Thoughts on a recent opinion by Advocate General Bobek

On 4 March 2021, in the Joined Cases C-811/19 and C-840/19, the opinion of Advocate General Michal Bobek was delivered to the CJEU, which was already mentioned by one of the authors of the Constitutional Discourse, Márton Sulyok. According to Sulyok, if the CJEU accepts the Advocate General’s position, it could put the entire European system of constitutional justice at risk, at least as we know it today. It is a question of whether the CJEU recognizes these potential dangers. The question arises why the CJEU’s decision in these cases could be a milestone in this process if the Court accepts the opinion of the Advocate General? I will try elaborate on this a little below.

The main proceeding is a case concerning the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice, Romania) and the Constitutional Court of Romania. The outcome of the case might affect the financial interests of the European Union, therefore initiating the preliminary ruling procedure was necessary. One of the questions that the CJEU must answer is whether the primacy of European Union law must be interpreted as a principle permitting a national court to disapply a decision of the constitutional court. According to the AG’s opinion, under a strict set of criteria, the principle of primacy of the EU law shall be interpreted as allowing a national court to disapply a decision of the national constitutional court, which is binding under national law, if the referring court finds it necessary in order to comply with the obligations deriving from directly effective provisions of EU law. To see the whole picture, the details of the case affect upon a number of financial and corruption issues, however addressing these is not intended in the context of this post.

Apart from examining the details of the case in the main proceedings, one of the main ideas of the Advocate General’s opinion is the financial interests of the European Union and the principle of primacy as well as the decisions of the constitutional courts of the Member States. According to the Advocate General, “in the context of the present case, the third question in Cases C‑811/19 and C‑840/19 should be answered in the affirmative: the principle of primacy must be interpreted as allowing a national court to disapply a decision of a national constitutional court, which is binding under national law, if the referring court finds it necessary in order to comply with the obligations deriving from directly effective provisions of EU law.”

It is true that the Advocate General’s reasoning has been delivered in a special context: in order to protect the financial interests of the Union. Based on the reasoning, “the elements to be taken into account when assessing the compatibility of national provisions with the requirements of Article 325(1) TFEU include: first, the normative and systematic evaluation of content of the rules at issue; second, their purpose as well as the national context; third, their reasonably perceivable or expected practical consequences, stemming from the interpretation or the application practice of such rules (thus independent from any statistical estimation of the number of cases actually or potentially affected); fourth, the fundamental rights and legality forming part of the internal balance in the interpretation of the material requirements imposed by Article 325(1) TFEU. However, any national concerns invoked in this regard must reflect a reasonable and genuine concern for a higher rights protection. Moreover, their potential impact on the interests protected by Article 325(1) TFEU must be proportionate.”

The protection of the EU’s financial interests is an evident, necessary need, regarding which, of course, the CJEU, as guardian of the Treaties, also has competence. However, the question arises: is it possible for the CJEU to rule that an ordinary national court may set aside the application of a decision of a national constitutional court? In addition to the serious problem of powers, does the necessity-proportionality test allow this? Regardless of the result to be achieved, unless the end justifies the means. At the same time, it is hard not to think about what happened on 5 May 2020, when a Constitutional Court of a Member State declared a decision of the CJEU inapplicable, so the answer cannot be left to the supranational court either. This idea, however, leads away on a long tangent, so instead, let’s take a closer look at the part of the Advocate General’s opinion quoted.

The Advocate General’s position essentially presupposes a two-dimensional space: European Union law and national law in which the former precedes the latter. The approach would not be a problem for a federal legal order, but the supranational nature presupposes a much more complex system. A legal order in which only the EU institutions, including the CJEU, can act within the scope of the powers delegated by the Member States and in which we must talk about the coexistence of the EU legal order and the constitutional systems of the Member States. In this system, the provisions of national law form only one layer, which is covered by the principle of the primacy of EU law under the provisions of the Treaties. This is beyond debate.

But does it follow from the treaties that the Member States have delegated to the CJEU the power to declare a decision of a constitutional court of a Member State inapplicable? What is more, in a legal order one of the main values of which is the rule of law, is it possible to imagine a scenario in which the provision of a supranational institution with problematic democratic legitimacy would preclude the decision of an organ with strong democratic legitimacy whose function is to ensure the requirement of legal certainty as part of the rule of law?

After all, by detaching the Advocate General’s position from the umbrella of financial circumstances, this is one of the practical consequences. The Advocate General’s position does not distinguish between the constitutional rules of the Member States and national law, but treats them as a single factor. It does not treat the constitutional courts of the Member States as a fundamental constitutional institution designed to ensure, inter alia, the rule of law, it simply places them in the category of the superior courts of the Member States and as a quasi-super-court places itself above them. But is it necessary to open Pandora’s box? Is this the right way?

The national constitutions of the Member States represent a value that embodies the uniqueness of the Member States, the diversity in unity. Moreover, European integration is in itself a special formation that expresses the unity and future of these different nations, the so-called the unity in diversity. The two levels of the legal system (Member State and EU) must coexist while respecting both the sovereignty of the Member States and the fundamental values of the Union. There are unquestionable values and legal principles in Europe that are beyond doubt, such as the protection of sovereignty and human dignity. However, there are a number of challenges facing modern European legal system(s) that require dialogue to be resolved.

In the EU system of multilevel constitutionalism, a long-standing debate on integration surrounds the conflict between EU legal order and the constitutions of the Member States. However, the issue concerns not only the relationship between the sources of law, but also the relationship between the authentic interpreters of these sources. Namely, the relationship between the CJEU and the national constitutional courts, which is not a system of relations that could be established in an exact way on the basis of current provisions of the Founding Treaties.

It is a system of relations in which the CJEU itself has extensive case law and the constitutional courts of the Member States have also established their positions.

Milestones in the relevant case law of the CJEU are Van Gend en Loos (C-26/62) and Costa vs. ENEL (C-6/64), in which the CJEU set out the nature of the new legal order of European Community law and the obligation to apply it by the courts of the Member States and setting aside the national law if it is contrary with the EU legal order. In Internationale Handelsgesselschaft (C-11/70), the CJEU has already articulated the primacy of European Community law over the constitutions of its Member States, which was confirmed in Simmenthal (C-106/77) by stating that ordinary courts in the Member States cannot wait to the legislator or the Constitutional Court in order to resolve the conflict but must do so themselves.

The development of the case law of the CJEU therefore runs a well-defined curve and purpose in this area, which is to ensure the integrity of EU law. However, the question is whether the CJEU takes over the position of Advocate General Bobek, and if yes, what is the purpose behind this decision? Securing the European Union’s financial interests is not a surprising goal, as the EU was born primarily from and for economic purposes. The question, however, is whether it is worth giving up the idea of unity in diversity and create a union that is indifferent to the nature of the Member States, especially at a price that requires a system of rules that can no longer be read from the Founding Treaties.

In my view, the case-laws of the CJEU and national constitutional courts must coexist on an almost equal footing and not in hierarchy with each other. Constitutional justice is a fundamental part of the constitutional systems of the Member States (so of the EU as well), and at the same time it is designed to ensure the requirement of legal certainty, which is a key element of the rule of law as a fundamental value of the European Union. Therefore, it is necessary to establish a system of relations with the CJEU through the instrument of solidarity and dialogue, involving the national constitutional courts, which presupposes the principles of collegiality, instead of the potential hierarchical relationship which seems to be outlined on the basis of the Advocate General’s opinion.

Perhaps it can be seen from my critical approach that I do not agree with the Advocate General’s position. However, this does not mean that I disagree with the need to deepen the integration process or to protect the financial interests of EU. On the contrary, these are goals that shall be pursued in the interest of stability, as the main guiding principle. Stability cannot be achieved by creepingly expanding the powers of the EU institutions ensured by the Treaties. Moreover, stability cannot be achieved either if we assume quasi-competing powers between the CJEU and the constitutional courts of the Member States. In this system of relations, we need to realize the delicate balance that keeps the integration process in the right direction, which is in line with the constitutional identity of the Member States. However, this does not mean that asking questions is not necessary. It only means that the questions shall be answered together. The answer is not that only can be left standing at the end. This is how duels are concluded.

Norbert TRIBL is an assistant research fellow at the University of Szeged (Hungary), Institute of Public Law as well as a consultant at the Constitutional Court of Hungary. Since 2020, he has been the editor of the Constitutional Discourse Blog.