The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe before and after the Constitutional Treaty

Date01 May 2005
DOIhttp://doi.org/10.1111/j.1468-0386.2005.00260.x
Published date01 May 2005
AuthorMattias Kumm
The Jurisprudence of Constitutional
Conf‌lict: Constitutional Supremacy
in Europe before and after the
Constitutional Treaty
Mattias Kumm*
Abstract: One of the core constitutional questions for national constitutional courts in the
EU in the past decades has been whether to accept the claim made by the Court of Justice
that EU law is the supreme law of the land, taking primacy even over conf‌licting national
constitutional provisions. With the inclusionin the recently adopted Constitutional Treaty
of a clause explicitly conf‌irming the ‘primacy of EU Law’ appearances suggest that the
EU is about to establish a characteristic of mature, vertically integrated, federal states
such as the USA. This article argues that this view is mistaken. It develops a
comprehensive jurisprudential framework for addressing constitutional conf‌licts, ‘Con-
stitutionalism Beyond the State’ (CBC). CBS detaches the discussion of supremacy and
constitutional conf‌lict from a statist framework; provides a jurisprudential account that
explains and justif‌ies the highly differentiated, context-sensitive and dynamic set of con-
f‌lict rules that national courts have in the past adopted; and provides the lacking theoret-
ical basis for the more attractive, but undertheorised sui generis accounts of European
constitutional practice that have recently gained ground in the literature. CBS provides a
jurisprudentially grounded reconstructive account of why the issue of constitutional con-
f‌lict is as rich and complicated in Europe as it is and why it is likely to remain so even if
the Constitutional Treaty is ratif‌ied. The article then goes on to make concrete proposals
addressed to national constitutional courts and the Court of Juctise respectively about
how, in application of the developed approach, constitutional conf‌licts ought to be
addressed doctrinally. It includes a proposal to read the new ‘constitutional identity’ clause
as authorising Member States as a matter of EU Law to set aside EU Law on constitu-
tional grounds under certain circumstances.
European Law Journal, Vol.11, No. 3, May 2005, pp. 262–307.
© Blackwell Publishing Ltd. 2005, 9600 Garsington Road, Oxford OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
*NYU School of Law. This article has had a long gestation period and prof‌ited from contributions of a
great number of people. A very rough f‌irst draft prof‌ited a great deal from the scrutiny it received by the
participants of the Colloquium of Legal, Political and Social Philosophy at NYU School of Law in 2001,
and from Ronald Dworkin and Tom Nagel specif‌ically. I also thank Robert Alexy, Samantha Besson,
Victor Ferrerez-Comella, Eleanor Fox, David Golove, Dieter Grimm, Barry Friedman, Daniel Halber-
stam, Benedict Kingsbury, Larry Kramer, Miguel Maduro, Frank Michelman, Liam Murphy, Fred
Schauer, Alexander Somek, Anne-Marie Slaughter, Alec Walen, Neil Walker, and Joseph Weiler for
helpful comments on earlier drafts and/or helpful conversations on the questions raised.
IConstitutional Conf‌lict and Constitutional Supremacy in Europe
The question how to deal with constitutional conf‌licts is perhaps the most enduring
controversial issue in contemporary European constitutional theory and practice. Forty
years after the Court of Justice declared the law of the European Communities to be
the supreme law of the land in Europe,1controversy over the relationship between EU
Law and national law remains very much alive.2
To be sure, there are important issues that have been settled. National courts in all
Member States have accepted that EU Law trumps national statutes, even statutes
enacted later in time. This may not be surprising for jurisdictions such as The Nether-
lands, which constitutionally prescribe the primacy of international law over national
law.3It is more remarkable in jurisdictions such as Italy and Germany, generally com-
mitted to the proposition that the status of international law treaties in domestic law
is the same as that of parliamentary statutes—and that in case of conf‌lict between them
the norm enacted last in time prevails.4It is a major constitutional transformation in
a jurisdiction such as the UK, where the principle of parliamentary sovereignty pre-
sented a formidable barrier. Yet today the House of Lords will set aside a national Par-
liamentary law, even if it is enacted later in time and contradicts EU Law on its face.5
The courts of Member States, then, have accepted the claim by the Court of Justice
that EU Law is not just Treaty Law,but establishes a legal order whose laws have greater
authority.
But even if EU law is deemed to have greater authority than treaties generally, it
would be a mistake to conclude that all Member States have accepted the Court of
Justice’s view that EU Law is the supreme law of the land. A signif‌icant number of
national courts have instead held that they could set aside EU Law on constitutional
grounds under certain circumstances.Even these courts do not simply rely on a straight-
forward rule of national constitutional supremacy. Even when they resist the full-blown
acceptance of EU law supremacy, they generally do so under a strong presumption that
they should apply EU law.6Whether and under exactly what circumstances national
May 2005 Constitutional Supremacy and the Constitutional Treaty
© Blackwell Publishing Ltd. 2005 263
1The leading cases are Case 6/64, Costa v ENEL [1964] ECR 585; Case 45/76, Comet BV v Produktschap
voor Siergewassen [1976] ECR 2043; Case 106/77, Amministrazione delle f‌inanze dello Stato v Simmenthal
[1978] ECR 629.
2For general overviews of note on the issue,see A. M. Slaughter, A. Stone Sweet and J. H. H. Weiler (eds),
The European Court & National Courts–Doctrine and Jurisprudence: Legal Change in its Social Context
(Hart, 1998); C. Grewe and H. Ruiz Fabri, Droits Constitutionnels Européens (Presses Universitaire de
France, 1995); F.Mayer, Kompetenzüberschreitung und Letztbegründung (C.H. Beck, 2000). For a collec-
tion of the leading cases across jurisdictions, see A. Oppenheimer (ed.), The Relationship between Euro-
pean Community Law and National Law: The Cases (Cambridge University Press, 1994 [Vol.1] & 2003
[Vol.2]).
3For a general overview of the situation in The Netherlands and Belgium, see B. De Witte, ‘Do Not
Mention the Word:Sovereignty in Two Europhile Countries:Belgium and the Netherlands’, in N. Walker
(ed.), Sovereignty in Transition (Hart, 2003), at 351.
4See the national reports by J. Kokott (Germany) and M. Cartabia (Italy) in Slaughter et al., op. cit.
note 2 supra,at 77 and 133 respectively.
5See P.Craig, ‘Report on the UK’, in Slaughter et al.,op. cit. note 2 supra,at 195.
6Descriptions of the EU and national legal orders and legally independent yet mutually engaged abound.
Particularly illuminating are S.Besson, ‘From European Integration to European Integrity: Should Euro-
pean Law Speak with Just One Voice?’, (2004) 10 ELJ 257; M. Maduro, ‘Contrapunctual Law: Europe’s
Constitutional Pluralism in Action’, in N.Walker (ed.), Sovereignty in Transition (Hart,2003), at 449. See
also M. Kumm, ‘Who Is the Final Arbiter of Constitutionality in Europe?: Three Conceptions of the
Relationship between the German Federal Constitutional Court and the European Court of Justice’,
(1999) 36 CMLR, 356.
courts will set aside EU law varies across jurisdictions. Here it must suff‌ice to provide
a very schematic overview. The purpose of this overview is to understand what exactly
the points of conf‌lict between the Court of Justice and national courts are. This pro-
vides the basis for a more informed assessment both of current practice and of how
the ‘Treaty establishing a Constitution for Europe’ (hereafter: Constitutional Treaty),
ought, and is likely, to impact these conf‌licts.
There are three lines of national constitutional resistance that def‌ine possible arenas
of future constitutional conf‌lict.
The f‌irst concerns constitutional rights. This issue dates back to the 1970s and is
today probably the least virulent of the three. The story is well rehearsed: originally the
German and Italian constitutional courts asserted that they had jurisdiction to review
EU law on the grounds that it violated national constitutional guarantees.7As the Court
of Justice further developed its fundamental rights jurisprudence, the issue became less
of a concern. The German court backed off8and recently conf‌irmed9that it would not
exercise its jurisdiction to review EU law on grounds concerning national constitutional
rights, for so long as equivalent protection was provided by the institutions of the EU.
Neither has the Italian court seriously engaged in reviewing EU Law. Though funda-
mental rights remain a residual constitutional ground for some national courts to refuse
enforcement of EU Law, the probability that an actual constitutional conf‌lict between
EU Law and national law will arise is zero, for so long as these courts maintain the
view that the protection of rights on the European level is functionally equivalent.
The second concerns the issue of ‘Kompetenz-Kompetenz’. This is an issue that is rel-
atively new—it came up as a corollary to the debates concerning subsidiarity and the
appropriation by the Treaty of Maastricht of the language of citizenship. If the EU
legislation is confronted with the claim that it was enacted ultra vires—that it was
enacted beyond the competencies conferred on the EU—who gets to ultimately decide
on whether that claim holds true? Who gets to ultimately police the jurisdictional
boundaries between the national and European polities? The highest German10 and
Danish11 courts in particular have made claims grounded in national constitutional law
that they have the residual authority to determine whether EU legislative acts are
enacted ultra vires.These courts realise that the Court of Justice has the jurisdiction
under the Treaty to review the legality of EU acts, which includes the review of whether
the enactments are within the EU’s competencies. But the Court of Justice is itself an
EU institution that can act ultra vires,by attempting to amend the constitution under
the guise of interpreting it. If the Court of Justice rubberstamps the EU’s legislative
acts as falling within the EU’s competencies, then national courts have a constitutional
duty to step in and render such laws inapplicable in their respective jurisdictions, so the
argument goes.
The third set of issues concerns the possibility of conf‌lict between EU law and other
specif‌ic constitutional provisions. Such conf‌licts have become increasingly frequent ever
since the Treaty of Maastricht. Some of these cases concern conf‌licts between EU
primary law and national constitutional law.The Maastricht Treaty,for example, estab-
lishing a right of EU citizens to vote and stand for elections in municipal elections
European Law Journal Volume 11
264 © Blackwell Publishing Ltd. 2005
7See, for example (1974) 37 BVerfGE 271 (‘Solange I’).
8(1986) 73 BVerfGE 339 (‘Solange II’).
9BVerfGE, 2 BvL 1/97 of 7.6.2000, http://www.bverfg.de/cgi-bin/link.pl?entscheidungen.
10 89 BVerfGE 155 (better known as the ‘Maastricht’decision).
11 Case I-361/1997, Carlson and Others v Rasmussen (Supreme Court, 6 April 1998).

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