Tag Archives: European Union

Christina Eckes: One Step Closer: EU Accession to the ECHR

ChristinaThe final version of the draft accession agreement was concluded on 5 April 2013. It will allow the EU to become a contracting party to the European Convention on Human Rights (ECHR), arguably on more than equal footing with the other Contracting Parties, which are all States.

The EU’s accession to the ECHR is a long and on-going journey. Indeed, accession has been subject of political discussion since the 1970s. The early debate culminated in 1994 with the Court of Justice terminating all accession attempts under the old Treaty framework. However, the situation changed fundamentally on 1 December 2009 with the entry into force of the Lisbon Treaty. Accession has not only become possible, it has become an obligation. The conclusion of the draft accession agreement is an important step, but it is by no means the last. Next, the Court of Justice of the European Union will give its opinion on the compatibility of the accession agreement with EU law.

The EU’s Privileges Pre- and Post-Accession

Even before the EU’s accession, the ECtHR deals implicitly or explicitly with EU law more often than one would expect. To give the gist of the relevant case-law of the ECtHR: Member States retain responsibility for their acts, including those adopted within the context of EU law, but acts adopted by the EU institutions proper fall outside of the ratione personae of the Convention. For instance, as things stand at present Member States remain responsible for primary EU law as the consequences of a treaty, in the adoption of which they have been involved. It is, further, possible to bring an application against a (particular) Member State for implementing EU law, irrespective of whether that state has had any margin of discretion in implementing EU law. If the state has had no margin of discretion, a rebuttable presumption of equivalent protection applies which leads the ECtHR to exercise full judicial review only if the protection under EU law has proved in the case before it to be ‘manifestly deficient’ in the individual case (the Bosphorus presumption). The presumption of equivalent protection in Bosphorus has placed the EU for many years in a privileged position as compared to its Member States, even without being a party to the Convention. The ECtHR does not review the compliance with the Convention of EU Member States’ acts implementing EU law in the ordinary case. The accession agreement recognises the EU’s special position and in a different way codifies and institutionalises it, but it takes away the Bosphorus privilege.

A central concern in the negotiation of the draft agreement was the Court of Justice’s judicial autonomy and indeed even monopoly to interpret EU law.  The core threat of EU accession for the Court’s autonomy to interpret EU law emanates from two situations: first, the ECtHR might determine who the right respondent is in any given case; and second, the ECtHR might attribute responsibility to and apportion it between the EU and its Member States. In both events, the ECtHR would simply not be able fully to disregard the power division between the EU and its Member States – both in law and in practice. The complex and dynamic task division between the EU and its Member States could lead the ECtHR to offer an interpretation of substantive EU law binding on the Court of Justice. The EU is a compound legal order consisting of numerous international actors and the largest share of EU law is implemented or applied by national authorities. This means that it requires national support and involvement in order to become effective. As a consequence, if the ECtHR’s interpretation extends to who is responsible the potential challenge to the judicial monopoly, and ultimately the authority, of the Court of Justice is of a different quality than any potential challenge presented by the judicial authority of a national court. Furthermore, the authority of the Court of Justice depends much on the support of national courts. This becomes particularly apparent in the preliminary ruling procedure (Article 267 TFEU), under which most of the fundamental judicial decisions were taken that integrated the EU legal order. Ultimately, this discussion on the EU’s autonomy boils down to the question of how integrated and irreversibly interlocked the EU and national legal orders and judicial systems really are in the face of an external challenge, such as confirmation by a well-respected external judicial authority that the EU breaches human rights. Will such a finding of the ECtHR flare up resistance towards EU law by national courts or public opinion?

The co-respondent mechanism with the prior involvement procedure is aimed to protect the autonomy of the EU legal order and of the Court of Justice in particular. It stipulates that: ‘[w]here an application is directed against one or more member States of the European Union, the European Union may become a co-respondent to the proceedings in respect of an alleged violation notified by the Court if it appears that such allegation calls into question the compatibility with the Convention rights at issue of a provision of European Union law, including decisions taken under the TEU and under the TFEU, notably where that violation could have been avoided only by disregarding an obligation under European Union law.’ The Union has further made a declaration that it ‘will request to become a co-respondent to the proceedings’ if these requirements are met. Additionally, if the Court of Justice has not previously ruled on the matter, the agreement is that the ECtHR should request the Luxembourg Court to do so before giving its own ruling. The co-respondent mechanism permits the ECtHR to refrain from determining who the correct respondent is or how responsibility should be apportioned. Indeed, the draft agreement  declares joint responsibility of the respondent and co-respondent to be the common case: ‘If the violation in respect of which a High Contracting Party is a co-respondent to the proceedings is established, the respondent and the co-respondent shall be jointly responsible for that violation, unless the Court, on the basis of the reasons given by the respondent and the co-respondent, and having sought the views of the applicant, decides that only one of them be held responsible.’ This will for most cases unburden the Strasbourg Court from the task of assessing the distribution of competences between the EU and its Member States. However, it does not rule out the possibility that the ECtHR chooses to apportion responsibility in the individual case. Furthermore, while no High Contracting Party may be compelled to become a co-respondent, the Strasbourg Court may terminate the participation of the co-respondent. Both actions of the ECtHR imply a prior decision on how the responsibility should be apportioned or attributed. Hence, the co-respondent mechanism tries to strike a balance between not limiting the formal competences of the ECtHR but determining how these competences are usually exercised in practice. In any event, in view of the rather cautious approach of the Strasbourg Court in the past it can be expected that it will not meddle with the complex and dynamic division of powers between the EU and its Member States where this is not judged absolutely necessary.

The special position accorded to the Court of Justice should be seen both as accommodating the Court’s concern with its judicial autonomy and acknowledging the particularities of the EU legal order and the judicial power in the EU.  The classic division of tasks between the legislating EU and implementing Member State can for instance result in a situation where EU law is implicitly or explicitly challenged in Strasbourg in the context of an alleged violation through a national act of implementation before any Court at the EU level has been consulted. This also justifies involving a court at the EU level before ruling on the compliance of EU law with the Convention. It will certainly force the Court of Justice to deliver in the individual case, rather than being able to hide behind a general presumption of equivalent protection. After receiving the Court of Justice’s opinion, the Strasbourg Court will have to scrutinise and rule whether the Convention has been breached. It can only find the specific opinion either correct (offering equivalent protection; no violation) or incorrect (misinterpreting the Convention; violation). It cannot hide behind general considerations of the human rights protection in the EU legal order. The times of Bosphorus are over.

The (Un-)Likeliness of an Open Conflict

After accession, the ECtHR’s decisions will be formally binding on the Union as a matter of international law. This could in an extreme case result in a finding of non-compliance if the Court of Justice rejects an interpretation of the ECtHR of internal matters of EU law. Whatever status the Court of Justice will give rulings of the ECtHR after accession, it is difficult to see in practice how the Court of Justice could in a ‘Union of law’ follow an argument or give a ruling that openly clashes with the protection of human rights given by the ECtHR. This would be problematic both before and after accession, and irrespective of whether the EU is a party to the case. At the same time, the justification deficit would be much lower if the Court does not accept the ECtHR’s position on competence matters of internal EU law that has no substantive impact on human rights protection. We may conclude that the risk of a potential conflicting interpretation of the ECHR and the Charter would not increase through accession. With the co-respondent mechanism with the prior involvement procedure it will be lower than at present. Pre-accession it is conceivable that a national court delivers a decision based on a preliminary ruling of the Court of Justice and that this decision (after national remedies have been exhausted) is taken to the ECtHR which might decide that the country has violated the ECHR. The ECtHR’s ruling on the case could entail the conclusion that the preliminary ruling of the Court of Justice conflicts with the ECHR, without further involvement of the EU institutions.

The EU as an International Actor with Internal Tensions

Accession will advance the Union’s ambitions as an international actor separate from its Member States. The EU will become a ‘state-like´ party to the Convention in the sense that it will be ‘on equal footing with the other Contracting Parties’, which are all states. At the same time, the EU and, in particular its Court of Justice have been given an exceptional position within the Convention system. From the perspective of the EU, this primus inter pares position appears to be the best solution: having all the duties of states, but more rights and influence – both during the negotiations and before the Strasbourg Court. This special position is a recognition of the EU’s particularity and success as an integration organisation. At the same time, the discussion’s focus on the EU’s and the Court of Justice’s autonomy raises doubts about the EU’s maturity as an integration organisation. Accession will bring the test of whether the EU has reached the necessary maturity. Is it sufficiently integrated to join the ECHR on an equal footing as the other Contracting Parties, or will it become the victim of its own success because despite all integration it cannot endure the internal tensions that might result from joining an external human rights regime?

In the light of the Court of Justice’s far-reaching interpretation of the duty of cooperation and in the light of the Union’s new role in Strasbourg Member States will be subject to new European law constraints in relation to the ECHR. Furthermore, accession will substantively contribute to the on-going process in which European systems of human rights protection become increasingly interwoven and interlocked. It will allow the Court of Justice and the ECtHR to enter into a formal judicial discourse. Indeed, within the ever increasing scope of EU law, the Court of Justice will take the role of the national courts in international human rights discourse. However, it would be wrong to think that the Court of Justice and the ECtHR are the only two European courts. Both depend on the support of the national judiciary. Resistance towards external human rights constraints has flared up in several EU Member States, including the UK. Accession and the shift of the discourse from national courts to the Court of Justice is unlikely to have a calming effect. Indeed, the question of which public authority – Brussels, Strasbourg or the national capital – may decide the applicable standard will become even more controversial with accession.

An extended discussion of the EU’s accession to the ECHR was published in the Modern Law Review < http://www.modernlawreview.co.uk> in March 2013.

Christina Eckes is Associate Professor at the Amsterdam Centre for European Law and Governance, University of Amsterdam

Suggested citation: C. Eckes, ‘One Step Closer: EU Accession to the ECHR ‘ Const. L. Blog (2nd May 2013) (available at http://ukconstitutionallaw.org).

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De Baere and Eeckhout et al: Europe, the Prime Minister, and the facts – seven questions for David Cameron

Dear Prime Minister,

Much has already been said about your speech on ‘the future of Europe’, delivered on Wednesday 23 January at Bloomberg, and much more remains to be said. As academics in the fields of EU law and international law, we express our hope that the debate on whether or not the UK should remain in the EU will be conducted on the basis of as complete and accurate a set of facts as possible. We would like to ask you a number of questions with that in mind.  They are questions which you have left unanswered, despite the crucial importance of such answers for the debate.

What would “a new settlement in which Britain is at the forefront of collective action on issues like foreign policy and trade” entail? Will you be advocating the repatriation of some of the EU’s trade competences to the Member States, thereby allowing the UK and others to take individual or collective initiatives in that regard? Conversely, will you be arguing in favour of reinforcing the EU’s single voice in external trade, which has enabled it to create a more level playing field in trade negotiations from Washington to Beijing? Would more collective action in the field of foreign policy entail more initiatives such as the military operation in (or above) Libya, which was indeed collective, but mostly outside the framework of the EU? Or would it entail a reinforcement of the European External Action Service, headed by Baroness Ashton? Does the repeated blocking by the UK of collective EU statements in the UN (as reported in The Guardian ) represent the UK being at the forefront of collective action?

Can your proposal to “work together against terrorism and organised crime” be squared with your avowed desire to opt out of a great number of EU measures put in place precisely to combat cross-border crime? The potentially self-defeating effect of such an opt-out has been highlighted a number of times by British former or current officials (see the Financial Times).

What do you mean when you ask the British people not to be “misled by the fallacy that a deep and workable single market requires everything to be harmonised”? Incidentally, you are absolutely right that complete harmonisation is not desirable, which is of course why the Commission abandoned the idea in its 1985 White Paper  on completing the internal market. It is also why the European Court of Justice, which you accuse of having “consistently supported greater centralisation”, has introduced the principle that Member States can keep their own product regulations, which must be recognized by other Member States.

What are the “huge number of expensive peripheral European institutions” and in what way is the Commission getting “ever larger”? Surely the London branch of the Unified Patent Court, for which you fought so hard, cannot be an example of an “expensive peripheral European institution”? And would the amazing expanding Commission be the same that has proposed a 5% cut in staff combined with an increase in weekly working hours and lower salaries in certain areas?

In what way does the EU not have “enough focus on controlling spending” and what “programmes that haven’t worked” do you want to shut down? It is of course perfectly true that the budget is large: 140 billion euro in 2011 to be precise.  Nevertheless, the EU budget represents around 1% of EU-27 GDP whereas Member States’ budgets account for 44% of GDP on average. The average EU citizen in most Member States has to work well into the spring and summer until they have paid their tax contribution, while he or she has to work only four days to cover his or her contribution to the EU budget.

In light of your wish to address ‘the sclerotic, ineffective decision-making that is holding us back’, can we ask whether you are in favour of more majority voting?  That has always been the key to more effective decision-making.  Or is there some other solution of which we are unaware?

In what way is the “more flexible, more adaptable, more open” European Union you advocate different from today’s EU?  The UK, as you rightly point out, is not in the Eurozone, or in Schengen, and is capable of opting out of EU policies in matters of international crime and immigration.  It has not signed the fiscal compact (even if the current government is just as austerity-minded as Germany).  Is the EU not adaptable, if one looks at the numerous Treaty changes there have been?  Is it not open, having expanded so dramatically?

It would not be correct for us to ask you these questions without at least helping out with answering some of yours. Let us start with one: “And I would ask: when the competitiveness of the Single Market is so important, why is there an environment council, a transport council, an education council but not a single market council?” Well indeed why not. The answer, it turns out, is rather simple. There is an internal market council. It was integrated with the industry and research council configurations in June 2002, in what is called the  ‘Competitiveness Council’.

As you accurately put it: “It is time for the British people to have their say.” We hope that they will get the opportunity to do so on the basis of facts.  We hope you may be able to answer our questions, so that everyone – including other member States – develops a better understanding of what kind of EU reform you are advocating.

Yours sincerely,

Anthony Arnull (Birmingham)     Catherine Barnard (Cambridge)

Andrea Biondi (King’s College London)     Hugh Collins (LSE)

William Cornish (Cambridge)     Nicola Countouris (University College London)

Paul Craig (Oxford)     Egle Dagilyte (King’s College London)

Geert De Baere (Leuven)     Piet Eeckhout (University College London)

Pavlos Eleftheriadis (Oxford)     Amandine Garde (Durham)

Markus Gehring (Cambridge)     Alicia Hinarejos (Cambridge)

Angus Johnston (Oxford)     Claire Kilpatrick (European University Institute)

Panos Koutrakos (City University London)    Maria Lee (University College London)

George Letsas (University College London)     Virginia Mantouvalou (University College London)

Cian Murphy (King’s College London)     Ronan McCrea (University College London)

Eva Nanopoulos (Cambridge)     Niamh Nic Shuibhne (Edinburgh)

Federico Ortino (King’s College London)     Robert Schütze (Durham)

Joanne Scott (University College London)     Eleanor Spaventa (Durham)

Anne Thies (Reading)     Alexander Türk (King’s College London)

Lorenzo Zucca (King’s College London)

Suggested citation: G. de Baere and P. Eeckhout et al, ‘Europe, the Prime Minister, and the facts – seven questions for David Cameron’  UK Const. L. Blog (1st March 2013) (available at http://ukconstitutionallaw.org).

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David Erdos: Mustn’t Ask, Mustn’t Tell: Could New EU Data Laws Ban Historical and Legal Research?

david.erdosEven with the advent of Web 2.0, data protection law is still often seen as technical and only narrowly applicable.  Technical abstruseness aside (and data protection’s reputation here is certainly deserved!), this understanding couldn’t be more wrong.  The existing European data protection framework actually has a breath-taking scope.  It applies to anything done electronically with any information about an identified or identifiable person (possibly even the dead).  According to the EU, even innocuous details already in the public domain are protected (perhaps even the title of an author’s book).  Moreover, if the information reveals in any way, for example, race/ethnic origin, political opinions, religious belief, trade union membership, health or criminality, then it is classed as “sensitive” information and subject to even tighter regulation.  A number of European courts have ruled that all colour images are covered by this as they display racial information.  The European data protection framework (Directive 95/46/EC) is not only broad but often onerous.  Barring a specific exception (including a liberal one (Art. 9) which can be invoked for journalism, literature and the arts), there is a presumption that individuals will be informed about the processing of data about them (Arts. 10-11) and given a right to object (Art. 14), that the processing of “sensitive” personal information will be banned (Art. 8.1) and that no personal information will be transferred outside the European Economic Area without “adequate protection” (Art. 25.1).

So the popular perception of data protection is woefully inaccurate – which leads to a radical underestimation of the threat this regime poses to the enjoyment of other fundamental rights and pursuit of legitimate activities.  Nowhere is this more the case than in relation to social and humanities research.  Since the advent of the EU data protection framework, researchers have witnessed dramatic restrictions on their freedom to use “sensitive” data or to resort to covert methodologies.  Coupled with the growth of sometimes intrusive “ethical” review policies, the barriers and burdens placed in the way even of ordinary, innocuous, yet socially beneficial research and on researchers have become considerable.

It might have been hoped that the proposed EU Data Protection Regulation would provide an opportunity to reverse this.   But if the European Parliament’s just published draft report and amendments are anything to go by, the converse is true.  Prepared by Jan Albrecht MEP, the Rapporteur of the Civil Liberties, Justice and Home Affairs Committee (the lead Committee for considering the Regulation), these stringent proposals would effectively outlaw almost all research in law and in contemporary history as well as a great deal of work in sociology and political science.  Now, any processing for historical, statistical or scientific research purposes would be subject to the following:

  • A complete ban on publishing even the most innocuous personal data in identified form unless the individual in question either has themselves put it into the public domain or has freely given, specific, informed and rescindable consent (Amendment 339, p. 201).  This would deny a historical researcher the right to publish information from a newspaper article accurately reporting the public activities of a public official (e.g. Tony Blair’s involvement in the decision to go to war in Iraq).  It would also prohibit the citation and publication of analyses of already published court judgments since these are full of identifying details which the justice system rather than the individuals concerned have put into the public domain.
  • If the details in question reveal any “special” categories of information (see above), then the restrictions would be even greater.  In the absence of freely given, specific, informed and rescindable consent, all such research would be banned unless Member States, on a purely optionally basis, allow their Data Protection Authority to issue permits for this.  These could however only be granted if the information “be anonymized, or if that is not possible for the research purposes, pseudonymised under the highest technical standards, and all necessary measures…taken to prevent re-identification of the data subjects”.  The research must also serve “exceptionally high public interests” and be something that “cannot possibly be carried out otherwise” (Amendment 337, p. 200).  Not even information previously published by the individual in question would be exempt.   Thus, for example, a historian would have no right to report that Emma Nicholson, now a Liberal Democrat Peer, used to be Conservative MP despite this being public knowledge freely available on Wikipedia. (According to the  Information Commissioner’s Office the political affiliation of an MP is “sensitive” personal data (p. 8)).
  • We are also told that in all cases “data enabling the attribution of information to an identified or identifiable data subject” must be “kept separately from the other information” (Amendment 335, p. 199).  This would prevent a researcher from saving a court judgment or a newspaper report on a laptop without having first replaced all personal identifiers (such as “David Cameron” or “Lord Hutton”) with a pseudonymised (as above) code, the key to which would then have to be stored elsewhere.
  • Finally, the clause allowing the European Commission to propose delegated legislation to allow for covert research has simply been deleted (Amendment 341, p. 202).  But, subject to suitable safeguards, such research has often been essential in bringing to light important facts including illegal police practices and discriminatory attitudes on the grounds of sex, ethnicity or race.  People are obviously not going to be willing to give consent to their wrongdoing being researched.

Albrecht is candid about the restrictions on research freedom which are being proposed.  Thus we are told baldy that “[r]esearch purposes should not override the interests of the data subject in not having his or her personal data published” (at p. 201).  If the word “journalistic” were substituted for “research”, then it would be obvious to everyone, including of course the Press, just how onerous this censorship is. Ironically, alongside these harsh restrictions on research, Albrecht proposes broadening the protections set out in Article 80 as regards journalism, literature and arts so as to protect freedom of expression per se (Amendment, 324, p. 193).  This is to ensure that “freedom of expression is protected in general, not just for journalists, artists or writers” (p. 52).

Freedom of expression is defined by reference to the EU Charter which includes freedom to “receive and impart information and ideas without interference” (Art. 11), a right similarly protected in Art. 10 of the European Convention on Human Rights.  In creating and disseminating new knowledge, social and humanities research intrinsically instantiates such freedom of expression.  Moreover, the special concern of research to investigate genuinely important issues whilst upholding the qualities of rigour, culmination and precision ensures that social and humanities research will usually constitute ‘high-value’ publicly interested speech which the European Court of Human Rights has correctly stated should generally be free from legal restriction. As Brian Harrison has also correctly argued “there is no distinction in principle between the journalist and the historian:  the historians simply have more time for research and reflection”.  However, the one type of actor whose freedom of expression is not protected by this proposed revision to Article 80 is researchers (historical or otherwise).  This is because, whilst Article 80 does allow for (balanced) derogations from most of the Regulation, Article 83’s stipulations on historical, statistical and scientific research are excluded from this.  Freedom of expression is turned “on its head”!

It is vital that the draft Data Protection Regulation be amended.  We need to ensure that social and humanities research is unequivocally included within Article 80’s freedom of expression protections.  This should also prompt a wider rethink of the over-regulation of research compared with other, often less socially valuable, activities.  The proposals are still being considered by both the European Parliament and the Council of Ministers.  It is not too late to press for the necessary changes.  All who care about the future vitality of academic inquiry need to wake up to the realities of Data Protection.  Universities and other research organizations need to be forthright and assertive in opposing these unjustified and unworkable proposals.  Everyone acknowledges that, in some contexts, genuinely sensitive personal data needs protection.  But when this balloons into wide, and wild, overreaction we find ourselves able to know less and less about the societies we live in – including, paradoxically, about the nature of privacy and about the effects of Data Protection regulation itself.

A version of this article was originally published in Times Higher Education (“Mustn’t ask, mustn’t tell”, 14 February 2013, p. 30).

David Erdos is principal investigator of the Data Protection and the Open Society project and a research fellow at the Centre for Socio-Legal Studies and Balliol College, University of Oxford.

Suggested citation: D. Erdos, ‘Mustn’t Ask, Mustn’t Tell:  Could New EU Data Laws Ban Historical and Legal Research?’ UK Const. L. Blog (14th February 2013) (available at http://ukconstitutionallaw.org)

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Jo Eric Khushal Murkens and Peter Jones: Salmond and Cameron order a dog’s dinner at the EU café

jo-mur1 peterCountries that are used to referendums on constitutional matters use them sparingly. The UK has no such constitutional requirement, but faces the possibility of having to deal with two such referendums within the spate of a few years. The first referendum could see Scotland break away from the United Kingdom, the second could see the United Kingdom (which by then may or may not include Scotland) break away from the European Union.

The common issue to both Alex Salmond and David Cameron is political sovereignty. They both want more of it; Salmond wants to claim it from the UK, Cameron wants to claim it from the EU. In that narrow sense, they are both nationalists; Salmond a Scottish one, Cameron a British one. Both also want, they claim, to be good European citizens but have to contend with the problem that the European club they want to be members of has rules which conflict with their visions of the idealised club they imagine it should be. And the promotion of this idealised vision to their voters leads them both to political positions which are incoherent.

For the SNP which was, until the advent of devolution in 1999, a minority fringe party, the ‘Independence in Europe’ policy was never subjected to serious examination. It was not much more than a political slogan used in political debate to counter the separatist charge levelled by opponents. The most that was done to develop this policy was to locate sympathetic European luminaries who gave the SNP helpful quotes asserting that upon independence, Scotland would move seamlessly into EU membership. It became an article of SNP faith that Scotland would be warmly welcomed into the happy European family, effectively countering ‘separatist’ accusations. So cemented into SNP ideology is this belief that Nicola Sturgeon, deputy first minister, told the Scottish Parliament’s European and external relations committee in December 2007: ‘It is the clear view of the Scottish National Party and the [Scottish] government that Scotland would automatically be a member of the European Union upon independence.’

The automaticity proposition founders on the rather obvious point that while the people and territory of Scotland may already be in the EU, the Scottish government is not. And the Scottish government being in the EU requires its votes in the European Council and other entitlements to be written into EU treaties which can only be done with the unanimous consent of all other member states.  This remains the case. The SNP, however, refuses to acknowledge this point because it raises the vision of Scotland being outside the EU and having to bang on the door begging to be allowed in out of the cold, bringing the separatist bogey back into play.

The battle against the separatist charge has had to be fought on another front – within the UK. Unionists have alleged that independence will mean that families with members on either side of the border will become fragmented, that they and commercial trade will have to negotiate border controls at Berwick and Gretna Green, that Scotland will lose access to popular BBC shows such as East Enders and Strictly Come Dancing and so on. To counter this, the SNP has devised a new strategy – that while the political union of the UK will come to an end, the social and civil union will continue and prosper. Thus families will be just as united and able to jointly celebrate such things as the Queen’s birthdays and anniversaries as she will still be the titular head of state in an independent Scotland.

Harsh economic realities, however, have forced the extension of this soft unionism into harder areas. The stresses and strains that the Euro currency is under have made it as unattractive to Scots as it is to the English. The SNP, because of the more prosaic reality that some 60 per cent of Scottish trade is with the rest of the UK and that it makes no sense to erect a currency barrier to that trade while tearing one down to benefit the 20 per cent of Scottish trade that is with the Eurozone, decided some time ago that an independent Scotland would stick with sterling as its currency until such time as there are economic benefits to joining the euro, which would only occur after a referendum.

The travails of the euro and the proposed deeper integration remedies, however, demonstrate that such a currency union would erode Scotland’s fiscal independence. Proposed tax changes and government budgets would have to come under the tutelage of the, with independence, foreign institutions of the UK Treasury and the Bank of England. Various unionist politicians, such as Treasury chief secretary Danny Alexander and former chancellor Alistair Darling, have argued either that the UK government simply could not countenance such an arrangement, or that the arrangements would be so restrictive as to nullify the claimed gains from political independence.

The SNP’s counter to this has been to assert a rather crude truth, that as sterling is a fully tradeable currency, the UK cannot stop Scotland from unilaterally adopting the pound. This, however, looks unsatisfactory from the point of view of independence. It leaves monetary policy, the determination of interest rates, and the operation of quantitative easing in the Bank of England’s hands. The SNP also claim, rather more vaguely, that the fiscal stability pact necessary to a currency union need not be so restrictive when, in fact, the lesson of EU struggles to stabilise the euro point to tighter rather than looser centralised fiscal controls.

This puts Salmond in the odd position of being, simultaneously, a Scottish nationalist, a European federalist, and a British unionist. He wants Scotland to have untrammelled use of its own credit card to dine at the same time in the British and European restaurants, but refuses the table d’hôte menu and insists on picking from two à la carte menus which neither chefs seem willing to offer.

Cameron is in only a slightly less strange place. He wants to trade heavily on his British nationalism with his domestic audience but waves his European unionism when on the other side of the English Channel. Both audiences are, however, able to see what is being presented to the other and thus he runs the high risk of undermining his message to one by his contrary calls to the other.

In his speech on the EU on 23 January 2013, David Cameron set out his intention to renegotiate the UK’s relationship with the EU and put the terms of that changed membership to the British people in an in/out referendum by the end of 2017, subject to the Conservatives winning an outright majority in the general elections in 2015. His speech received global attention and a mixture of praise (‘agree that the EU needs to be reformed’) and criticism (‘disagree with the language of unilateral negotiations and the threat of withdrawal’). Much of the commentary, indeed much of the speech itself, is based on the dubious premise that the UK is a major player in the European Union.

On one level, the UK undoubtedly sits at the top table: it has the third largest population and the third largest economy in the EU. However, the UK already has differently negotiated relationship with the EU than the other member states. It gets a significant rebate on its financial contributions to the EU budget; it has external borders with other EU member states; it has its own currency; it did not sign the fiscal stability treaty which requires budget prudence and introduces a debt brake for the 17 Eurozone states; and it will not (unlike 11 Eurozone states) impose a financial transaction tax which is designed to discourage speculative trading. Moreover, the UK limited the justiciability of the Charter of Fundamental Rights and the way in which it may be interpreted. And its red-lines approach at the IGC in 2007 means that the UK can itself decide (by 31 May 2014) whether to implement all the European measures on police and justice (which will be subject to the jurisdiction of the CJEU) or whether to opt out of all the measures and then adopt individual measures on an ad hoc basis (subject to the consent of the other member states). (Although how exactly the latter option ‘cuts red tape’ is anyone’s guess).

If this isn’t à la carte, then what is? What more does Cameron want to renegotiate? No one knows, and no one has yet produced a checklist, although the government will be working on one until the autumn of 2014. For the time being, the Working Time Directive, the European Arrest Warrant, and a better deal on fisheries keep coming up in debate. Is it realistic to argue that powers in those areas can be returned to the member states? The practical options are the following. Either the UK tries to tackle the matter from above by reducing the law-making powers of the EU institutions (that option would require a treaty change and the unanimous agreement of the other member state which is, currently, unrealistic). Or the UK tries to negotiate a better ‘deal’ for itself (e.g. through opt outs and protocols that are attached to the Treaty). But is it credible that the other member states would grant the UK special treatment when every member state is subject to aspects of EU law of which it disapproves and would dearly like to roll back the frontiers of European law and policy? So neither option seems workable.

On a more fundamental level it seems baffling that British Euroscepticism would appear to hinge on a handful of powers that need to be ‘repatriated’. It doesn’t, and it is ludicrous to suggest that the Europhobes in the Conservative party will be placated if junior doctors work longer, and UK nationals who are wanted on charges abroad cannot be extradited (whereas, of course, UK nationals who have committed a crime in the UK but fled to another EU member state will immediately be brought back home). On fishing, where the real issue is depleted stocks through overfishing, the Commission is already transferring decision-making powers to the member states in an attempt to decentralise fishing policy and tailor it to local conditions. As Douglas Alexander put it: ‘The gap between the minimum the Tories will demand and the maximum the EU could give is unbridgeable’. These are not the fundamental issues, and any self-respecting Europhobe will not rest until the UK has exited the Union and re-attached itself to the single market like a dingy to a supertanker.

So if Cameron’s speech does not stand up to scrutiny from a European perspective, maybe its intended target was closer to home. Almost all foreign and domestic observers noted that the speech was driven primarily by domestic party politicking (UKIP) and internecine party struggles (Bill Cash). Cameron is trying to unify a fractured party in the run-up to the general elections in 2015, and UKIP and the Tory backbenchers forced his hand. But even domestically Cameron may have dealt himself a bad hand. The offer of a referendum on renegotiated membership after the next general election is subject to two known unknowns: i) the outcome of the 2015 elections; ii) the outcome of the negotiations. It is presently far from clear whether he will be successful with respect to either or both.

Until then Cameron will be seeking, not so much nouvelle cuisine as cuisine impossible, just like Salmond: untrammelled UK access to the European single market restaurant, refusal of the table d’hôte menu and insistence on the à la carte menu which is not on offer. And then he will have the nerve to ask for a rebate (i.e. other member states subsidising his dining) when presented with the bill.

Conclusion

Cameron’s policy on the EU is just as incoherent as the SNP’s policy on continuing EU membership on current terms. Cameron assumes he will win the next election, just as Alex Salmond assumes that Scotland will automatically be an EU member state. Cameron claims that he can walk into the room and negotiate a new deal (‘I am an optimist, not a pessimist’, Cameron responded to a question on this issue by a journalist after his speech). Salmond claims that he can secure Scotland’s place in Europe on current terms, i.e. by inheriting the UK’s opt outs on the Euro currency and the Schengen free travel area, which is illusory.

Moreover, a referendum (if one is to be had) needs to set out two clear choices before the referendum. The in/out referendum on the EU or the Yes/No referendums on Scottish independence do not offer sufficient alternatives. What will come after EU membership? A free trade (all pay and no say) agreement with the EU like Norway? The Commonwealth? The USA? NAFTA? The global market? Splendid isolation?

Likewise, Salmond promises continuity when any EU lawyer, politician, and bureaucrat will tell him that there is no automatic right to membership of the European Union. So, what if membership is not automatic? Will Scotland stay outside the EU? Have its application fast-tracked? Join the queue of applicant states? He also promises currency continuity within a skeletonised British union, when there are an array of economists and Treasury politicians past and present saying it either will not work or will render the gaining of political independence pointless. So what will happen then? Freelance use of the pound? Enforced joining of the euro? Invention of a Scottish currency?

The à la carte menus offered by both are, in reality, dogs’ dinner.

Jo Eric Khushal Murkens, Department of Law, London School of Economics and Political Science

Peter Jones is a freelance journalist, writing on Scottish current affairs for The Economist, the Times and The Scotsman. He is also, with Jo Murkens, a co-author of Scottish Independence: A Practical Guide, EUP 2001.

Suggested citation: J. E. K. Murkens and P. Jones: ‘Salmond and Cameron order a dog’s dinner at the EU café’ Const. L. Blog (31st January 2013) (available at http://ukconstitutionallaw.org)

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Dorota Leczykiewicz: The ‘national identity clause’ in the EU Treaty: a blow to supremacy of Union law?

The provision generally referred to as ‘the national identity clause’ is located Article 4(2) of the Treaty on European Union (TEU).  It says:

The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.

Article 4(2) replaces a more modestly formulated provision of Article 6(3) of the pre-Lisbon Treaty.  It is now situated between a provision laying down the principle of conferral (according to which competences not conferred on the Union in the Treaties remain with the Member States) and that laying down the principle of sincere cooperation. The full significance of the provision has not yet been explored in the case law. Three scenarios come to mind, in which the ‘national identity clause’ might prove significant. First of all, the clause may be invoked by the Member States challenging validity of an EU act, either independently or in conjunction with an argument based on the principle of subsidiarity. Here, it will relate to the question of when and how the EU should exercise its competences, especially those of a more general character, such as Article 114 TFEU, which enables the Union to adopt harmonising measures to improve the functioning of the Internal Market. Secondly, Member States may invoke national identity as a justification for a failure to fulfil obligations stemming from EU law. The Court of Justice, as an institution of the Union, will have to show respect to national identities by allowing national authorities to derogate from, for example, free movement provisions. Finally, Article 4(2) TEU could be seen as codification of the case law of national constitutional courts, who often claim that EU law supremacy is only conditional. Whether it is the protection of human rights or the preservation of the essential structures of national constitutionalism, they cannot, the argument goes, be overridden by EU law.

‘National identity’ case law

Looking at the case law (both of the Court of Justice of the EU and of national constitutional courts) we can see the use of the ‘national identity’ clause in all three contexts. In Spain v Eurojust Spain was challenging calls for applications issued by Eurojust, which demanded the submission of the application form in English. While Spain relied on the concern for the protection of their language independently, and not as part of their national identity, AG Maduro in his opinion did draw the connection, which indicates that national identity may be relevant for cases in which the validity of EU acts is at stake.

More interestingly, in two cases the Court of Justice confirmed that the ‘national identity clause’ may play an important role in the context of Member States’ derogations from EU law. In Sayn-Wittgenstein the Court had to decide whether an Austrian administrative decision correcting the surname of the applicant in the register of civil status by removing from it elements which referred to a title of nobility was compatible with EU law. The Court held that the matter fell within the scope of EU law because the applicant was an EU citizen who had exercised the right to free movement (she resided in Germany). Because of a confusion and inconvenience which were liable to arise from a divergence between the name she would use in Germany (which included the element referring to the tile of nobility) and the one she would have to use in Austria (deprived of that element) the decision of Austrian authorities was regarded to be an obstacle to free movement and thus in need of justification. In assessing this latter issue the Court held: ‘in the context of Austrian constitutional history, the Law on the abolition of the nobility, as an element of national identity, may be taken into consideration when a balance is struck between legitimate interests and the right of free movement of persons recognised under European Union law.’ It follows that Article 4(2) TEU was used as an element of the proportionality review in order to strengthen the claim that national authorities should enjoy a broad margin of administrative discretion where ‘the status of the State as a Republic’, as an element of Austrian identity, is at stake.

In  Runev-Vardyn,  the applicant challenged the spelling of her name adopted by Lithuanian authorities. The applicant was of Polish ethnicity and wanted her first name and surname to be spelt according to the rules of the Polish language. Her predicament was moreover deepened by the fact that her Polish marriage certificate used the Polish spelling for her husband’s and now also her surname. By changing the spelling also of her married name Lithuanian authorities made her bear a different name from that of the applicant’s husband. The Court of Justice held that EU law ‘[did] not preclude the competent authorities of a Member State from refusing, pursuant to national rules which provide that a person’s surnames and forenames may be entered on the certificates of civil status of that State only in a form which complies with the rules governing the spelling of the official national language, to amend the surname which one of its nationals had prior to marriage and the forename of that person, where those names were registered at birth in accordance with those rules’. However, the Court declined to rule conclusively on the question of whether Lithuanian authorities could be regarded to have breached EU law when they refused to amend the part of applicant’s name which she shared with the husband. If a violation was found, a question of justification would arise, and in this context the Court invoked the ‘national identity clause’ to point out that protection of the official national language by imposing the rules which govern the spelling of that language, constituted, in principle, ‘a legitimate objective capable of justifying restrictions on the rights of freedom of movement and residence provided for in Article 21 TFEU and [might] be taken into account when legitimate interests [were] weighed against the rights conferred by European Union law’. What is very interesting about this ruling is that the ‘national identity clause’ is held to possess a double function. First, it can act as an objective which prima facie justifies a restriction of an EU right (i.e. a derogation from an EU obligation imposed on the Member State). Secondly, the same concern may additionally play a role when the national court is balancing the concern in question against an EU right. This double function of the ‘national identity’ concern suggests that a reliance on it weighs very much in favour of national rules and against the right which an individual derives from EU law. If this is the case, and despite a seemingly more modest formulation used by the Court, the ‘national identity clause’ might actually have a trumping effect.

This goes in line with what AG Maduro observed in his opinion in Michaniki:

“The preservation of national constitutional identity can … enable a Member State to develop, within certain limits, its own definition of a legitimate interest capable of justifying an obstacle to a fundamental freedom of movement.”

However, he does not quite want to accord the ‘national identity clause’ the trumping effect which the Court’s ruling in Runevič-Vardyn suggests. He held:

“[R]espect owed to the constitutional identity of the Member States cannot be understood as an absolute obligation to defer to all national constitutional rules. Were that the case, national constitutions could become instruments allowing Member States to avoid Community law in given fields. Furthermore, it could lead to discrimination between Member States based on the contents of their respective national constitutions. Just as Community law takes the national constitutional identity of the Member States into consideration, national constitutional law must be adapted to the requirements of the Community legal order.”

‘National identity clause’ and constitutional conflict

So the tension remains. National constitutional rules and practices can be invoked as expressions of values forming ‘national identity’ but there are limits to when such arguments are going to be conclusive. The best illustration that the Court of Justice of the EU will indeed look for an appropriate scope for the application of the ‘national identity clause’, bearing in mind its, in practice, trumping effect, is a recent ruling in a UK case – O’Brien v Ministry of Justice. The applicant, a part-time judge employed on a fee-paid basis and a barrister, tried to rely on an EU Framework Agreement on part-time work to assert his right to retirement pension calculated as a proportion pro rata temporis of that which a full-time Circuit Judge would be entitled to if he had retired on the same date. The Lithuanian government argued that the effect of the ‘national identity clause’ is that EU law simply could not apply to the judiciary. The Court of Justice did not agree with this proposition. It held:

“[T]he application, with respect to part-time judges remunerated on a daily fee-paid basis, of Directive 97/81 and the Framework Agreement on part-time work cannot have any effect on national identity, but merely aims to extend to those judges the scope of the principle of equal treatment, which constitutes one of the objectives of those acts, and to protect them against discrimination as compared with full-time workers.”

The EU Court is clearly assuming the competence to decide when the application of EU law should be seen as affecting national identity. Arguably, once it is accepted that national identity is being affected, the trumping effect of Article 4(2) TEU will be activated.

What is slowly emerging from the case law is that the ‘national indemnity clause’ could contribute to the resolution of the constitutional conflict in the EU, but only in a partial way. As we know, the constitutional conflict in the EU concerns a series of issues, ranging from the acceptance of the principle of supremacy, its limits and the basis on which national courts should disapply conflicting national law,  to the discussion of who is the final arbiter of constitutionality in the EU, the Court of Justice of the EU or national constitutional courts. Finally, there is a difficult question of how standards of constitutional review are to be constructed. Should EU acts be reviewed in the light of national standards or should it absorb those standards and in this way preserve its supremacy over national law? A direct reference in the EU Treaty to ‘national identities’ and the imposition on the European Union an obligation to respect them should be seen as way of softening the edges of EU law in both ways. On the one hand, reliance on ‘national identities’ is grounded in EU law and the Court of Justice of the EU is very much in control when the argument will succeed. It allows the concern for national identity to play a role, but within the limits it delineates. The German Federal Constitutional Court, on the other hand, maintains that Article 4(2) TEU is recognition of a national constitutional court’s power to safeguard national constitutional identity by carrying out review of EU acts by that court (the Lisbon judgment). If an EU act does not respect national identities national courts will have the power to resist the obligations stemming for the state from the act. What ‘national identity’ encompasses will for this purpose be determined by the national (constitutional) courts. If so, supremacy of EU law may have suffered a serious blow.

Dr Dorota Leczykiewicz is Leverhulme Trust Early Career Fellow at the Faculty of Law and at Trinity College, University of Oxford.

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Jeffrey Goldsworthy: Parliamentary Sovereignty’s Premature Obituary

At the end of a long review of my book Parliamentary Sovereignty, Contemporary Debates (CUP, 2010, hereafter PS), Vernon Bogdanor concludes that I have “suffered one of the worst fates that can befall a philosopher”: I have “become the prisoner of a doctrine” – that of parliamentary sovereignty (“Imprisoned by a Doctrine: The Modern Defence of Parliamentary Sovereignty” (2011) Oxford Journal of Legal Studies 179, hereinafter Bogdanor ). Apparently, self-imposed mental barriers prevent me from perceiving how the British constitution has changed.

What are Bogdanor’s reasons for this conclusion?

First, he puzzles over my claim that at present Parliament “cannot” limit its own substantive powers: is the impossibility a logical or contingent one? Since it cannot be a logical impossibility, he infers that I must mean that “it would be perfectly possible for Parliament to pass immutable laws but there are very good reasons why, as a matter of fact, it has never done so.” On this view, my “conception is a utilitarian one”, and is open to refutation “were it to be shown that the consequences would not necessarily be undesirable.” (Bogdanor,183) But this rests on a misunderstanding of my position. It is true that I believe there are good reasons of political morality for Parliament not being able to limit its own substantive powers, which I discuss in my book (PS, 7, 53-5, 116, 125-9).  But I maintain that Parliament cannot lawfully limit its own substantive powers, because there is currently a fundamental legal rule (a rule of recognition) to that effect, whose existence is constituted by its being generally accepted by legal officialdom. That rule can be changed, but only by a change in official consensus, and not by Parliament acting unilaterally (116, 137-8). That is what I mean by “cannot”.

Secondly, Bogdanor believes that Parliament’s sovereignty has been limited by the European Communities Act 1972 (“EC Act”) (Bogdanor, 182).  He acknowledges my suggested interpretation of the somewhat cryptic Factortame judgment, as construing the EC Act as imposing a kind of “manner and form” requirement that Parliament must use explicit language in order to legislate inconsistently with applicable EC law and with that Act (184). (He does not mention that I also offer two other, alternative interpretations of the judgment that are equally consistent with parliamentary sovereignty as I define it. (PS, 289-90, 296-8)) But he prefers the alternative view put forward by counsel in the Thoburn case, which he says “deserves more consideration than it has so far received.”(Bogdanor, 184)  According to this view, the EC Act altered Britain’s fundamental rule of recognition with the effect that Parliament cannot unilaterally derogate from EC law. Consequently, “national courts would have to apply EC law in preference to inconsistent national law”(185).  “If that is so”, he says, the EC Act limits Parliament’s substantive power. (186)

I freely acknowledge that this is a possible interpretation of the Factortame judgment, as I did in my book where I attributed it to Paul Craig (PS 287).  There, I said that if Parliament can legislate inconsistently with applicable EC laws only if it first enacts legislation withdrawing Britain from the EC, “then the EC Act would have subjected Parliament’s lawmaking power to a limitation of substance”, which “could not be explained in terms of a mere requirement as to the form of British legislation.” (287-8) However, I argued that this interpretation was implausible because “it is the business of the government and Parliament, not the courts, to decide whether or not Britain should abide by its treaty commitments.” (287) In other words, if Parliament were to pass a law that explicitly contradicts applicable EC law, but without withdrawing Britain from the EC, and therefore violates Britain’s treaty commitments, that would be its business, not the courts’. They do not have legal authority to enforce treaty commitments in the face of a statute to the contrary. Nor is there much evidence that, on this point, there has been the requisite change in official consensus for the rule of recognition to have changed, as Bogdanor suggests it has (Bogdanor, 184).  My argument then proceeded on that basis.

It is, of course, possible that the courts would take the opposite view, preferred by Bogdanor. But the fact that I offer reasons for disagreeing with a view that he thinks “deserves more consideration than it has so far received” (184) hardly suggests that I am imprisoned by a doctrine in the sense that I am unable to see beyond it. Nor does the fact that it is a possible view prove that it is the correct one, or that if Parliament’s substantive power have been limited in this respect they must be limitable in other respects as well (186). That is precisely what is in contention.

Thirdly, Bogdanor suggests that Parliament has also succeeded in limiting its substantive powers by enacting what he calls “binding” referendum requirements in s.1 of the Northern Ireland Act 1998 and ss.2-4 of the European Union Act  (‘EU Act’) (187-8). But neither of these referendum requirements strikes me as “binding” Parliament in the requisite sense. This is because they are not self-entrenched: they can be repealed or amended by ordinary legislation, without any referendum being held (PS, 144). I emphasized the importance of self-entrenchment in PS (at 144), and in my written evidence to the House of Commons European Scrutiny Committee, which Bogdanor refers to (The EU Bill and Parliamentary Sovereignty, HC 633-II (7 December 2010), Ev 31, para 10; Bogdanor, n38).  It might be argued that they are binding on Parliament until it repeals or amends them (Bogdanor, 189).  But that argument would invite two responses. First, if Parliament were to legislate inconsistently with these requirements – for example, by legislating for the ratification of a treaty covered by s. 2 EU Act without any referendum first being held as required by that section – it is very likely that the referendum requirement would be regarded as repealed pro tanto by implication. That conclusion follows from the principle established in McCawley v R [1920] AC 691 (PC). But say I am wrong about this, and the courts were to hold that Parliament must follow a two-step rather than a one-step procedure, and expressly amend or repeal such requirements before legislating inconsistently with them. My second response is that this would amount to a requirement that Parliament must expressly amend or repeal such requirements, rather than doing so by implication (through the enactment of inconsistent legislation). According to my theory, a requirement that Parliament must expressly repeal or amend a provision is merely a requirement as to form, and not as to substance. This is not a minor, incidental aspect of my theory: it is central to it, and is discussed at length in my book (PS 179-82, 195, 289-90). It forms part of my argument that the EC Act, as construed in Factortame, is consistent with parliamentary sovereignty. Thus, a referendum requirement is perfectly consistent with my conception of parliamentary sovereignty, provided that it is not self-entrenched and can therefore be repealed or amended, whether impliedly or expressly, by ordinary legislation.

Bogdanor continues his discussion of referendum requirements by confusing (as many British writers do) two different arguments that attempt to justify them, which in my book I distinguish: the manner and form argument, and the reconstitution argument (Bogdanor, 189-190; see PS, 139, 155-60, 167, 171-73 and 198-99). The reconstitution argument construes referendum requirements as changing Parliament’s composition, by making the electorate part of Parliament for particular purposes. That is quite different from arguing that Parliament has subjected itself to a requirement governing the procedures or forms by which it must legislate. Bogdanor argues against the reconstitution argument (as I do), but then seems to assume that he has refuted the manner and form argument (Bogdanor, 189-90). Then follow sweeping claims: that Parliament in the EU Act has partially renounced its sovereign power to legislate; that since it has done so on that topic, it could do so on others as well; and therefore that it could gradually bind itself to a whole new constitution. But as I have shown, all this rests on a misunderstanding of the extent to which Parliament has already been able to bind itself. In statutes like the Northern Ireland Act and the EU Act it has not bound its substantive powers in any constitutionally significant sense.

Fourthly, Bogdanor argues that the judges have limited Parliament’s powers: it cannot protect Ministers or public authorities from judicial review, by conferring unfettered discretions or enacting ouster clauses (191).  He asserts that Padfield and Anisminic make this “clear”, although he later says that “there is no case which allows one to confirm this interpretation.” (191, 192) I discuss Anisminic in my book, in a passage that Bogdanor does not mention (PS 285-6). All I can do is repeat what I said there: the House of Lords justified its decision on the orthodox ground of presumed legislative intention, and even if this was a “noble lie”, “the fact that a lie is felt to be required indicates that the judges themselves realise that their disobedience is, legally speaking, illicit” (PS, 286).

Fifthly, Bogdanor argues that if Parliament were to enact a statute subverting the foundations of the rule of law, it is possible that the judges would refuse to obey it. He refers to recent events and judicial statements (such as in the Jackson case) as possibly portending that outcome. It would shatter the official consensus on which (he and I both agree) the doctrine of parliamentary sovereignty has rested, and could lead to a constitutional crisis in which Parliament and the judges disagree about ultimate legal authority (Bogdanor, 193).  His conclusion is that, since the question of what Parliament “can” do depends on the reaction of the courts, and we cannot predict what their reaction would be, it is impossible to say that Parliament “can” enact such a statute (193, 194).

Here again, Bogdanor is confusing what Parliament “can” or “cannot” do in a practical sense, with what it can or cannot do in a legal sense. I would say the following, to any judges who think that if Parliament were to enact a statute subverting the rule of law, they should hold the statute to be invalid.

“There is no basis in the constitution as it currently stands for you to do this: the long accepted rule of recognition gives Parliament sovereign lawmaking power. Therefore, you would be attempting to bring about constitutional change, so that what Parliament can legally do today, it could no longer legally do.

You can attempt such a change, but you cannot plausibly claim legal authority to do so by invoking the theory of “common law constitutionalism” – the theory that parliamentary sovereignty is a doctrine of the common law, which the judges created and can therefore unilaterally modify or repudiate. I have refuted that theory, and judicial support for it in Jackson’s case (such as in the judgment of Lord Steyn) is therefore based on demonstrable falsehoods. Obiter dicta that can be shown to be false should be accorded no authority.

There is no other basis in the constitution for your claiming authority unilaterally to change the constitution in this way. That does not mean you cannot successfully initiate such a change, but it does mean that the political branches of government must be persuaded, inveigled, bamboozled, or bluffed into acquiescing in it. But what if they are not? What if they resent and resist your efforts to change the constitutional rules that were previously accepted, and take strong action to defeat it, possibly including the impeachment of ‘over-mighty judges’? That might be regrettable, but if you tear up the consensus that currently supports the fundamental rules of the system, you are hardly well placed to complain if it is replaced by a power struggle you are ill-equipped to win. In the absence of consensus, your own legal authority as well as Parliament’s would be up for grabs. (This passage is adapted from PS, 55)

 It might nevertheless be a good idea, before such a statute is enacted, for you to hint that you might refuse to obey it. The political branches may be just as concerned as you about the dangers of a constitutional crisis, and they might back down and decide not to enact it (as they did in 2003 when a sweeping ouster clause was withdrawn after protests by senior judges). But no matter how you couch such a threat, do not confuse in your own minds what would amount to judicial disobedience of the law, with the judicial exercise of constitutional authority. One of the practical restraints on Parliament’s exercise of lawmaking power is the possibility that it might not be obeyed. In an extraordinary case judges, like ordinary citizens, might be justified in disobeying a valid statute – and a fortiori, in hinting that they might disobey it. But it simply does not follow that it would be a good idea to abandon the doctrine of parliamentary sovereignty. What would replace it? A rule that the judges can subject Parliament’s authority to whatever limits they see fit (perhaps under the vague label “the rule of law”)? Remember that hard cases make bad laws. It would be better to retain the doctrine of parliamentary sovereignty, subject to the possibility of civil or even official disobedience in extraordinary situations, than to attempt to replace it with a rule of judicial supremacy capable of imposing fundamental constitutional changes on the nation.” (See also J. Goldsworthy, The Sovereignty of Parliament, History and Philosophy (OUP, 1999), 267-71)

Sixthly, Bogdanor argues that the concept of parliamentary sovereignty is of little value in analysing what Parliament can or cannot do. Indeed, the concept creates puzzles that would dissolve if it were abandoned (Bogdanor, 193-4).  He recommends that we simply ask what rules govern Parliament’s composition, powers and procedures; whether they impose formal or substantive limits on legislation; how they are determined; and how they can be changed. The concept of sovereignty, he claims, plays no constructive role in answering these questions (194).

It was one of the purposes of my book to answer most of these questions. It is not clear to me whether Bogdanor disagrees with my answers, or with the way I use the concept of parliamentary sovereignty in arriving at or expressing them. For example, I reject the theory of “common law constitutionalism”, and in his book The New British Constitution (Hart, 2009) he seems to agree with me (at 82-3).

I am extremely sceptical about Bogdanor’s claim that the doctrine of parliamentary sovereignty is now useless for theoretical or practical purposes. For centuries, it has been generally understood that Parliament has sovereign lawmaking authority. This meant that there were no substantive limits to its authority, and it could not subject itself to such limits except by abdicating its authority with respect to territories capable of being excised from its jurisdiction. On the other hand, there was some uncertainty about its ability to subject itself to binding rules as to the procedure for or the form of legislation. A crucial question is: to what extent have recent developments changed these understandings?

A minimalist approach to answering that question, which I favour, construes somewhat cryptic developments, such as the effect of the EC Act as interpreted in Factortame, as altering previous understandings only to the minimum extent that is necessary to accommodate those developments. Factortame can be construed as using the EC Act as a very strong rule for interpreting later statutes, or alternatively, as imposing a binding rule as to the form of later statutes (PS 287-98). The minimalist approach leaves intact as much of the previous understanding as possible, for a number of reasons. An established rule of recognition is constituted by a consensus among legal officials, which it would be dangerous to construe as having radically changed unless there is reasonably clear evidence of the change. To the extent that an established rule of recognition remains unchanged, there is greater certainty about the allocation of constitutional authority, compared with a fluid situation in which it is regarded as having been repudiated but not yet replaced by any clear alternative. Uncertainty about such matters is more likely to cause conflicts between the branches of government. In addition, both of the major theoretical alternatives to orthodox (“continuing”) parliamentary sovereignty (“self-embracing” parliamentary sovereignty, and common law constitutionalism), which authorise either Parliament or the Supreme Court unilaterally to limit Parliament’s substantive powers, could in principle lead to very undemocratic constitutional change (116, 137-140).

Alternatively, a maximalist approach of recent developments can be taken, according to which the doctrine of parliamentary sovereignty is now dead, if not yet buried. But if so, what has replaced it? The problem is that if Parliament is no longer sovereign, almost everything is up for grabs. Bogdanor’s suggestion that we simply ask what Parliament can and cannot now do strikes me as naive. There is no strong evidence that orthodox parliamentary sovereignty has been supplanted by either of the usual alternative theories. As previously noted, Bogdanor does not seem to embrace common law constitutionalism, the theory that it is up to the courts in developing “the common law” to decide what limits Parliament’s powers. Does he, then, embrace the theory of self-embracing sovereignty, the idea that Parliament can limit its own powers in any way it chooses? He would not, of course, approve of the term “sovereignty”, which he does not find useful. But he might still endorse the idea that Parliament has the power to limit its own powers (Bogdanor, 183), notwithstanding the dangers of that idea (PS, 116, 137-138).

Can Parliament – in the legal sense of “can” – limit its substantive powers, such as by enacting a fully binding, self-entrenched, referendum requirement? I say it cannot – unless the rule of recognition is changed. This is a possibility I discuss: indeed, I suggest that if a binding referendum requirement were enacted only after being itself approved in a referendum, this would help to justify and fortify a change in the rule of recognition (PS 139-140). As I put the point in my written evidence to the House of Commons European Scrutiny Committee (to which Bogdanor refers),

“To make it more likely that, in this scenario, the judges would enforce the earlier statute prohibiting the future enactment of legislation without a referendum first being held, that statute should itself be put to a referendum. The support of a majority of voters for such a referendum requirement would greatly add to the strength of the case in favour of its future enforcement notwithstanding Parliament’s later change of mind, indicated by its attempt to legislate without complying with that requirement. This is because obtaining the support of the voters for a requirement that their support be required in the future overcomes a principled objection to the imposition of a referendum requirement by ordinary legislation. The objection is this: if an earlier Parliament can use ordinary legislation to implement its preferred policies, why should a future Parliament not have the same liberty? To put it another way, why should the later Parliament be bound by the expression of a will that has no higher authority than its own will? This is the main justification of the orthodox view that Parliament cannot bind itself. But if a referendum requirement is enacted with the support of a majority of voters in a referendum, the objection is overcome. A future Parliament could then be said to be bound, not by an earlier will of no higher authority than its own will, but by an earlier will that does have such a higher authority – the expressed will of the people.” (The EU Bill and Parliamentary Sovereignty, HC 633-II (7 December 2010), Ev 31, para 11; Bogdanor, n38.)

 I am surprised to be accused of having argued myself into a blind alley – becoming imprisoned by the doctrine of parliamentary sovereignty – when I have suggested how, in this way, the doctrine could most legitimately and effectively be superseded. But, until a new constitutional settlement is clearly endorsed by the people, it would in my opinion be dangerously destabilizing to declare that parliamentary sovereignty is dead.

Jeffrey Goldsworthy is a Professor of Law at Monash University 

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Jan Komarek: Playing With Matches: The Czech Constitutional Court’s Ultra Vires Revolution

When the Czech Constitutional Court (CCC) declared the CJEU’s judgment in C-399/09 Landtová “ultra vires”, one of my colleagues commented: “giving Solange into their hands was like to let children play with matches”. I am afraid it is the adequate description of the decision, which is difficult to explain in legal terms and which in my view has much more to do with the psychology of the Court and its individual judges, although other domestic actors, the Supreme Administrative Court and the Government, also played an important role.

I suspect many readers of this blog will have to check the CJEU’s website in order to know what Landtová case was about. From the point of view of EU law it was an ordinary case, decided by the Fourth Chamber, concerning the interpretation of Regulation No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (“the Regulation”). Only at a closer look one could reveal an interesting dimension to it: the Czech Supreme Administrative Court (the SAC) was challenging the CCC’s case law concerning special pension increments that the CCC ordered to be paid to the Czech citizens, who were affected by the dissolution of Czechoslovakia in 1992.

Background to the conflict between the CCC and SAC

After the dissolution the two succession countries had to establish who was going to be responsible for paying the pensions of Czechoslovak citizens. Article 20 of the Agreement concluded by the Czech and Slovak Republic (“the C-S Agreement”) stipulated that the applicable scheme and the authority with competence to grant such benefits would be determined by the State of residence of the employer at the time of dissolution. Some people, who may have not moved from the Czech part of the then Czechoslovak federation during their entire life (except for holidays, perhaps), but whose employer had residence in the Slovak part, therefore obtained their pension (or its proportion) from Slovakia. This led towards the end of 1990s to a series of disputes, since the pensions in Slovakia were significantly lower than those paid in the Czech Republic (now it is the contrary, at least for some categories of people). The CCC found this to violate the right to adequate material security in old age (firstly in the judgment of 3. 6. 2003, II. ÚS 405/02).

The SAC never accepted this case law and initiated a protracted conflict with the CCC: the decision commented here is in fact the 17th in the line, which concerns various aspects of the matter. The SAC argued, among other things, that the special increment was incompatible with EU law.

The first argument was based on the fact that the C-S Agreement became part of the Regulation, which contains in its Annex III provisions of social security conventions that remain applicable notwithstanding the general rule according to which the Regulation replaces such conventions. Article 20 of the C-S Agreement was included in this Annex and in the SAC’s view the CCC’s interpretation changed the meaning of this provision – now part of the Regulation – and affected the way in which the pension is calculated according to it.

The second argument was based on the discrimination created by the CCC decisions: in general, by virtue of the Regulation (and just mentioned Annex), Article 20 of the C-S Agreement applies not only to Czech and Slovak citizens, but to any EU citizen who is retiring after the Czech Republic’s accession to the EU and who had before the dissolution of Czechoslovakia worked there. The CCC’s judgments have, however, limited the special increment to the Czech citizens only – excluding all others.

The CJEU’s ruling in Landtová Case

The CCC rejected these arguments in its judgment of 20. 3. 2007, Pl. 4/06 – without having asked preliminary reference to the CJEU, although its ruling necessarily involved the interpretation of the Regulation. We should add here, that in another judgment of 12. 8. 2010, III.ÚS 1012/10, the CCC quashed the SAC decision to suspend the proceedings in another Slovak pensions case and to await the CJEU’s ruling in the Landtová Case. The CCC ruled that it “has already dealt with the SAC’s interpretation and application of European law in the matter, which constituted ratio decidendi of the judgment”. In other words, the CCC stated that its interpretation of the Regulation shall prevail in the case regardless of the outcome of the CJEU’s ruling, so to await its results violated the rights to a fair trial of the petitioner in question.

On the reference from the SAC, C-399/09 Landtová, the CJEU ruled that while the special increment did not violate the Regulation as such, “the documents before the Court show[ed] incontrovertibly that the [CCC’s] judgment discriminate[d], on the ground of nationality, between Czech nationals and the nationals of other Member States” (para. 43). It added that “no evidence capable of justifying such discrimination has been adduced before the Court” (para. 47).

This reflects the fact that the Czech Government submitted observations which openly admitted that the CCC’s case law was contrary to EU law – rightly criticized by the CCC as “unprecedented”. However, the CJEU wanted to “soften” the consequences of its ruling: the special increment could be maintained, but must be paid to all EU citizens. At the same time, the CJEU observed that “EU law does not, provided that the general principles of EU law are respected, preclude measures to reestablish equal treatment by reducing the advantages of the persons previously favoured” (para. 53). It added, that “before such measures are adopted, there is no provision of EU law which requires that a category of persons who already benefit from supplementary social protection, such as that at issue in the main proceedings, should be deprived of it” (ibid.), stressing once again that the Czech Republic can adopt a solution that would satisfy both the requirements of EU law and the Czech Constitution as interpreted by the CCC.

The reaction to the Landtová ruling

The reaction of the Czech authorities, however, was not to the CCC’s pleasing. First, with a specific reference to the CJEU’s ruling the Parliament adopted an act which prospectively excluded the possibility of paying the special increment to everyone.

For the SAC the response of the CJEU was somewhat precarious. While the CJEU confirmed that it was right in considering the special increment unlawful, the former did not exclude that it can be granted to Mrs. Landtová. In the concrete case at hand the SAC was therefore supposed (or at least not prevented by EU law) to grant the increment to Mrs. Landtová.

Instead, the SAC came up with a different interpretation: because the CCC created the special increment in violation of EU law – and in particular the violation of its duty to refer preliminary question to the CJEU, its case law cannot be binding on the SAC, the SAC argued. In an ironic twist the SAC took advantage from the CCC’s ruling which found that such a violation would qualify as a breach of the constitutional right to the lawful judge (another irony lies in the fact that this ruling concerned a violation by the SAC…). The SAC challenged the CCC even further, stating that it of course did not undermine the CCC’s role as the final arbiter of constitutionality. But the only possibility for the CCC, the SAC stressed, would be to find that the relevant provisions of EU law violated the material core of the Constitution. The SAC therefore provoked the CCC to call revolution, if it wanted to stick to its case law.

When I saw this last SAC’s judgment I did not expect the CCC would do so. It did.

The CCC’s “ultra vires ruling”

The fact that a constitutional court of a Member State of the EU declared a judgment of the CJEU “ultra vires” is not something I would automatically condemn. I have always found presumptuous the writings that stressed the post-communist Member States’ courts’ need to “learn”, or which reacted to some of their judgments, which did not correspond to the CJEU’s orthodoxy, with suspicions concerning the competence of the respective judges, who were said to have “misunderstood” what it entailed to be the EU. The way in which the CCC justified its move, however, is most insulting – not only to the CJEU, whose accommodating gesture was returned by the CCC with a slap in the face, but to anybody who cares about the constitutional arrangements in the EU in general, and the Czech Republic’s place therein in particular.

The core argument put forward by the CCC was that the CJEU applied the Regulation to the legal relationships regulated by the C-S Agreement. In the CCC’s view the Annex to this Regulation lists the provisions of social security conventions which remain applicable differently from the Regulation. The CCC’s case law, creating a special pension increment based on Art. 20 of the C-S Agreement was among those provisions and the Regulation itself, in the CCC’s view provided for such differentiated treatment of Czech nationals.

Unfortunately (for the CCC), the Regulation emphasises that “save as provided in Annex III, the provisions of social security conventions which remain in force … shall apply to all persons to whom this Regulation applies”. Annex III then contains two lists of social security conventions and only those contained in part B of the Annex can provide for a differentiated treatment of certain categories of people”. Article 20 of the C-S Agreement is not amongst them; it cannot, therefore, establish differentiated treatment for certain categories of people.

Moreover, the Regulation of course cannot violate the provisions of the Treaties, including the prohibition on discrimination on the basis of nationality. Thus Regulation No. 647/2005, which amended the Annex, stresses in the fourth recital of its Preamble:

On the basis of the case-law relating to the relationships between Regulation (EEC) No 1408/71 and the provisions of bilateral social security agreements, it is necessary to review Annex III to that Regulation. … In addition, it is not appropriate to accept entries in part B except where exceptional and objective situations justify a derogation from Article 3(1) of that Regulation and from Articles 12, 39 and 42 of the Treaty.

This only confirms that the discrimination found by the CJEU could hardly be justified in case the relevant provision was not expressly mentioned in part B of Annex III (although the CJEU hinted at such a possibility, as mentioned above).

However, the CCC found the very application of the Regulation inappropriate. In its view, “the provisions of Annex III are from the point of view of EU law of declaratory nature only, they are not constitutive; the key consideration for the application of the Regulation is the nature of the legal relationships concerned, which must contain the so called foreign element”. This foreign element was lacking, according to the CCC, since “the periods of employment during the existence of Czechoslovakia cannot be viewed, retroactively, as periods of employment abroad”.

The key passage of the judgment, trying to explain why the CCC considered the CJEU’s ruling ultra vires is the following:

“Not to distinguish legal arrangements following from the dissolution of a state with a single social security system from the arrangements concerning the consequences for social security systems of the free movement of persons in the European Communities, or the European Union, amounts to the failure to respect the European history, it means to compare the incomparable. For this reason it is not possible to apply European law, ie. the Regulation, to the Czech citizens’ claims stemming from social security. Following the principle explicitly stated in its judgment [of 26. 11. 2008, Pl. ÚS 19/08, Lisbon Treaty I], it is not possible to do otherwise than to find in relation to the consequences of the [CJEU’s judgment in the Landtová Case] for similar cases that in its [the CJEU’s] case the situation where an act of an institution of the EU exceeded the competences transferred to the EU by virtue of Article 10a of the Czech Constitution occurred, that an act ultra vires was occurred”.

First, the CCC’s assertion that “the provisions of Annex III are from the point of view of EU law of declaratory nature only” is plainly wrong. In fact the CCC implies that the content of those provisions is to be determined autonomously from EU law – so that they can e.g. be “amended” by a ruling of a national constitutional court, such as the decisions of the CCC ordering the payment of a special increment to Czech citizens negatively affected by the application of Article 20 of the C-S agreement. The truth is that those provisions became part of the Regulation – providing for a special regime within the Regulation and their interpretation thus became a matter of EU law – where the final word lies with the CJEU, not the CCC. This relates to the second argument, already mentioned: that the CCC’s decisions, creating the special increment, established unequal treatment. As such, they would have to be listed in another part of Annex III – but they were not.

Such a misunderstanding could be perhaps understandable, if it did not lead to the finding of ultra vires ruling on the part of the CJEU. While the CCC ornamentally refers to the BVerfG’s rulings concerning the possibilities of its intervention, everybody who has ever had a look at these decisions would know that they are quite different – if only because the BVerfG suggested that it would firstly send a preliminary reference to the CJEU before finding its ruling ultra vires. As one of my colleagues commented on this, well-behaving people firstly try to talk to each other before pressing the trigger. Not the CCC.

Well, the CCC wanted to invent its own way of talking to the CJEU; instead of submitting a preliminary reference the Court sent a letter to the CJEU, where it wanted to explain its case law, as it saw that it was not be properly defended by the Government. The Registry, however, sent the letter back to the CCC, explaining that “according to what is established practice, the members of the CJEU do not exchange correspondence with third parties concerning the cases submitted to the CJEU”.

This apparently insulted the judges in Brno. The CCC “pointed to the deficits concerning the guarantees of the fair trial in the procedure in [the Landtová Case]”. In relation to its rejected letter the CCC “reminded that the CJEU regularly uses the institute of amici curiae in preliminary ruling procedure, in particular in relation to the Commission. in the situation when the ECJ was aware, that the Czech Republic as a party to the proceedings, acting through its government, which rejected the CCC’s opinion, which was the object of the CJEU’s assessment, it is impossible to see the CJEU’s finding that the CCC’s was a ‘third party’ in the case otherwise than a violation of the principle of audiatur et altera pars”.

Leaving aside a truly groundbreaking finding – also constitutional courts enjoy the guarantees of a fair trial! – the CCC demonstrated that it knew rather little about the relevant rules concerning preliminary ruling procedure, whereby the Commission (and the Member State Governments together with other institutions and also the parties to the case before the referring court) are invited to submit observations (Art. 23 of the CJEU’s Statute), no such provision is made for national courts and other institutions. Thus the CJEU’s rejection was fully in line with the rules which govern the procedure before it.

But there is another mystery: why did the CCC want to decapitate itself into the position of a party before the CJEU and complained about the latter’s rejection of its letter, if it had numerous possibilities of sending the reference to the CJEU, including in this case?

Consequences

In the Czech Republic only few people seem to have comprehended what the CCC did, except for the circles close to both courts involved and the Government. The CCC’s judgment contained other problematic elements which I did not have space to deal with (such as declaring the statute adopted by the legislature in response to the Landtová ruling “obsolete”, since the CCC did not have the competence to annul it in this case) and these will have to be discussed by the relevant actors.

One possibility I proposed on the Czech blog mentioned above was to await the change in the CCC’s composition, which is due in the course of this and the following year and try to postpone decisions in cases that deal with the same problem until this change. Some people suggest that the SAC should either simply ignore the CCC or to send another reference to the CJEU asking it on the effect of the CCC’s finding that the former’s ruling was ultra vires (what could the CJEU say?) It remains to be seen what (if anything) the reaction of the EU will be.

Jan Komarek is a lecturer in EU law at the London School of Economics and Political Science.

This post originally appeared in the Verfassungsblog, and is reposted here with thanks. 

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