia and the judges of the Constitutional Court of the Republic of Slovenia, held in Riga on 3–5 October 2018.