The Network of European Courts and the Principle of Equality

László Trócsányi^*, Lénárd Sándor^**

https://doi.org/10.63189/MGYJ5195

The European Union is a “sui generis” unique association of sovereign states that is based on a complex web of inter-state treaties and laws. The role of the law has been of utmost importance in the development and cohesion of the European Union as it is first and foremost a legal construction that lacks single and uniform political or constitutional tradition. The crucial role of the law was created and facilitated by the evolutive approach and adjudication of the CJEU. Referring to the “spirit of the Treaties” and adopting a theological interpretation in its early judgements,^[1] the CJEU itself has created the conditions necessary for the EU law to become “autonomous” and a “new legal order of international law.”^[2] The doctrines of “direct effect” and “primacy” gave rise to this autonomy while its ultimate guardian has been CJEU that can secure its uniform and consistent application in the face of Member States or international tribunals.^[3]

Due to the autonomous characteristics of EU law, the European integration could dynamically evolve and broaden in the first decades while the CJEU has become one of the most prominent and influential institutions of its arrangement. At the same time, however, the principle of autonomy could not lead to isolation as the EU law is and remains part of the compound structure of a larger European community of laws that include the legal orders and traditions of Member States as well as the jurisprudence of the European Convention of Human Rights.

Furthermore, the interface, the interdependence and the possible tensions between the legal orders of the European community of laws have been considerably growing as the European integration progressed and began to include a multitude of questions beyond the original largely economic areas. Consequently, the links between the various legal orders are of increasing importance. However, while the CJEU is equipped to secure the uniform application and safeguard the autonomy of the EU law, it is neither empowered nor able to act as the final arbiter in the case of conflict or of the distribution of competences between the legal orders. As the history of the European integration shows, the courts of last resorts also play an essential role in preserving the limits of the common European exercise of competences as well as in protecting non-transferrable parts of the constitutions along with the distinct constitutional identity.

The constitutional or apex courts of the Member States as keystones of their respective legal orders recognized early in the European cooperation a need to safeguard their own constitutional tradition and to set a limit for the EU law to secure a harmonious coexistence. Two of the three constitutional courts of the largest founding states, West Germany and Italy expressed reservations about the “doctrine of EU law primacy” and declined to accept its unconditional primacy vis-à-vis the national legal systems. In the Frontini-case in 1973, the Italian Constitutional Court introduced the doctrine of counter-limit (“controlimiti”) that aims to protect the core constitutional order and permits the constitutional court to review EU law.^[4] In the same vein, the German Constitutional Court in its famous “Solange I decision” in 1974 reserved the right of constitutional review of the provisions of EU law if they contravene to the Constitution of the Federal Republic of Germany. The judgement emphasized that German Basic Law does not authorise a change of the fundamental structure of the constitutional order that forms the basis of constitutional identity.^[5] These early judgements of the national constitutional courts followed the revolution of the CJEU and signalled that the judge-made autonomy of the EU law needs to fit into the European community of laws and coexist and respect the national constitutional and legal orders.

The question of fair and final arbiter of the European constitutionality has gradually arisen with the expansion of the competences and the subsequent scope of action of the European Union since the 1980s. The “implied powers” principle enshrined in Article 235 of the Rome Treaty^[6] permitted to extend the competences if they are necessary to achieve the objective of the creation of the common market.^[7] The question of “Kompetenz-Kompetenz” that is the competence to distribute the competences gave cause for concerns especially after the change of regime and with the adoption of the Maastricht Treaty of 1993 that reshaped and extended the objectives of the European integration. As a response to the potential explosion of the subject matter the European Union can regulate, the German Constitutional Court adopted its so-called Maastricht decision.^[8] By introducing the “ultra vires” review doctrine, the German Constitutional Court reserved the right to scrutinize the exercise of the powers of European institutions based on their conferred competences. On the other hand, by distinguishing between constituting and constituted powers and emphasizing that the European Union is a treaty-based organization, the decision has given rise to a new actor within the European cooperation: the community of constitutional and apex courts. The jurisdiction of the CJEU is constrained by the Founding Treaties and the law of the EU enjoys primacy only within the Treaty limit.

Following the conclusion of the Lisbon Treaty, the coexistence of legal systems has become more tense for the past 15 years and the concept of constitutional identity and sovereignty have become the focal points of constitutional reviews throughout Europe. Among the reasons of the increasing tensions are the broadening scope of cooperation that includes questions of internal and external securities, fundamental rights and values which also goes hand in hand with a “constitutionalization” of the EU law. On the other hand, the number of Member States more than doubled since the change of regime the Eastward enlargement in the early 2000s brought countries with different historical experiences and also visions and expectations within the European cooperation. Therefore, the community has not only become larger but also more diverse in terms of virtues and cultural experiences. Being a fair arbiter requires to take into account a multitude of interests, however the recent development was not followed by a more inclusive or softer approach on the part of the supranational European institutions. That development gave rise to new ways of thinking on an institutionalized cooperation between European courts to secure a harmonious coexistence of the different legal systems which is supported by the fundamental principle of sincere cooperation enshrined in Article 4 paragraph of the Treaty on the European Union.

Any idea or proposal for a fair arbiter of European constitutionalism should start with the recognition that the European community of laws consists of EU law corpus, the national legal systems and the common tradition of fundamental rights enshrined in the European Convention of Human Rights. The European network of courts are the guardians of these legal orders: while the CJEU secures the autonomy of the EU law, the national constitutional and apex courts are the guardians of national sovereignty, constitutional identity and the legal cultures, the ECHR interprets the common fundamental rights tradition. Their relationship could not be addressed in terms of hierarchy as it is not a relationship of revision within the same legal order. Instead, it should rather be addressed in terms of competences within a framework of a dialogue.

The reforms would aim to better include the community of national constitutional and apex courts as well as the ECHR in the questions of European constitutionality. Beyond the old-new idea of the establishment of a competence court, there are numerous other proposals that would neither require Treaty-modification nor the establishment of novel institutions. Among these proposals are permitting and/requiring national constitutional and apex courts to present their opinion as interveners before in the procedures of CJEU in relevant cases. This would require the amendment of the procedure of the CJEU that would aim to create and facilitate an in-person dialogue which can contribute to the settlement of many of the disagreements between the CJEU and the national constitutional and apex courts. Furthermore, the recent proposal of the introduction of “reverse preliminary ruling procedure” could open the dialogue in both directions and would contribute to the identification and application of the precise content and requirements of constitutional identity that is also part of the values enshrined in the Founding Treaties. This would require treaty-amendment, however, if it is designed in a proper way, this procedure could potentially facilitate and reinforce the principle of sincere cooperation and comply with a requirement of comprehensive judicial review enshrined in Article 6 of the ECHR. Last but not least, as the Member States agreed in the Treaty of Lisbon, the accession of the European Union to the European Convention on Human Rights would complete the institutionalized European judicial dialogue by including the European fundamental rights discourse and their interpretation by the ECHR.

An institutionalized cooperation among the keystone judicia fora would reflect the constitutional responsibility for sincere cooperation within the European construction. Such a dialogue-based cooperation could be the foundation for fair and final arbitration of European constitutionality that could consider the multiple interests, including the respective constitutional traditions of Member States, present in the integration process. Such an institutionalized cooperation could also replace the constitutional review of EU law which now functions as a new version of the Luxemburg compromise. However, such judicial cooperation would be based on equality and equal protection of constitutional traditions. The institutionalized dialogue among equals could serve as the guardian and fair arbiter of the constitutionality of the European communities of law.

^* Rector of the Károli Gáspár University of the Reformed Church, Hungary.

^** Head of the School of Law of Mathias Corvinus College, Associate Professor at Károli Gáspár University of the Reformed Church, Hungary.

^[1] CJEU, 5 February 1963, NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration, Case 16-62, ECLI:EU:C:1963:1 and CJEU, 15 July 1964, Costa v E.N.E.L., Case 6-64, ECLI:EU:C:1964:66.

^[2] CJEU, 5 February 1963, NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration, Case 16-62,  ECLI:EU:C:1963:1.

^[3] See, e.g., 6 March 2018, Slowakische Republik (Slovak Republic) v Achmea BV, Case C‑284/16, paragraph 33, ECLI:EU:C:2018:158.

^[4] Italian Constitutional Court, judgment of 27 December 1973, 183/1973.

^[5] GFCC, Internationale Handelsgesellschaft von Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1974] Decision of 29 May 1974, BVerfGE 37, 271 CMLR 540 (Solange I).

^[6] See, https://eur-lex.europa.eu/legal-content/FR/TXT/PDF/?uri=CELEX:11957E/TXT (accessed 10 May 2025).

^[7] Such areas were, for example, the energy policy, the environmental policy or the regional policy agreed on during the Paris Summit in October 1972. See, https://www.cvce.eu/content/publication/1999/1/1/b1dd3d57-5f31-4796-85c3-cfd2210d6901/publishable_en.pdf (accessed 10 May 2025).  

^[8] The decision of BVerfG Maastricht Treaty 1992 Constitutionality case (1993), BVerfG 89, 155.