Abstract
“Do we still believe in the authority of EU law?” asks the title of the ERA Jubilee Congress. My personal, and qualified answer is yes, I still do. It is a qualified answer because, while being based on convictions about the legal principles that underlie the European construction, it has to be checked against the realities which prevail in Europe today.
The views expressed are the author’s alone. This text is a written development of the presentation that he made at the ERA Jubilee Congress, held in Trier on 19 and 20 October 2017, during the Panel discussion on The Impact of Legislation on the Authority of EU Law. It was completed on 6 February 2018.
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- 1.
Article 19(1) of the Treaty on European Union (TEU); Article 260(1) of the Treaty on the Functioning of the European Union (TFEU) lays down the obligation for the Member States to take the necessary measures to comply with the judgments of the Court.
- 2.
Article 2 TEU.
- 3.
Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece, OJ L 248, 24.9.2015, p. 80.
- 4.
ECJ (Grand Chamber) Judgment of 6 September 2017 in cases C-643/15 and C-647/15.
- 5.
On 20 December 2017, the Commission triggered the Article 7 TEU procedure to defend judicial independence in Poland, as it concluded that “there is a clear risk of a serious breach by a Member State of the values referred to in Article 2”, namely the rule of law, in that country. Earlier in 2017, the Commission had decided to follow up on the infringement procedure initiated in December 2015 against Hungary concerning its asylum law. Both Poland and Hungary “illiberal democracies”—neither of which would probably qualify for joining the European Union, as of now—have been under scrutiny by the Commission for a few years.
- 6.
In its Judgment of 30 June 2009 (Bundesverfassungsgericht, BVerfG, 2 BvE 2/08), the German Federal Constitutional Court found the Lisbon Treaty to be compatible with the Basic Law, thus opening the way for the German approval of that Treaty. It addressed however a certain amount of criticism to the EU institutional system insofar as it supposedly lacked the legitimacy which could only derive from the one citizen-one vote democratic principle.
- 7.
Article 10(2)TEU. Furthermore, Article 12 TEU illustrates the way in which national parliaments may contribute to the good functioning of the Union.
- 8.
Article 16(4)TEU.
- 9.
The turnout for the European Parliament’s elections has kept falling ever since the first direct elections in June 1979.
- 10.
See in particular the German Federal Constitutional Court decision of 2009, cited at note 6.
- 11.
The European Stability Mechanism (ESM) and the Treaty on Stability, Coordination and Governance (TSCG), better known as the Fiscal Compact, in 2012, as well as the Agreement on the transfer of contributions to the Single Resolution Fund in 2014.
- 12.
See Article 291, first paragraph of the TFEU. In the same vein, it belongs to courts and tribunals in the Member States to ensure the day to day adjudication of EU law.
- 13.
Article 15(2) TFEU.
- 14.
The same mistakes were made, as the same opportunity to improve citizens’ information was missed, when public opinions were confronted with the issue of the approval of the 2004 Constitutional Treaty, which was finally rejected in the French and Dutch referenda of 2005.
- 15.
Article 5(3) TEU and Protocol No 2 on the application of the principles of subsidiarity and proportionality.
- 16.
See now Article 12 TEU on the National Parliaments’ contribution to the good functioning of the Union, notably subparagraph (b).
- 17.
See note 12 above.
- 18.
The first Comitology Decision dates back to 1987; it was taken by the Council in the aftermath of the Single European Act. Comitology is currently governed by Regulation (EU) No 182/2011 of the European Parliament and of the Council laying down the general rules and principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers, OJ L 55, 28.2.2011, p. 13.
- 19.
The difficulty of legislating when unanimity in the Council is required should not be overrated: it may be as (if not more) difficult to do so in the ordinary legislative procedure, when the Council normally acts by a qualified majority.
- 20.
The ECJ called the Treaty “the basic constitutional charter” in 1986 (Parti écologiste Les Verts v. European Parliament, Case 294/83, 1986 E.C.R. I-1365, 23).
- 21.
A poll published last year in Italy—one of the Member States presently concerned by the populist rise—on the occasion of the 60th anniversary of the Rome Treaties showed that the Italians’ attitude towards the European Union was more positive than one could imagine: 76.4% of the respondents in the poll was in favour of the EU (the same poll in 1950 had only shown a favourable response of 71%); however, the share of positive responses amidst respondents between 18 and 34 years was up to 87% in favour (Doxa poll, quoted by Il Corriere della sera of 22 March 2017).
- 22.
See Maganza (2017), p. 479.
Reference
Maganza G (2017) Making a new start on a smaller European basis: an alternative to differentiation. In: Giegerich T, Schmitt DC, Zeitzmann S (eds) Flexibility in the EU and beyond - how much differentiation can European Integration Bear? Hart/Nomos, Oxford, p 479
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Maganza, G. (2019). Can the authority of EU law be taken for granted? A tale of principles and realities. In: Heusel, W., Rageade, JP. (eds) The Authority of EU Law. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-58841-3_4
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