The Court of Justice and the Constitutional Courts, EU law and Constitutional Law

The Court of Justice and the Constitutional Courts, EU law and Constitutional law Presented by: Dr. Sehnálek Date: 13 October 2023 Five Possible Solutions How To Deal With EU Law From The Perspective Of Constitutional Court - in view of the need to respect external obligations, EU law will take precedence over all national law, including the entire Constitution. By analogy, this solution would also have to apply to all international law. - EU law as a whole will become part of Czech constitutional law, but within the limits of the material core of the Czech Constitution. - only EU standards for the protection of human rights and freedoms will become part of Czech constitutional law. (This has already happened in the case of international human rights treaties). - EU law as a whole (or in its human rights part) becomes part of the frame of reference against which the Constitutional Court judges cases, without being a systemic part of the Czech legal system (which is the case in the previous two options). The Constitutional Court has already ruled in this way, but there does not seem to be a consensus among the individual chambers that this is the correct solution. - the Constitutional Court will not apply EU law at all, as it is outside the scope of its review. Response By National Law And National Courts Material: • EU law will interfere with the standard of protection of human rights and freedoms to an extent that will appear unsustainable from the perspective of a national constitutional court • The EU authorities will intervene in the sphere of important national values - an intervention in national identity - Formal • EU bodies will act ultra vires, and this category includes interference with what the Czech Constitutional Court calls the material core of the Constitution • The same situation will be legally qualified differently by national and EU courts. Thus, the dispute will not be about the existence of EU jurisdiction as in the previous case, but about the legal qualification of the facts. Mutually Incompatible Solutions? - the executive and the legislature seem to have no problem with the primacy of EU law within the limits formulated by the Court of Justice - they haven’t changed the founding treaties. - Constitutional court do not review the EU, they interpret the their own constitution in order to ascertain the conditions and limits of a State's membership of an international organization. This is what they can and should do! - Available solutions: • legislative so that the constitution is amended to comply with EU law Member States amend primary law to reflect the limits of national law • judicial so that The Court of Justice will change the interpretation of EU law to reflect the requirements of national law, in particular in situations affecting the national identity of a Member State the Constitutional Court adapts the interpretation of constitutional law to the requirements of European Union law • political so that the country leaves the European Union. • Institutional setting up a new body to deal with conflict situations by limiting the binding effect of decisions in preliminary rulings on matters relating to EU competence, national identity and the protection of human rights and freedoms, or of all decisions in these proceedings in general or by reallocating powers between EU institutions. Primacy And National Identity - National identity is a term of European Union law. The content of this term and its meaning is determined both by EU law through the Court of Justice and by national law, in particular through the constitutional courts (and their interpretation of constitutional identity). - The EU term national identity is therefore not absolutely independent from national law. The latter shines thru the EU law (and thus should have in my presentation mixed red and blue, thus purple color) - That's a theory, of course. Practice is different... The color is red... - Btw. Do we know what constitutional identity means in our countries