Address by the President of the Constitutional Court, Irēna Kucina, at the international conference “EUnited in Diversity III: The Role of Constitutional Justice in the EU Common Legal Order”
Asoc. Prof., Dr. iur. Irēna Kucina
President of the Constitutional Court of the Republic of Latvia
Panel: Different National Constitutional Law “Constellations” Relevant for the EU Law
“The duty of loyalty towards EU law in the constellation of protection of individual fundamental rights”
Dear Colleagues,
Allow me to begin by expressing heartfelt thanks to the Court of Justice of the European Union and its President, Koen Lenaerts, as well as to all constitutional review institutions of the EU Member States, for embracing and supporting the idea that was born in Latvia – the “EUnited in Diversity” conference – and for helping to ensure that it lives on.
A very special thanks goes to former President of the Latvian Constitutional Court, Ineta Ziemele, the Supreme Court of the Netherlands, and the Constitutional Court of Bulgaria – your contribution has been essential in ensuring that the spirit of Riga I conference continues not only to live, but to grow into a lasting European dialogue.
With great anticipation, we already look forward to Riga IV!
I
The duty of loyalty in the European Union law is more than a written provision of a treaty. The obligation of sincere or loyal cooperation derives from membership to the Union and not from compliance with agreed commitments. It goes beyond the conventional framework set out today in the Article 4 paragraph 3 of the Treaty on European Union, which stipulates that “Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties”.
The Court of Justice of the European Union has pointed out already in 1996, thus, long before the Treaty on the European Union entered into effect, in the Brasserie du pêcheur case that the principle of loyal cooperation is a doctrine “inherent” in the EU legal order – perhaps it hinted at the autonomous character of this principle which would apply even in the absence of a written provision. The principle of loyal cooperation characterises the legal order of the European Union, endowing it with its “identity”.
The principle of mutual loyalty functions in three dimensions – firstly, the European Union, in drafting its legal acts and enforcing its policy, must respect the interests of Member States, must abide by the limits of its competence and may not implement measures that cause harm to the Member States.
Secondly, Member States must refrain from any actions that might jeopardise the aims of the Union and must actively participate in the implementation of the European Union law.
And, thirdly, the Court of Justice of the European Union has applied this principle also to the horizontal relationships between the Member States. They must cooperate and refrain from any steps that might hinder any other Member State in attaining its aims within the European Union. Cross-border cooperation in judicial matters can be mentioned as an example.
What should be the reaction of a constitutional court when the stated national interests diverge from the aims of the European Union? In the next few minutes, I will introduce you with how the Constitutional court of Latvia understands and applies the general principle of sincere cooperation, especially in the constellation of the protection of fundamental rights of the individual.
II
One of the core duties of the Constitutional Court is to uphold the private person’s fundamental rights. I will provide today with two examples, where a failure to comply with the principle of loyal cooperation, without a timely intervention of the Constitutional Court, would have breached our EU legal obligations, but also caused an infringement on a private person’s fundamental rights.
In both cases, the Constitutional Court applied directly the principle of loyal cooperation, recognising it not only as being an obvious part of the European Union law but also as one stellar element in the national constitutional law constellation.
III
The first case concerned the obligation of public disclosure of the salaries for employees in State and local government institutions. Indeed, the contested national regulation provided that every salary paid in the public sector should be freely accessible on the world wide web. There was an underlying matter – what this case was really about. May the National Parliament adopt a text knowing, that after the national law is voted, there will be a new EU regulation, with higher requirements for data protection?
The Constitutional court recognised that even though the contested law pursued the noble aim of transparency, nevertheless it was at odds with the basic principles of EU data protection, and principle of sincere cooperation.
The moment when the contested law was being debated in the Parliament coincided with the period when the General Data Protection Regulation was adopted. The law entered into force during the transitory period during which the Member States had been given time to take the necessary legislative measures to align the national legal provisions with the provisions of the Data Regulation.
The Constitutional Court recognized that, from the moment when the Data Regulation entered into effect, persons had the right to expect that the Data Regulation would become applicable in the set term.
The Constitutional Court pointed out that a Member State’s obligation to refrain from taking such measures that could seriously hinder attaining the results, envisaged in an EU legal act, followed from the principle of loyal cooperation. This obligation, as the Court underlined, is especially applicable during the period when a regulation has already entered into force but has not become applicable yet. Therefore, the Latvian legislator, had the legal obligation to take into account that applicability of the Data Regulation was imminent.
IV
The second case, a very recent one, is affecting many private individuals in the context of the fluctuations of the Euribor rates. The case is still pending as the Constitutional court has referred several preliminary questions to the Court of justice of the European Union. The duty of loyal cooperation in this case relates to the obligation of the legislator to consult with the European Central Bank, before legislating on a matter concerning the competence of this EU institution, irrespective whether advice given by the European Central Bank will be taken into account.
Even though, the Latvian legislator had sought for advice from the European Central Bank, it was argued, that it did so in such a late stage of the legislative procedure, that there was no realistic possibility to hold a meaningful debate on the opinion provided by the EU institution.
There’s little doubt for the Constitutional Court, that the principle of sincere cooperation may impose also for a negative obligation upon Member State to refrain from taking any actions that might be detrimental for the interests of the European Union. However, the Constitutional Court is in the opinion, that there should be a further clarification whether the conclusions of the general case-law of the Court of Justice on notifications to EU institutions, and especially the consequence that a failure to send a notification results in the inapplicability of the national act, should be also applying in the case of consultations with the European Central Bank.
V
These two examples, indicate that we strive to achieve a fair balance between effectiveness of a national regulation and the highest realistic level of protection for individual fundamental rights. This involves, in my opinion, a constellation of different stakeholders on the national and European Union level. It is possible, only if all “players” in the national legal systems and the shared legal space of the European Union, as invisible as they might seem to one another, are within common and harmonious constellation of loyal cooperation.
These are not merely words, these are deeds that can be quite objectively verified within the framework of various legal proceedings.
Thank you for your contribution to the dialogue of cooperation and friendship that unites us!