V. SEEKING SOLUTIONS TO CONFLICTS BETWEEN NATIONAL
IDENTITIES AND EUROPEAN RULES AND PRINCIPLES
Mr Bertrand Mathieu,
Professor of public law at the University of Paris 1
Panthéon-Sorbonne, State Councillor in extraordinary service
The French Constitution has gradually adapted to European integration. Initially, it took account of France's participation in the European Union, making it a constitutional rule. More specifically, this participation takes place within the framework set by the Lisbon Treaty of 2007 (art 88-1C).
While France's participation in decisions taken within the framework of the European Union considerably strengthens the role of the so-called executive power, constitutional provisions aim to institutionalise the role of the French Parliament. The Parliament can intervene downstream on draft and proposed acts of the European Union, which must be submitted to it, by expressing its opinion, where appropriate, through resolutions (art. 88-4). When the Union is enlarged, Parliament may be involved under the conditions applicable to a revision of the Constitution (Art. 88-5). Parliament may also oppose changes to the rules governing the adoption of European Union acts under certain conditions (Art. 88-7).
One of the ways in which Parliament can intervene should be highlighted. It enables the National Assembly or the Senate to issue a reasoned opinion on whether a draft European act complies with the principle of subsidiarity. This opinion is sent to the Presidents of the Council, the Commission and the European Parliament. Within this framework, the Assemblies may, via the Government, refer a matter to the Court of Justice of the European Union if they consider that the principle of subsidiarity has not been respected. Referral is automatic at the request of 60 Members of Parliament or 60 Senators (Article 88-7).
While the first provisions mentioned aim to involve the parliamentary assemblies in certain decisions taken by France, this last provision follows a slightly different logic. It is intended to give Parliament a means of intervening in the event of conflict between France and the European Union over the division of powers. However, it has not had much success.
The purpose of this brief intervention is to point out that conflicts between the States and the European Union, as regards both respect for the principles of national identity and the distribution of competences, are tending to multiply and that, in this context, it is appropriate to consider mechanisms for resolving conflicts. The presupposition that will serve as a guideline here is that the last word in resolving these potential conflicts must be left to the political authorities, which is a democratic requirement.
1. Identifying potential or actual conflicts between Member States and the European Union
The crises affecting the relationship between national laws and European Union law confront ever closer European integration with respect for national sovereignty and constitutional identities.
a) The imperium of consensual and largely indeterminate values
Article 2 of the Lisbon Treaty refers to the Union's values, expressed in very general terms and which will help to extend the Union's competences and its intervention in areas linked to the sovereignty of States. These values include respect for human dignity, freedom, democracy, equality, the rule of law, respect for human rights, including the rights of persons belonging to minorities, pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men".
While nominally these values are the subject of broad consensus, it is clear that they can refer to very different content.
If we take the example of the rule of law649(*), this concept is in reality a formidable instrument of assimilation. While respect for the rule of law, which essentially implies respect for the individual and his or her protection against arbitrary action, is truly part of Europe's common heritage, it can be used to impose ideological conceptions, for example, on the place to be given to sexual identities, or institutional systems. For example, the separation of powers can be conceived as implying the independence of judges or the autonomy of the judiciary, which are not the same thing.
However, the concept of the rule of law, like that of non-discrimination, whose scope may be limitless, is in fact defined by the European courts. In a democratic system, however, it is not the role of the courts to define the substance of these concepts, but at most to ensure respect for the fundamental requirements that fall within them, as defined by the States, if necessary in the form of a convention.
From this point of view, the conflicts between certain States and the European structures, particularly the courts, do not generally concern the recognition of the values enshrined in the Treaty, but rather the meaning that should be given to them.
b) The diversity of national resistance to the imperium of European case law
Resistance by national courts to European Union law has taken a number of legal forms. Here are just a few recent examples, whose diversity and proliferation reflect the importance of the problem.
The Polish question is emblematic from this point of view. While the European Court of Human Rights (22 July 2021, case 43447/19) ruled that the Polish court responsible for applying European law was not a court established by law within the meaning of the European Convention (art. 6 right to a fair trial), and following case law of the CJEU aimed at protecting the independence of national courts (e.g. 7 February 2019, C-49/18), the Polish Constitutional Court, in a decision of 7 October 2021, found certain provisions of the EU Treaty incompatible with the Polish Constitution, in particular the provisions of Articles 1(1) and (2) in conjunction with those of Article 4 insofar as they oblige a national authority, or allow it, not to apply a provision of the Constitution. The Court contests the fact that integration is achieved, in particular, through the interpretation of EU law by the CJEU.
The German Constitutional Court has declared itself competent to decide that a European institution has acted beyond the powers conferred on it by EU law650(*).
The French Constitutional Council, like other constitutional jurisdictions, notably Italian and Spanish in somewhat different forms, has reserved the application of secondary European legislation when principles inherent in constitutional identity are at stake. However, in the absence of a constitutional definition of these principles, the French Constitutional Court has applied them in a particularly modest way, considering that the prohibition on delegating the exercise of law enforcement powers to private individuals fell within the scope of such principles651(*).
The French Conseil d'Etat ruled, with regard to the application of a so-called "privacy and electronic communications" directive, that it could not apply a provision of secondary legislation when it infringed a constitutional requirement that did not enjoy protection under Union law equivalent to that guaranteed in the national legal order, in this case requirements linked to national security652(*).
2. Overcoming the squaring of the circle to reconcile the effectiveness of European law and respect for national identities
It is up to the constituent to set the values of identity and for the national courts to ensure that they are respected; it is up to the Treaty to set the common values and for the European courts to ensure that they are respected. The question is then, of course, how to articulate the protection of these two identities.
Today, these relationships are essentially regulated by the courts, which lead them to intervene to a large extent in the remit of political bodies.
Admitting the unconditional superiority of European Union law, if necessary as interpreted by the case law of the Court of Justice of the European Union, or, on the contrary, the equally unconditional prevalence of national constitutional rules, can only lead to a dead end.
As the relationship between systems is today essentially regulated by judges, and as this regulation leads, by an induction effect on national jurisdictions, to favouring the role of the European judge, and therefore of the European identity, to the detriment of national identities, the conditions for a new balance must be sought. Indeed, unless a federal approach is adopted, it is difficult to accept that the European judge should, in the last resort, be the judge of national identities.
Within the limited framework of this paper, I will focus on two areas which are merely avenues for reflection:
a) Defining the relationship between national and European competences
This definition must be the work of politicians.
It is a question of clearly determining what competences should be entrusted to European structures and what competences and powers should remain in the hands of the Member States. To do this, we need to distinguish between what comes under the heading of European identity, which justifies the association of a certain number of States, and what comes under the heading of national identity.
We need to think in two directions.
Firstly, we need to define national competences and European competences more precisely. We need to think about what the Member States really intend to pool.
Secondly, we need to recognise that the affirmation of a principle of identity constitutes a reservation to the absolute prevalence of the European order over the national order, a prevalence that is fixed by the Treaties and is only valid because it is accepted by the national Constitutions. Faced with fairly general provisions enshrined in the European Convention, it is up to national constitutions to enshrine in the fundamental text the principles or areas that are part of their national identity, such as the concept of the family, border control, etc. Respect for these principles must then be binding on the national court and constitute a limit to the intervention of the European court. On the other hand, a general formula aimed at recognising the existence of principles that are consubstantial with national identity does not achieve its objective because it leaves it up to national and supranational courts to give content to these principles.
b) Moving from an obligation of submission to an obligation of constructive dialogue
A conflict of the kind that pitted the Polish Constitutional Court and, to a lesser extent, the German Constitutional Court head-on against the Court of Justice of the European Union, demonstrates both the impasse created by the requirement of a single vertical relationship between European and national courts and the need to find a way of resolving conflicts. It is therefore conceivable that, in terms of relations between courts, national courts could question the European courts whenever a conflict arises or is likely to arise. We could also imagine the creation of a flexible conciliation body, a kind of court of conflict. In the event of conflicts not being resolved or, and I stress this point, in the event that the resolution of the conflict would, in the view of the State concerned, run counter to a fundamental principle recognised by the constitutional order, the political authorities should be given the final say in the matter. While judges can help to find solutions to resolve conflicts, it is not up to them to take the place of political leaders, intervening in the exercise of sovereign power or in the context of negotiations in ad hoc bodies. It is in this context that the intervention of the national parliament could find its rightful place. The provisions of Article 88-7 of the Constitution should therefore be revitalised and extended to allow Parliament either to be associated with a governmental initiative or to act on its own initiative to participate in conflict resolution.
This is only a short outline, but the essential point I would like to stress is that this conflict resolution is essentially a political prerogative, and therefore implies the participation of the national parliaments. In a democratic system, the last word cannot be left to a dialogue of judges.
* 649 Cf. B. Mathieu, Le droit contre la démocratie ? Lextenso 2017.
* 650 BverfG 29 avril 2021, 2 BvR 1651/15, 2BvR 2006/15.
* 651 15 octobre 2021, n° 2021-940 QPC.
* 652 CE 21 avril 2021, n° 393099.