Protecting Supremacy from External Influences: A Precondition for a European Constitutional Legal Order?

• Published date: 01 March 2012
• Date: 01 March 2012
• DOI: http://doi.org/10.1111/j.1468-0386.2011.00595.x

eulj_595230..250

Protecting Supremacy from External

Inf‌luences: A Precondition for a European

Constitutional Legal Order?

Christina Eckes*

Abstract: The number of international law obligations that have binding force on the

Union and/or its Member States is sharply increasing. This paper argues that in this light

the well-functioning of the European Union ultimately depends on the protection of the

principle of supremacy from law originating outside of the EU legal order. The supremacy

of EU law is essential to ensuring that Member States cannot use national rules to justify

derogation from EU law.

As a matter of principle, international treaties concluded by the Member States rank at

the level of ordinary national law within the European legal order and below all forms of

European law (both primary and secondary). Article 351 TFEU exceptionally allows

Member States to derogate from primary EU law in order to comply with obligations under

anterior international agreements. It does not however allow a departure from the principle

of supremacy that underlies the European legal order. In Kadi I, the Court of Justice of the

European Union stated that Article 351 TFEU, while it permits derogation from primary

law, may under no circumstances permit circumvention of the “very foundations” of the EU

legal order. This introduces an additional condition that all acts within the sphere of EU

law need to comply with a form of “super-supreme law”. It also strengthened the principle

of supremacy and gave the Court of Justice the role of the guardian of the Union’s

“foundations”. The Court of Justice acted on the necessity of defending the Union as a

distinct legal order, retaining the autonomous interpretation of its own law, and ultimately

ensuring that the Union can act as an independent actor on the international plane.

I Introduction

In fashion, purple is the new black; in European law, constitutional law is the new

internal market. Indeed both in importance and in development, European constitu-

tional law is today what the internal market was in the eighties and early nineties. As

is well known, the establishment of the internal market depended not only on abolish-

ing internal rules that create obstacles to interstate trade but also on establishing a

* Associate Professor, Amsterdam Centre for European Law and Governance (http://jur.uva.nl/acelg),

University of Amsterdam. I would like to thank Dennis van Berkel, Stephan Hollenberg, Joana Mendes,

Jan Willem van Rossem and Jure Vidmar for their insightful comments on earlier drafts. Any remaining

errors are of course my own.

European Law Journal, Vol. 18, No. 2, March 2012, pp. 230–250.

© 2012 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

common external tariff and a common commercial policy.1Goods cannot freely cir-

culate without distortion of competition if the conditions for access to the European

market differ between Member States. Similarly, the functioning of the European

constitutional legal order depends on the protection of the principle of supremacy from

law originating outside of the EU. The supremacy of EU law is crucial to ensuring that

Member States cannot use national rules to justify derogation from EU law.2It applies

to all types of national legal rules, be it ordinary laws or constitutional provisions,3in

the event that they conf‌lict with any instrument of European law, be it primary or

secondary law.4Additionally, and this is the core argument of this paper, just as a

common approach to international trade is necessary for the internal market, the

well-functioning of European constitutional law based on the principle of supremacy

requires a common approach towards international law obligations that claim binding

force on the Union or the Member States, and primacy over European law.

The whole European construction depends on the willingness of the European

institutions and national actors to give priority to the effet utile of European law when

they take external actions. Despite the complexity of the Union’s internal constitu-

tional structure and the multitude of legal relations of the different actors with the

outside, the Union and the Member States coordinate their external relations in

practice well enough to ensure the functioning of the European legal order. On the

international plane, the Member States and the EU, now with international legal

personality in its own right,5struggle for external visibility. Within the European legal

order, the institutions and the Member States try to defend and extend their powers. At

the same time, all actors are obliged to act with loyalty towards each other and towards

the European project. This is acknowledged in a number of Treaty provisions6and has

repeatedly been conf‌irmed by the European Court of Justice (Court of Justice).7

Strong pulling forces and great disagreement of how to reconcile these forces came to

the surface in the recent discussion on the binding force and status of counter-terrorist

sanctions against private individuals imposed by the United Nations (UN) Security

Council. In the well-known case of Kadi,8the Court of First Instance could be said to

have prioritised the effectiveness of international law above that of European law. It

submitted the domestic measures giving effect to UN sanctions to a jus cogens review

only, refusing to apply European law standards. The Court of Justice took in the

appeal decision a diametrical opposed position. It protected the autonomy of the

European legal order—arguably at the expense of the effectiveness of UN Charter

1Pieter Jan Kuijper calls the common commercial policy, ‘The Flip Side of the Common Market, the Hard

Core of the Community.’: P. J. Kuiper, ‘Of “Mixity” and “Double-hatting”—EU External Relations Law

Explained’, Inaugural Lecture delivered at the University of Amsterdam on 23 May 2008, 10.

2Some make a distinction between supremacy (relating to the hierarchy of norms) and primacy (a conf‌lict

rule relating the application of norms), see D. Chalmers, C. Hadjiemmanuil, G. Monti and A. Tomkins,

European Union Law (Cambridge University Press, 2006), at 196–201. This discussion however is not the

focus of the present paper.

3Case 11/70, Internationale Handelsgesellschaft [1970] ECR 1125; C-106/77, Simmenthal II [1978] ECR

629.

4Case 6/64, Costa v ENEL [1964] ECR 585.

5Article 47 TFEU.

6See inter alia Article 351 TFEU, but also the general principle of loyal cooperation in Article 4(3) TEU.

7C-124/95, Centro-Com [1997] ECR I-81; C-459/03, Commission v Ireland (Mox Plant) [2006] ECR I-4635;

C-308/06, Intertanko [2008] ECR I-4057; C-188/07, Commune de Mesquer [2008] ECR I-4501.

8C-402/05 P and C-415/05 P, Kadi [2008] ECR I-6351.

March 2012 Protecting Supremacy from External Inf‌luences

231

© 2012 Blackwell Publishing Ltd.