From Costa to Constitution: The Case Continues...

Abstract: The doctrine of supremacy in Community law was established by the jurisprudence of the European Court of Justice and has evolved over time since the early case law of Van Gend en Loos and Costa-ENEL. The principle is an unwritten rule and a basic characteristic of Community law and has never been enshrined as a part of the European Treaties. It is evident that there will be clashes between the law established by the European Community and law in the Member States. In the event of conflict there must be a set of rules that specify what legal norm should take precedence over the other. Through its jurisprudence the ECJ has established the doctrine of supremacy that implies that Community law shall prevail over conflicting national provisions. The Member States are compelled to ensure the practical effectiveness of the principle of supremacy by upholding Community law. Since the doctrine of supremacy was a product of the Court and not the result of intergovernmental negotiations the reception and acceptance was mixed in national Constitutional Courts and overall was not met with unbridled enthusiasm. The doctrine has not been fully accepted by the Constitutional Courts in the Member States. Particularly, the standpoint of the ECJ has been challenged by the jurisprudence of the German Federal Constitutional Court, the BverfG. Supremacy does not entail a subordination of all national law but merely implies that Community law shall take precedence over national law in an area where the Member States have conferred competence on the Community. Consequently, Community law cannot prevail over national law in a field where the Community is lacking competence. The scope of the boundaries of these competences is often open to discussion both among the courts and legal scholars. The issue of supremacy is therefore intertwined with the question of the legal limits of the Community, also known as the question of Kompetenz-Kompetenz. The ECJ has laid claim to judicial Kompetenz-Kompetenz that essentially means that it possesses the power to determine the unconstitutionality of Community law. The BverfG has staunchly opposed this claim and considers that Member States have not relinquished the right to challenge the constitutionality of Community provisions to the European Court of Justice. The issue has been the subject of intense debate among legal scholars. Schilling essentially believes that a Community that is based on limited attributed competences, and thus lacking legislative Kompetenz-Kompetenz, which means having the legal power to further extend its competences, cannot have a court that is empowered with judicial Kompetenz-Kompetenz. Consequently, Schilling argues that the Member States and their courts retain the right to declare Community acts unconstitutional on the grounds of ultra vires. This position has been met with differing opinions amongst academia. The most convincing argument has been laid forward by MacCormick who considers the European legal order to be a pluralistic framework and rejects a hierarchical and subordinate relationship between the ECJ and national courts. MacCormick advocates interaction, dialogue and discourse rather than stalemate entrenchment. The Convention on the Future of Europe has created a Draft Constitution for Europe by consensus. It will most likely be the natural reference point during the IGC. The Draft Constitution has included the primacy of EU law in Article I-10 thereby de jure establishing supremacy of Union law. Seemingly, the Draft Constitution does not settle the question of limits of Union competences and the issues of legislative and judicial Kompetenz-Kompetenz. It is now up to the European leaders to address these questions during IGC. Whatever the outcome the debate will undoubtedly continue.