Requirement to Rebalance or to Amend the EU Treaty (TEU and TFEU) in Concordance with National Constitutional Law?

Abstract

The article explains and analyzes, whether there is a legal requirement to rebalance or amend the EU Treaty (TEU and TFEU) in concordance with national constitutional law due to a conflict of competence between the national supreme courts and national constitutional courts and the European Court of Justice. In short, the article has the following conclusions or findings: (i) National constitutional law and EU constitutional law (lex superior) are not in all instances in judicial congruence due to a conflict of competence. (ii) Under EU law as interpreted by the ECJ, even national constitutional law is under EU law primacy or supremacy, cf. e.g. 1) ECJ case C-11/70, Internationale Handelsgesellschaft, para 3, 2) ECJ case C-285/98, Kreil, and 3) ECJ case C-399/11, Melloni, para 58. (iii) Nevertheless, in three instances the European Court of Justice (the ECJ) has been overruled by national supreme courts and national constitutional courts under or due to national constitutional law, cf. 1) the Landtova case from the Czech Republic (the Czech Constitutional Court’s decision Pl. US 5/12 of 31 January 2012), 2) the Ajos case from Denmark (the Danish Supreme Court’s judgment of 6 December 2012 published in U.2017.824H) and 3) the ECB judgment from Germany (Bundesverfassungsgericht’s judgment of 5th May 2020, 2 BvR 859/15, etc.). (iv) The major focal point of the conflict of competence is the applied legal methodology by the ECJ with implied powers or derivation from the coherence of the EU Treaty or the EU treaties to treaty-giving power and legislative power for the ECJ. In reality, the said applied legal methodology gives the ECJ judicial circular competences or Kompetenz Zu Kompetenz (both treaty-giving power, legislative power and judicial power). (v) A solution to this judicial Gordian Knot or way out of the said conflict of competence could be to rebalance or amend the EU treaty. (vi) A suggested amendment to the EU Treaty is to add a section 4 to Art. 19 TEU. This suggested section 4 of Art. 19 TEU would constitute a new legal mechanism regarding EU law and national constitutional law. This legal mechanism could be that a conflict of competences with regard to ultra vires (outside conferred competences) would result in a renewed legislative process under e.g. Art. 294 TFEU. If the ECJ’s interpretation was upheld by the EU’s legislative power, the national courts must accede to this renewed legal basis. If the ECJ’s interpretation is not upheld via EU’s legislative process, the said interpretation by the ECJ is invalid. The same as above-mentioned would apply with regard to EU principles, which principles could only apply on an EU constitutional level, if they were made statutory via the Treaty, cf. Art. 1 TEU.