In its 1993 Maastricht decision, the German Constitutional Court ruled that national authorities are not bound to respect and apply Community law to the extent that it exceeds the outer boundaries of Germany’s transfer of sovereignty to the E.U. The Court also ruled that no transfer of sovereignty is valid to the extent that it results in a violation of the fundamental individual rights guaranteed in the German Constitution. Nevertheless, the Court’s latest ruling on this subject indicates a willingness to rely on the European Court of Justice (ECJ) for the vindication of those fundamental rights.
A willingness to rely on the ECJ shows just how tenuous the E.U. is—that is, given the still-disproportionate competencies enjoyed by the state governments. Theoretically, the German Court could simply disallow a disadvantageous ruling of the ECJ with respect to Germany. For its part, the ECJ undoubtedly views its rulings as binding on the E.U.’s state governments. The nexus of these two “understandings” is a recipe for dissolution. Being skeptical that the E.U. institutions are too far from the people and mischaracterizing the E.U. as an international organization, most of the state leaders are apt to resist being subject to an averse ECJ ruling, and their state courts are likely to comply. Such leaders misconstrue both federalism and what the E.U. has already become: a political union on the empire-level.
In terms of federalism, traditionally the empire-level federal body represented kings rather than their respective subjects. In other words, the federal council was “two degrees of separation” from “the people.” The E.U., like the U.S., is of modern federalism rather than the traditional “confederalism.” Specifically, the E.U. retains the traditional arrangement through the European Council and the Council of the E.U. while adding a body having “one degree of separation” from the people through federal representatives of the people. This body is the European Parliament, which is directly elected by citizens of the E.U. irrespective of their respective states.
Viewing the E.U. as an NGO or international forum is at odds with what the E.U. has become even by 2011: modern federal government. The recipe for conflict lies not only in differential interests (state leaders favoring the state level), but also in conceptualizations being at odds with how E.U. officials understand the European Union and characterize its multi-level governance. State leaders refusing to fly the E.U. flag on Europe Day is merely a symptom of the epistemological tension centered on the problematic ontology of the E.U. itself, which undercuts the European project (i.e., ever closer union).
Lest it be concluded that power-aggrandizement on the part of state officials is the only threat to the viability of the E.U., Europeans should also be on the look-out for E.U. arrangements oriented to consolidation at the expense even of modern federalism.
For example, there is a conflict of interest in having the ECJ be the decider of last resort on disputes between the E.U. and a member state because the ECJ is on the E.U. level. According to Bermann and Nicolaidis, “Systems which more or less readily accept the notion of implied federal legislative pre-emption—treating such pre-emption as basically a question of statutory interpretation—almost invariably vest federal courts with the power to determine whether there is federal legislative pre-emption or not. The situation in the EU appears to be evolving in much the same general direction. Thus, even if the Community’s Treaty-based legislative authority on a certain subject is concurrent only, this will not in itself prevent the EU legislature from legislating pre-emptively on that subject… . The Community’s internal market harmonization is widely considered to be pre-emptive.” In other words, there is a conflict of interest in having federal courts deciding whether the federal level preempts state law legislatively.
Cases pitting the E.U. against a state could be adjudicated by a special court consisting both of ECJ and sitting state constitutional court justices. This solution would remove the conflict of interest as well as mitigate the perceived distance between the EU and state institutions. Ironically, safeguarding state competencies can keep the E.U. from not only consolidating at the E.U. level, but also dissolving from state officials fed-up from the stranglehold. Modern federalism requires a balance of power forestalling both consolidation and dissolution. Both power and institutional arrangements present challenges to the viability of the European Union from this standpoint.
Cases pitting the E.U. against a state could be adjudicated by a special court consisting both of ECJ and sitting state constitutional court justices. This solution would remove the conflict of interest as well as mitigate the perceived distance between the EU and state institutions. Ironically, safeguarding state competencies can keep the E.U. from not only consolidating at the E.U. level, but also dissolving from state officials fed-up from the stranglehold. Modern federalism requires a balance of power forestalling both consolidation and dissolution. Both power and institutional arrangements present challenges to the viability of the European Union from this standpoint.
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Sources:
Judgment of 22 October 1986, in Application of Wunsche Handelsgeselischaft (Solange 11), Case 2 BvR 197/83, 73 B. Verf. GE 339, (1987) 1 3 CMLR 225 (Ger. Const’l Ct.).
George A. Bermann and Kalypso Nicolaidis, Basic Principles for the Allocation of Competence in the United States and the European Union, pp. 483-504 in Nicolaidis, Kalypso, and Robert Howse, eds., 2001. The Federal Vision: Legitimacy and Levels of Governance in the United States and the European Union (Oxford: Oxford University Press, 2001), pp. 494-95.
