Joint EJTN-AEAJ Training on Conflicts of Norms /Multi-level Protection in the Application of Fundamental Rights Presentation of the Summary of National Reports

18-19 March 2021 ONLINE WEBINAR Prof. Danutė JOČIENĖ Questions submitted to the Participants (of the previous Trainings):

• 1. What is the general relation between EU-law, the European Convention on Human Rights and National Constitutional Law under the legal system of the respective Member State? Does one overrule the other or are they on the same level?

• 2. In case the national prevails EU-law, does this apply to all provisions of the National Constitution or only to a limited extend? Is it true also for fundamental rights?

• 3. What is the national constitutional understanding of the principle of precedence of EU-law?

• 4. How does art. 53 of the Fundamental Rights Charter affect the relation between EU-law, e.g. fundamental rights, and rights under the national Constitution? Could you, please, provide the legal standing and (or) particular cases of national Constitutional Court concerning the relationship between EU-law, the European Convention on Human Rights and the national Constitution/national Constitutional Law? First question - Countries [very conditionally] were divided in to 4 groups/(Relying on Information provided in National Reports):

- There are countries expressly recognizing the primacy or precedence of EU-law over domestic law including the national Constitutional law (Austria, , Estonia, etc.); - In other countries, the primacy or precedence of EU law over domestic law (including the Constitution) has also been (even to some extend) acknowledged or regarded as the main constitutional principle (so-called harmonious interpretation of the and EU law) (Greece, Italy, Germany, Romania, Croatia, etc.); - In 4 other countries – France, Lithuania, Hungary, Poland (all Member States of the EU) – the principle of the supremacy of national Constitutions has been prevailing (BUT the legal positions of [some] Constitutional Courts can be different); - Some other EU Member States (Portugal, Latvia). Also, in some Trainings NON EU Member States were participating e.g., Albania, North Macedonia. Example from the FIRST Group of countries:

• AUSTRIA:

• The primacy/precedence of EU law over domestic law is acknowledged also in relation to national Constitutional law.

In general, the primacy of EU law applies to all provisions of the national constitution including fundamental rights.

If domestic constitutional law is in contradiction with EU law, every domestic body has to refrain from applying the domestic norm and should apply a clear and self-executing EU norm. Example from the FIRST Group of countries:

SLOVENIA:

The Constitution of Slovenia does not regulate in more detail the hierarchical position of the EU law, the ECHR and the Slovene Constitution.

• BUT - Art. 3a of the Constitution - legal acts and decisions adopted within the international organisations (including the EU) shall be applied under the legal regime of these organisations; therefore, all State authorities, including the Constitutional Court, must apply EU law when exercising their competences in accordance with the legal regulation of that organization.

• Slovenia has adopted the principle of direct applicability of binding international agreements in the Article 8 of the Constitution, which means that inter alia the European Convention of Human Rights is directly applicable.

The EU law fundamental principles such as the primacy of EU law/the principle of sincere cooperation, including the principle of consistent interpretation (of national laws with the EU law) as national constitutional principles, are also binding on the Constitutional Court. Example from the SECOND Group of countries/GREECE: • When there is a conflict between a national provision and a provision of EU law, the precedence of EU law is clearly acknowledged. • When there is a conflict between the Greek Constitution and EU law, the answer is not so clear.

Art. 28 of the Greek Constitution “the generally recognised rules of international law, as well as international conventions [ratified by statute] shall be an integral part of domestic Greek law and shall prevail over any contrary provision of the law”. This Article inter alia “[…] constitutes the foundation for the participation of the State in the European integration process”.

Greek Courts have openly dealt with the matter of the conflict of the Constitution with EU law. GREECE:

• The Council of State has inferred from Art. 28 of the Constitution an “obligation of harmonisation of Constitutional provisions with the rules of Community law” [CoS (GC) 3470/2011).

• This holding suggests that EU law is, basically, at the same level as the National Constitutional Law. Predominant view - the need of harmonization of the Constitutional provisions to those of EU law – which means that the Constitution (including provisions on fundamental rights) must be interpreted and applied exclusively in a manner compatible with EU law.

• IN CASES OF a clear contradiction between a Constitutional provision and EU law, although there is no direct provision in the Greek Constitution regarding such conflict, it would be reasonable to accept that EU law overrules the national Constitution, unless it violates the core of it. Example from the SECOND Group of countries/GERMANY:

• The question of the hierarchy between EU law and National Constitutional Law plays more a

theoretical role then a practical one as in practice [all] German courts and authorities respect the principle of precedence of EU-law.

• This means: Sovereign acts of the EU and acts of German public authority, determined by EU-law, are not allowed to be reviewed in light of the constitutional law or the German fundamental rights contained in the German Basic Law or in any other national law. If there is a conflict between national law and EU law, the national regulation has to be set aside. GERMANY/three exceptions:

• There are three exceptional cases, where the FCC refuses to accept the concept of an unrestricted primacy of EU law:

• - if the EU does not any longer ensure the effective protection of fundamental rights: Solange I and II doctrine: In its “Solange II” decision (2 BvR 197/83) the FCC explained:

• “As long as the European Communities [...] generally ensure effective protection of fundamental rights as against the sovereign powers of the Communities in a manner and degree which is to be regarded as substantially similar to the protection of fundamental rights required unconditionally by the Basic Law, [...] the FCC will no longer exercise its jurisdiction to decide on the applicability of secondary Community legislation [...]; the FCC will also no longer review such legislation by the standard of fundamental rights contained in the Basic Law [...]”.

• (Federal Constitutional Court, case 2 BvL 52/71, order of 29 May 1974 - Solange I; Federal Constitutional Court, case 2 BvR 197/83, order of 22 October 1986 - Solange II; judgment of 2 March 2010 - Data Retention, etc.) GERMANY/Ultra vires exception:

Ultra vires review (it should be "sufficiently qualified" breach of competence):

• In several decisions The FCC held itself competent to review whether the EU acts had been in line within the limits of transferred powers. Acts of EU institutions that transgress the limits of sovereign rights accorded to the EU through the Treaties could be declared NOT binding in the German legal system.

• (See, “Maastricht” (2 BvR 2134, 2159/92) and “Honeywell” (2 BvR 2661/06, order of 6 July 2010) decisions of the FCC; see also Decision of FCC of 5 May 2020 (2BvR 1651/15; 859/15, etc. - Ultra vires concerning acts of the European Central Bank). GERMANY

- Identity review:

• The identity review conducted by the FCC in its “European Arrest Warrant II” (2 BvR 2735/14) decision targets to safeguard the constitutional identity. Precedence of EU-law only applies insofar as the German Basic Law (Constitution) and the Act of Assent permit or provide for the transfer of sovereign rights. Czech Republic (some inspirations taken from the FCC of Germany):

• The relationship between EU law and national constitutional law is not directly stipulated in the statute or constitutional law of the Czech Republic. • This is a complex issue, but normally EU law prevails over national constitutional law. • In the first decision of the Constitutional Court dealing with EU law and interpretation of the art. 10 and art. 10a of the Constitution (“case Sugar Quota Regulation III“, Pl. ÚS 50/04 ) it decided that • it is possible to deduct the acceptance of the principle of precedence (but not a doctrine of absolute precedence over all constitutional provisions); fundamental rights remain the priority for the CC. Czech Republic:

• In 2013, the CC summarized its previous case-law emphasizing that constitutional courts maintain their role of supreme guardians of constitutionality even in the realms of the EU and against potential excesses on the side of EU bodies (decision Pl. ÚS 5/12, following the CJEU’s judgment in C- 399/09 Landtová (“ultra vires”). • 2 aspect - the protection of fundamental rights within the EU cannot give rise to the assumption that this standard is lower than the protection accorded in the Czech Republic.

Another exception - the application of EU law may ALSO not interfere with fundamental principles of the State sovereignty of the Czech Republic and with the principle of the material rule of law. Examples from the THIRD group/LITHUANIA:

• Article 7 part 1 of the Constitution of the Republic of Lithuania expressly states: “Any law or other act that contradicts the Constitution shall be invalid” (The constitution-centric concept - no law or other legal act, including international treaties of the Republic of Lithuania, may be in conflict with the Constitution).

• The CC in its Rulings of 14-03-2006 had clearly acknowledged the priority of the application of legal acts in the cases where the provisions of the European Union arising out of the founding EU Treaties compete with the legal regulation established in Lithuanian national legal acts (regardless of what their legal force is), save the Constitution itself.

• BUT - the EU law, as well as the ECHR are also recognized as a source of construction of the Lithuanian law (Ruling of 9 September 2014, Decision to request for a preliminary Ruling from the CJEU of 20 December 2017, etc.). Examples from the THIRD group/LITHUANIA:

• AND ALSO:

Pacta sunt servanda principle – is the constitutional principle; therefore, the principle of supremacy of the Constitution (Art. 7) should be interpreted in line with all Lithuania’s international obligations, including those stemming from its membership in the EU and NATO.

Moreover, the membership in the European Union and NATO has also been regarded as

the geopolitical orientation of the Lithuanian State which is a constitutional value (Ruling

of 07/07/2011, 11/01/2019). Examples from the THIRD group/POLAND:

• Section 3 of Article 91 directly refers to the relation between Polish national law and the EU law.

• The Constitution provides generally for precedence (priority) of the laws established by the international organization (to which the Republic of Poland became a member) over Polish national laws.

• BUT Article 8 - The Constitution shall be the supreme law of the Republic of Poland.

• POSSIBLE Conclusion: it is generally accepted among Polish judiciary (including the Constitutional Tribunal as well as among the vast majority of Polish legal doctrine) that the EU law takes precedence over Polish ordinary statutes and other subordinated laws, but not over the Constitution. • (Another opinion - that entire Polish Constitution is out of the EU law precedence (Statement by Judge Dr hab. Tomasz Stawecki). Examples from the THIRD group/HUNGARY:

The Hungarian Constitution is silent about the relationship between EU law and national constitutional law. Article „Q” of the Constitution: (2) Hungary shall ensure that Hungarian law is in conformity with international law in order to comply with its obligations under international law.

The Hungarian Constitutional Court (HCC) considers promulgated or transposed primary and secondary EU law as a part of domestic law, but refrains from examining the relationship between EU law and the Constitution.

In the cases of 23/2016, 9/2018 the CC ruled out that the protection of constitutional (self-) identity of Hungary shall remain the duty of the CC as long as Hungary is a sovereign State; such constitutional identity cannot be waived by way of an international treaty (also fundamental rights-reservation review and ultra vires review).

Possible Conclusion - EU law prevails over national legislation BUT NOT over the Constitution. Fourth Group/Latvia:

Latvia’s legal system is an open legal system, since provisions of international law that are binding upon Latvia and principles of international law are applied directly.

In the hierarchy of legal norms of Latvia, norms of international law that are of the same legal level take priority over national legal norms of the same level. Section 13 of the law “On International Treaties of the Republic of Latvia” provides:

“If an international treaty ratified by the Saeima contains different provisions than legal acts of the Republic of Latvia, the provisions of the international treaty shall apply.” BUT Satversme (the Latvian Constitution), as the foundation of the national legal system, prevails over international agreements. The Constitutional Court has also the jurisdiction to review conformity of international agreements. The Constitutional Court applies the Satversme in accordance with the case-law of the ECHR, BUT, ALSO, in some matters related to fundamental rights, the Constitutional Court has elaborated its own understanding of the content and scope of the relevant articles of the Satversme. Question No. 3. What is the national understanding of the principle of precedence of EU-law? GREECE:

• In two judgments of the CoS (1992/2016, 1993/2016) concerning requests for reopening of appeal proceedings before the CoS, following a judgment of the ECtHR (30.4.2015, Kapetanios and others v. Greece), the CoS established seven conditions for granting such requests.

• The third condition reads as follows: “[…] compliance with the judgment of the European Court of Human Rights should not amount to a breach of another obligation of the Hellenic Republic under international law, most notably under EU law, which is considered to be of greater importance than the obligation to comply with the relevant judgment of the ECtHR [cf. CJEU (GC) 26.2.2013 C-617/10, Åkerberg Fransson]”.

• This holding leaves adequate room for respect of the principles of primacy and effectiveness of EU law in cases where there is some kind of incompatibility between the ECHR and the law of the EU. Question No. 3. What is the national understanding of the principle of precedence of EU-law? ITALY:

• The fundamental rights that are recognized by the Italian Constitution and by the EU Charter of Fundamental Rights are similar; therefore, there is not, from the practical point of view, the danger of making a difference between European and Italian law in recognizing the fundamental rights.

• Specific examples - a) Ruling of the Italian Constitutional Court n. 5 of the 18th January 2018. The Italian law obliges children to be vaccinated against some illnesses such as polio, tetanus, hepatitis, measles and has conditioned the enrolment in school to the proof of having had the vaccine. The CC – such obligation of vaccination doesn't infringe both the Italian Constitution and the European Charter of the Fundamental Rights. Question No. 4 - how does art. 53 of the Fundamental Rights Charter affect the relation between EU-law, e.g. fundamental rights, and rights under the national constitution?

• SLOVENIA:

With Lisbon, the Charter brings a normative link between Strasbourg and Luxembourg in Articles 52(3) and 53, expressly giving the Charter rights corresponding to ECHR rights the same meaning and scope, and defining the ECHR as the minimum standard of protection. When the Constitution guarantees better protection of a human right than a treaty, the Constitution naturally prevails - the Constitution thus introduces the principle of the maximum protection of human rights;

The Charter promotes the established principle of the maximum protection of human rights, the same principle is stated in the Constitution of Slovenia. Therefore, the national courts must be taken into account under which act the better protection of human rights is granted. Question No. 4 - How does art. 53 of the FRC affect the relation between EU-law, e.g. fundamental rights, and rights under the national constitution?

ROMANIA:

Article 53 of the FRC reserves a secondary role for the national courts. Romania can invoke its constitutional interpretations of fundamental rights and apply its higher national standards of protection, BUT only in areas of law where the actions of the Member States are not fully dictated by EU law.

Even if Article 53 of the Charter does not contain the supremacy clause, the precedence of EU law cannot be called into question, given the Melloni case pronounced by Court of Justice of the EU (CJEU).

The CJEU concluded that although Art. 53 leaves the national courts free to apply national standards for the protection of fundamental rights, this discretion is subject to the condition that the supremacy, unity and efficiency of EU law are not affected. [Some] Conclusions:

The fundamental principles of EU law - primacy and a direct effect - has been clearly [or to some extend] acknowledged in the case law of the majority of the CC of the EU MStates.

Therefore, it remains uncontested that the supremacy, a direct effect and, moreover, the general effectiveness of EU Law are fundamentals to the unity and specific character of the European legal order, where the constitutional traditions of the Member States play an important role.

The case law of [some] Constitutional Courts also demonstrates that the application of EU law can indeed co-exist with the principle of supremacy of national constitutions; in other cases, a harmonious or “friendly-interpretation” approach can be used by the CC; [Some] Conclusions:

• For some CC, the primacy and a direct effect of EU law cannot in any way infringe the constitutional identity of the State, as well as fundamental principles of the constitutional order (i.e. threaten the constitutional foundations of the State’s system) or violate fundamental human rights, especially in cases • where the broader protection of human rights has been offered by national Constitutions. • In such cases, Constitutional Courts can show some restraints in application of EU law (and, also, this can happened in, e.g., cases of ultra vires actions by the EU institutions). Thank you very much for your attention