Rise of European Supranationalism
Matej Accetto
ECL, 27 October 2010
Sunrise of supranationalism
Schuman Declaration:
“… The common High Authority entrusted with the
management of the scheme will be composed of
independent persons appointed by the governments,
giving equal representation. A chairman will be chosen
by common agreement between the governments. The
Authority's decisions will be enforceable in France,
Germany and other member countries. …”
Supranationalism: the first prong
26/62, Van Gend en Loos, [1963] ECR 3:
“… the task assigned to the Court of Justice under Article 177
[now 234], the object of which is to secure uniform
interpretation of the treaty by national courts and tribunals,
confirms that the States have acknowledged that Community
law has an authority which can be invoked by their nationals
before those courts and tribunals . The conclusion to be drawn
from this is that the Community constitutes a new legal order
of international law for the benefit of which the States have
limited their sovereign rights, albeit within limited fields, and
the subjects of which comprise not only Member States but
also their nationals.”
Supranationalism: the second prong
6/64, Costa v. ENEL, [1964] ECR 1194:
“The integration into the laws of each Member State of
provisions which derive from the Community, and more
generally the terms and the spirit of the Treaty, make it
impossible for the States, as a corollary, to accord
precedence to a unilateral and subsequent measure over
a legal system accepted by them on a basis of reciprocity.
Such a measure cannot therefore be inconsistent with
that legal system.”
The magical formula of
supranationalism
Direct Effect + Supremacy = Supranational Legal Order
But… enter the Member States!
(starring the German Federal Constitutional Court)
For as long as… take 1
Internationale Handelsgesellschaft (Solange I),
BVerfGE 37, 271 (1974):
As long as the integration process has not progressed so
far that Community law receives a catalogue of
fundamental rights decided on by a parliament and of
settled validity, which is adequate in comparison with
the catalogue of fundamental rights contained in the
Basic Law, secondary Community law will still be
reviewed according to standards of the Basic Law.
The original position of the ECJ
1/58, Stork v. High Authority, [1959] ECR 43:
…Under Article 8 of the Treaty the High Authority is only
required to apply Community law . It is not competent to
apply the national law of the Member States. ...
Consequently, the High Authority is not empowered to
examine a ground of complaint which maintains that,
when it adopted its decision, it infringed principles of
German constitutional law.
The position reinforced
36, 37, 38 in 40/59, Gaitling v. High Authority,
[1960] ECR 423:
… Moreover Community law, as it arises under the ECSC
Treaty, does not contain any general principle, express or
otherwise, guaranteeing the maintenance of vested
[human] rights.
And then the quiet shift
29/69, Stauder, [1969] ECR 419:
… Interpreted in this way the provision at issue contains
nothing capable of prejudicing the fundamental human
rights enshrined in the general principles of Community
law and protected by the Court.
And yet five years later the Germans say
solange – so what is the problem?
The difficult truths about human rights:


No human right is absolute

Limited with the rights of others

Content (or scope) based on societal arrangements
Difficult to compare different standards
For as long as… take 1
Internationale Handelsgesellschaft (Solange I),
BVerfGE 37, 271 (1974):
As long as the integration process has not progressed so
far that Community law receives a catalogue of
fundamental rights decided on by a parliament and of
settled validity, which is adequate in comparison with
the catalogue of fundamental rights contained in the
Basic Law, secondary Community law will still be
reviewed according to standards of the Basic Law.
For as long as… take 2
Wunsche Handelsgesellschaft (Solange II),
BVerfGE 73, 387 (1986):
As long as the European Communities, in particular
European Court case law, generally ensure effective
protection of fundamental rights … which is to be
regarded as substantially similar to the protection of
fundamental rights required unconditionally by the
Constitution … the Federal Constitutional Court will no
longer exercise its jurisdiction to decide on the
applicability of secondary Community legislation … and
no longer review such legislation by the standard of the
fundamental rights contained in the Basic Law.
The real show of power
Maastricht-Urteil, BVerfGE 89, 155 (1993):
The sui generis nature of EU accepted but limited by “the
constitutional principles and fundamental interests of
the Member States” who remain “the Masters of the
Treaties” with the authority to decide on their content,
new accessions to them and ultimately even on the
termination of the treateies.
Has it already been that long?
C-144/04 Mangold:
the issue: the principle of non-discrimination in respect
of age
the stage: a 2000 EU non-discrimination directive and a
2002 German law on unrestricted fixed-term
employment after the age of 52
the possible villain: the European Court of Justice
the possible hero: the German Federal Constitutional
Court