‘Solange, chapter 3’: Constitutional Courts in Central Europe—Democracy—European Union

• Date: 01 January 2008
• DOI: http://doi.org/10.1111/j.1468-0386.2007.00400.x
• Published date: 01 January 2008
• Author: Wojciech Sadurski

‘Solange, chapter 3’: Constitutional Courts

in Central Europe—Democracy—

European Union

Wojciech Sadurski*

Abstract:Soon after the accession of eight post-communist states from Central and

Eastern Europe to the EU, the constitutional courts of some of these countries questioned

the principle of supremacy of EU law over national constitutional systems, on the basis of

their being the guardians of national standards of protection of human rights and of

democratic principles. In doing so, they entered into the well-known pattern of behaviour

favoured by a number of constitutional courts of the ‘older Europe’, which is called a

‘Solange story’ for the purposes of this article. But this resistance is ridden with

paradoxes, the most important of which is a democracy paradox: while accession to the

EU was supposed to be the most stable guarantee for human rights and democracy in

post-communist states, how can the supremacy of EU law be now resisted on these very

grounds? It is argued that the sources of these constitutional courts’ adherence to the

‘Solange’ pattern are primarily domestic, and that it is a way of strengthening their

position vis-à-vis other national political actors, especially at a time when the role and

independence of those courts face serious domestic challenges.

I Introduction

One of the most important themes in the grand narrative of the emergence of EU law

as the supreme law of EU-land, prevailing over national legal systems, is (what may be

called generically) a Solange story: a story about national constitutional courts resisting

a straightforward surrender of national legal sovereignties, and insisting on their own

role as guardians of any further transfer of powers from the national to the European

level. This resistance is based on their distrust both of the democratic legitimacy at the

above-national level, and of the EU’s ability to provide a degree of protection of the

principles of the rule of law and human rights, at least equivalent to that of the most

elevated standards of the relevant national communities.

* Professor in the Department of Law, European University Institute, Florence, and in the Faculty of Law,

University of Sydney. I am grateful to Kasia Lach and Sara Dezalay, as well as to a number of other

colleagues whose advice is acknowledged in the relevant parts of the text below.

European Law Journal, Vol. 14, No. 1, January 2008, pp. 1–35.

© 2008 The Author

Journal compilation © 2008 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

The story, as developed here,1borrows of course its name from two judgments of the

German Constitutional Court. Solange I, in 1974,2established that since European law

had not yet reached a level of protection of fundamental rights equivalent to that

provided by national constitutional law, as well as a similar level of democratic legiti-

macy for its law-making powers, the court would keep reviewing secondary Commu-

nity law according to the standards of the national Constitution. Solange II, in 1986,3

expressed in turn a satisfaction that such a level had been reached by Community law,

and ‘as long as’ (solange) the European Communities, primarily through the case-law

of the European Court of Justice, kept ensuring an effective protection of fundamental

rights, the Federal Constitution Court would no longer carry out a review of secondary

Community legislation, according to national-constitutional standards (though it

would retain the power to review the general regime of fundamental rights protection

afforded by the EC). These developments have been replicated in several other coun-

tries where a number of constitutional courts have adopted a stance not unlike that of

the German Court.4

After eight post-communist, newly democratised states of Central and Eastern

Europe (CEE) formally acceded to the EU in 2004, one might have expected that the

constitutional courts in these states would be tempted to travel the path of their

German and other Western European counterparts. In fact, it would have been strange

should they not have:5The Solange story, initiated in Germany, Italy, etc some years

1I need to emphasise that the description provided is extremely stylised and fails to record the subtleties

and complexities of developments of the attitudes of various constitutional courts of the ‘old Europe’

towards the supremacy of EC/EU law. After Solange 1 and Solange 2, mentioned in the text above, the

German Federal Constitutional Court adopted a number of other extremely important decisions, which

can be seen as belonging to the same tendency, with some apparently departing from the position reached

in Solange 2, in particular the Maastricht Treaty Case, 89 BVerfGE 155 (1993), where the German Court

established that it would control observance by Community institutions of the Treaty-based limits to their

powers, and the compatibility of Community law with the fundamentals of the German Constitution.

This is all very well described in the literature (see, eg, B. de Witte, ‘Direct Effect, Supremacy, and the

Nature of Legal Order’, in P. Craig and G. de Burca (eds), The Evolution of EU Law (Oxford University

Press, 1999), and such an analysis would go beyond the scope of this article.

2Judgment of 29 May 1974, 37 Entscheidungen des Bundesverfassungerichts 271.

3Judgment of 22 October 1986, 73 Entscheidungen des Bundesverfassungerichts 339.

4For instance, on several occasions, the French Conseil Constitutionnel reviewed the EC Treaties under

the French Constitution, thus forcing France to amend its Constitution in 1992 and 1999; see its

Maastricht and Amsterdam Treaties decisions, respectively, decisions of 9 April 1992, 92-308 DC and of

31 December 1997, 97-394 DC. (The analogy with Germany is weak, though, as the decisions of the

French Conseil Constitutionnel were more like calls for constitutional amendments than strong objec-

tions to European legal supremacy; on the other hand, they were analogous in that they reasserted the role

of the Conseil as a guardian of constitutionality vis-à-vis the EC/EU.) In Italy, the Corte costituzionale

established in Frontini in 1973 (Frontini v Ministero delle Finanze, judgment of 27 December 1973) that

fundamental rights are the limits to the transfers of sovereignty to the EC. This was reasserted in the Fragd

rulingof1989(Spa Fragd v Amministrazione delle Finanze, judgment of 21 April 1989), where the court

claimed that it could review particular rules of EC law under the fundamental standards of the Italian

Constitution, and in particular its provisions on rights (though it has not exercised this power of scrutiny

so far). See de Witte, n 1 supra, at 202, n 111. For a discussion of similar situations in Spain and Belgium,

see ibid, at 204; for a discussion of the so-called Danish Maastricht Decision see P. Craig and G. De Burca,

EU Law: Text, Cases, and Materials (Oxford University Press, 3rd edn, 2003), at 312–313. In a summary

description by de Witte, ‘In most other countries too, the Constitution is still the uncontroverted summit

of the pyramid of the sources of law, and Community law is reluctantly given a para-constitutional status

at most’, de Witte, n 1 supra, at 204 (footnote omitted).

5For a prediction that they will, see, inter alia, Z. Kühn, ‘The Application of European Law in the New

Member States: Several (Early) Predictions’, (2005) 6 German Law Journal 563, 572.

European Law Journal Volume 14

© 2008 The Author

2Journal compilation © 2008 Blackwell Publishing Ltd.

ago, was almost ideally suited to be taken up in CEE, and those EU scholars who

ignored this dimension of the legal aspects of enlargement would do it at their peril:

they would neglect what may become a central stumbling block on the way to the

consolidation of the primacy of EU law6in an enlarged EU legal-political space. The

Solange story was well suited to be taken up in CEE after accession, for two powerful

reasons. First, in nearly all post-communist European states, constitutional courts

established themselves as powerful, influential, activist players, dictating the rules of the

political game for other political actors, and were certainly not burdened with any

self-doubt as to their legitimacy in striking down laws under very vague constitutional

terms.7While the powers of the constitutional courts in CEE largely resemble (and

often exceed) those of their Western European counterparts, the other branches of CEE

states are weaker, more chaotic, disorganised and inefficient compared to those in

Western Europe. The relative positions of constitutional courts are therefore probably

much weightier than is the case in the ‘older Europe’. Accession to the EU provided

these courts with yet another opportunity to reinforce their own powers—an oppor-

tunity not to be missed: they could easily (taking their cue from West European courts,

and thus abiding by the ‘follow the well tried model’ type of legitimacy)8assert a right

to establish and enforce criteria of democracy, rule of law and human rights protection,

which would inform the relationship between the European and national constitutional

orders. Such a power would further increase their position vis-à-vis the political

branches in their countries, by delineating those aspects of the supremacy of European

law which they deemed unacceptable, or by dictating the need to carry out constitu-

tional amendments if certain dimensions of supremacy were to be accepted, etc.

The second reason why the Solange story almost begged for a recurrence in CEE

stemmed from the strong sovereignty concerns which were felt and expressed in CEE

states prior to accession, and persisted after joining the EU. Elsewhere, I have described

the situation surrounding this concern as a ‘sovereignty conundrum’9: the often per-

ceived irony that almost immediately after the shaking off of the brutal dominance by

6A terminological matter should perhaps be clarified from the outset: when talking about supremacy, I will

be referring at times to EC law and at times to EU law (and sometimes, generically, to ‘European’ law,

meaning EU/EC law, as will clearly be dictated by the context), but nothing special is indicated by the

distinction. The use of ‘EC law’ is at times necessitated by the historical context, as it would be nonsensical

to refer to the EU before its existence. But I will avoid the controversy of whether the principle of

supremacy which has been long coined by the ECJ with respect to Community law, can also apply to EU

law (that is, to the second and third pillar norms) with equal force. I will simply assume, arguendo, that

it does (for a recent strong argument why this should be the case, see K. Lenaerts and T. Corthaut, ‘Of

Birds and Hedges: The Role of Primacy in Invoking Norms of EU Law’, (2006) 31 European Law Review

287, 289–290), and will revisit the matter only when a particular decision discussed marginally here may

have warranted the distinction between third-pillar rules and the norms of Community law, see n 89 unfra.

7For a general study of the emergence and development of constitutional justice in CEE after the fall

of Communism, see W. Sadurski, Rights Before Courts: A Study of Constitutional Courts in Post-

communist States of Central and Eastern Europe (Springer Scientific, 2005); see also H. Schwartz,

The Struggle for Constitutional Justice in Post-Communist Europe (University of Chicago Press, 2000) and

R. Prochàzka, Mission Accomplished: On Founding Constitutional Adjudication in Central Europe

(CEU Press, 2002).

8On imitation as a source of legitimacy in Central European democratic transitions, see C. Offe, ‘Designing

Institutions in East European Transitions’, in R. E. Goodin (ed), The Theory of Institutional Design

(Cambridge University Press, 1996), 199, at 213–214.

9W. Sadurski, ‘The Role of the EU Charter of Rights in the Process of Enlargement’, in G. A. Bermann

and K. Pistor (eds), Law and Governance in an Enlarged European Union (Hart, 2004), 61, at 71–75.

January 2008 ‘Solange, chapter 3’

© 2008 The Author 3

Journal compilation © 2008 Blackwell Publishing Ltd.