The Application of European Law in the New Member States: Several (Early) Predictions

German Law Journal

Volumn 6, Issue 3, 2005, Pages 563-582

  Kühn, Zdenĕk ^a  

^a CHARLES UNIVERSITY   (Czech Republic)

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EID: 85175844598     PISSN: None     EISSN: 20718322     Source Type: Journal    
DOI: 10.1017/S207183220001381X     Document Type: Article

References (70)

1. Attila Harmathy, now a Justice of the Hungarian Constitutional Court, estimates that between January 1, 1990 and December 31, 1997, 894 acts of Parliament, 1635 governmental regulations, and 2331 ministerial decrees were passed in Hungary. These rules filled a full 51,104 pages of the official law gazette. In the same period the Constitutional Court published 501 decisions. Attila Harmathy, Codification In a Period of Transition, 31 U.C. DAVIS L. REV. 783, 790 (1998). For a sophisticated view by a Justice of the Czech Constitutional Court (in 2003 reappointed to the bench), see Pavel Holländer, The Judge Today: A Barrier to a Postmodern Deconstruction or an Industrial Factory for Decision-Making?, in SYSTEMS OF JUSTICE IN TRANSITION. CENTRAL EUROPEAN EXPERIENCES SINCE 1989 (JIŘÍ PRIBAN/PAULINE ROBERTS/JAMES YOUNG eds., 2003), pp. 77-93.
2. On this phenomenon generally, see MARTIJN HESSELINK, THE NEW EUROPEAN LEGAL CULTURE (2001).
3. Władysław Czapliński, Harmonisation of Laws in the European Community and Approximation of Polish Legislation to Community Law, 25 POLISH YEARBOOK OF INTERNATIONAL LAW (PYIL) 45, 54 (2001),.
4. See SACHA PRECHAL, DIRECTIVES IN EUROPEAN COMMUNITY LAW: A STUDY OF DIRECTIVES AND THEIR ENFORCEMENT IN NATIONAL COURTS 154 (1995).
5. See Anna Wyrozumska, Direct Application of the Polish Constitution and International Treaties to Private Conduct, 25 PYIL 5 (2001).
6. See Eric Stein, International Law in Internal Law: Toward Internationalization of Central-Eastern European Constitutions?, 88 A.J.I.L. 427, esp. 433 (1994). The Polish Constitution of 1952, the Hungarian Constitution of 1949 and the Czechoslovak Constitutions of 1948 and 1960 (the “Socialist” constitution) simply did not address the issue.
7. Compare e.g. Art. 69 of the EU-Czech Association Agreement.
8. Lajos Vékas, Antizipierte Umsetzung von Verbraucherrichtlinien und das Internationale Privatrecht, FESTSCHRIFT SIEHR, 775-95 (2000); Autonome Angleichung an das Gemeinschaftsprivatrecht und das EU-IPR Ungarn, 2000 IPRAX 240-243.
9. Wyrozumska, FESTSCHRIFT SIEHR, 775-95.
10. Decision of the Supreme Administrative Court (SAC) in Warsaw of 13 March 2000 in the Senagpo case, translated in (1999-2000) 24 PYIL 217, 219. The Supreme Administrative Court referred to European tax law “as the additional grounds for its judgment.” See also case note by Skrzydło-Tefelska, 24 PYIL 217, 220 (“We should welcome with satisfaction the commented judgment of the SAC since it constitutes the proof that Polish courts have properly understood the obligation of harmonization of Polish law with the acquis communautaire, which shall be realized not only by initiatives of legal acts consistent with European law but also by the proper interpretation of the existing provisions.”).
11. Gender Equality in the Civil Service Case. In Polish decision K. 15/97, Orzecznictwo Trybunalu Konstytucyjnego [Collection of Decisions of the Constitutional Tribunal], nr. 19/1997, at 380; English translation 5 E.EUR. CASE REP. OF CONST. L. 271, at 284 (1998) (my emphasis).
12. Decision of the High Court in Olomouc, November 14, 1996, published in (1997) 5 (9) PRAVNI ROZHLEDY [Legal views] 484.
13. Re Skoda Auto, Sbírka nálezů a usnesení [Collection of Judgments and Rulings of the Constitutional Court], Vol. 8, p. 149 (in Czech).
14. The inability to distinguish between these two concepts is nicely illustrated by the analysis by V. Týč, who considers the decision of the Czech Constitutional Court as though it accorded the EC Treaty direct effect. See Týč V., Czech Republic, in HANDBOOK ON EUROPEAN ENLARGEMENT. A COMMENTARY ON THE ENLARGEMENT PROCESS (ANDREA OTT & KIRSTYN INGLIS EDS., 2001), at 229, 231.
15. Milk Quota Case, published as No. 410/2001 Official Gazette (English translation available at http://www.concourt.cz). Under European law it would be unlikely to consider the milk quotas as an example of the general principles of European law. However, it is not entirely clear which principles would, according to the Czech Court, qualify - whether the possibility to impose production quotas themselves or the right to engage in free enterprise (as this latter right resides at the core of European legal culture, the existence of production quotas within the EU legal order would lead to the conclusion that the milk quotas would not constitute a breach of this right).
16. The decision was published as No. 76 of the Slovak case reporter for 2000: Zbierka stanovísk Najvyššieho súdu a rozhodnutí súdov Slovenskej republiky [Collection of decisions of the Supreme Court and courts of the Slovak Republic] (Vol. No. 4/2000, p. 55).
17. Decision of the Czech Supreme Court of December 12, 2000, 25 Cdo 314/99 (not published, but available at http://www.nsoud.cz).
18. On this in more detail see Zdenek Kühn, The Application of European Law in Central European Candidate Countries, 28 E.L.REV. 551 (2003).
19. See the commentary of judge Filemon of the Regional Court in Brno: “It would serve the development of specialized legal sub-branches of the copyright protection and the protection of industrial rights, if the Czech judiciary were more connected to ‘abroad’ (following foreign up-to-date legal theory and case law) and overcame the ‘Czech’ isolationist way of ignoring the importance of comparative law, as well as censorship of the editors of the collection of judicial judgments … That is why we are attempting at least in the areas with applicable international treaties … to use foreign commentaries and case law in original (e.g. from the Internet) or from the few available Czech translations.” A commentary of B. Filemon on a judgment sign. 11 Cms 231/96, in Jurisprudence, VYNUTITELNOST PRAVA A PRAVNI PRAXE [The Enforceability of Law and Legal Practice], n. 4-5/2000, 34.
20. See the interview with former Czech Minister of Justice Rychetský (since 2004 Chief Justice of the Constitutional Court) in the Czech daily, PRAVO, 25 Sep. 2002, page 1.
21. See EC Treaty art. 234 (ex Art. 177), as construed by the ECJ in Case 166/73, Rheinmühlen-Düsseldorf v Einfuhr- und Vorratsstelle für Getreide und Futtermittel, 1974 ECR 33, paragraph 2: “Article 177 is essential for the preservation of the community character of the law established by the treaty and has the object of ensuring that in all circumstances this law is he same in all states of the community.”
22. See joined Cases C-143/88 and C-92/89 Zuckerfabrik 1991 ECR I-415 [1991], paragraph 26 or joined Cases C-46 and C-48/93 Brasserie du Pêcheur/Factortame (No. 3), 1996 ECR I-1029 [1996], paragraph 33.
23. Which the ECJ proclaimed as early as 1964 in the “foundational” Case 6/64, Costa v. ENEL 1964 ECR 614 [1964]. See HENRY G. SCHERMERS, DENIS WAELBROECK, JUDICIAL PROTECTION IN THE EUROPEAN COMMUNITIES 394 (5th ed. 1992)
24. Konrad Lenaerts, Form and Substance of the Preliminary Rulings Procedure, in INSTITUTIONAL DYNAMICS OF EUROPEAN INTEGRATION, ESSAYS IN HONOUR OF HENRY G. SCHERMERS, vol. II, 355 (Deirdre Curtin & Ton Heukels eds. 1994).
25. E.g. Case 244/80 Foglia v. Novello (No. 2), 1981 ECR 3045 [1981], paragraph 14.
26. See clearly Case C-224/01 Köbler 2003 ECR I-10239 [2003], paragraph 56: state liability for the breach of Community law arises when the decision of the national court concerned is “in manifest breach of the case law of the Court in that matter.”
27. See Barceló J.J., Precedent in European Community Law, in INTERPRETING PRECEDENTS: A COMPARATIVE STUDY 407 (Neil D. MacCormick, Robert S. Summers eds., 1997).
28. As early as 1985 the Constitutional Court of Italy emphasized that the ECJ’s case law is binding on Italian national authorities as part of directly applicable Community law. Specification of the meaning of Community law by declaratory judgment of the ECJ has the same direct effect in Italian law as the interpreted provision itself. See the decision No. 113 of April 23, 1985, 68 RAC.UFF. 775 (1985), 1985 GIUR.COST. 694, quoted by PAOLO MENGOZZI, EUROPEAN COMMUNITY LAW. FROM COMMON MARKET TO EUROPEAN UNION 70 (1992). Similarly the German Federal Constitutional Court concluded that if the German national court declines to follow the interpretation of community law given by the ECJ, it is bound to refer the issue again to the ECJ according to the procedure found in EEC Treat art. 177 para. 3 (now EC Treaty art. 234 para. 3).
29. That is the reason prominent scholars claim that there are not just two European courts, but in fact thousands of them, dispersed throughout the territory of the EU. This is the primary idea of THE EUROPEAN COURT AND NATIONAL COURTS - DOCTRINE AND JURISPRUDENCE (Anne-Marie Slaughter, Alec S. Sweet, Joseph Weiler eds., 1998).
30. MALCOLM A. JARVIS, THE APPLICATION OF EC LAW BY NATIONAL COURTS: THE FREE MOVEMENT OF GOODS 439 (1998).
31. See BVerfGE 73, 339 (1986), Solange II. Sadurski remarked that it would be ironic, “at today’s stage of the development of EU law,” were the constitutional courts to “replicate” the Solange I doctrine, now of course outdated. See Wojciech Sadurski, Accession’s Democracy Dividend: The Impact of the EU Enlargement upon Democracy in the New Member States of Central and Eastern Europe 10 EUR. L.J. 371, 392 (2004). Even a development such as this, however, cannot be completely excluded, as one should not overestimate the expertise in EU law of constitutional court justices (or their advisers). In contrast with most Central European courts, preparations for the modified role of the constitutional court after the Accession seem to be generous in Poland. On the Polish Constitutional Tribunal’s website all major decisions of national constitutional courts on the relation between EU and national constitutional law have been translated and posted. See http://www.trybunal.gov.pl/index2.htm (visited on February 14, 2005).
32. See BVerfGE 89, 155 (1993), Maastricht.
33. Already in the late 1990‘s the Hungarian Constitutional Court indicated its willingness to play the role of the guardian of the national constitution against Community law. Decision 30/1998 (VI.25) AB 25 June 1998, see Janos Volkai, The Application of the Europe Agreement and European Law In Hungary: The Judgment Of An Activist Constitutional Court On Activist Notions, HARVARD JEAN MONNET WORKING PAPER 8/99, Harvard Law School (2000). The decision itself has been severely criticized as allegedly demonstrating the Court’s complete ignorance and misunderstanding of international and community law.
34. Imre Vörös, The legal doctrine and legal policy aspects of the EU-Accession, 44 ACTA JURIDICA HUNGARICA (AJH) 141 (2003), especially pp. 149-151.
35. The decision of May 25, 2004, 17/2004, quoted in Andras Sajó, Learning Co-operative Constitutionalism the Hard Way: the Hungarian Constitutional Court Shying Away from EU Supremacy, 2 ZEITSCHRIFT FÜR STAATS- UND EUROPAWISSENSCHAFTEN (ZSE) 351 (2004).
36. See the decision of May 31, 2004, K 15/04, quoted according to the English summary at www.trybunal.gov.pl/Eng/.
37. Quoted according to the Polish text, part III.2, published in Orzecznictwie Trybunalu Konstytucyjnego . Zbiór urzędowy [Collection of Decisions of the Constitutional Tribunal. Official Collection], ser. A., nr. 5, item 47, 655-668 (this part is not translated in the English summary). Instead, the Tribunal emphasized that the Polish Constitution “is the supreme act establishing the legal basis for the existence of the Polish State, regulating the principles of exercising public authority on its territory and the modes of establishing constitutional State organs, together with the functioning and competences thereof.” Yet, the Constitution may not be “directly applied to structures other than the Polish State, through which the Republic realizes its interests.” (see the English summary Decision of May 31, 2004, K 15/04 supra, note 34, para. 1). For that reason the Constitution may not be used for reviewing the constitutionality of political decision-making on the EU level. Reasoning pragmatically (“It is the function of law in a society to resolve conflicts and not to exacerbate them”, Decision of May 31, 2004, K 15/04, para. 9), the Tribunal rejected the argument that the mere fact that the Polish statute had come in force before EU law became applicable in Poland is the reason for this statute’s unconstitutionality.
38. The decision quoted Decision of May 31, 2004, K 15/04 supra note 34, at para. 10.
39. The decision does not seem to be available in English so far; therefore I use the article quoted Sajó.
40. See, e.g., the numerous works on “multilevel constitutionalism” by Ingolf Pernice, Multilevel Constitutionalism and the Treaty of Amsterdam: European Constitution-making Revisited?, 36 C.M.L.REV. 703 (1999);
41. Multilevel Constitutionalism in the European Union, 27 ELR 511 (2002); the concept of “legal pluralism” as defended by Italian theorists Massimo La Torre, Legal Pluralism as Evolutionary Achievement of Community Law, 12 RATIO JURIS 182 (1999).
42. See Slawomira Wronkowska, The Sources of Law in the Constitution of the Republic of Poland of 2 April 1997, POLISH CONTEMPORARY L., QUARTERLY REV. No. 1-4 (1998), 59-70.
43. On the analogous problems in the former Soviet Union see AKMAL K. SAIDOV, COMPARATIVE LAW 202 (2003, Russian original in 2000).
44. Kalmán Kulcsár, The role of law-making in the modernization process, 25 AJH 19 (1983).
45. Schmidt, Konstitutsiono-pravovye voprosy sistemi istochnikov prava VNR [The constitutional law problems of the Hungarian system of the sources of law], 27 AJH 155 (1985).
46. Wronkowska, Konstitutsiono-pravovye voprosy sistemi istochnikov prava VNR [The constitutional law problems of the Hungarian system of the sources of law], 27 AJH 155 (1985).
47. see on this Sajó, Konstitutsiono-pravovye voprosy sistemi istochnikov prava VNR [The constitutional law problems of the Hungarian system of the sources of law], 27 AJH 155 (1985).
48. MICHAL BOBEK, PORUSENI POVINNOSTI ZAHAJIT RIZENI O PREDBEZNE OTAZCE PODLE CLANKU 234(3) SES [Violation of the Obligation to Initiate a Proceeding on a Preliminary Question pursuant to EC Treaty art. 234(3)] 46-66 (2004).
49. Case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal SpA (II), 1978 E.C.R. 629 [1978]. See Victor Ferreres Comella, The European model of constitutional review of legislation: Toward decentralization? 2 INT’L J. OF CONSTITUTIONAL L. 461 (2004), who claims that the centralized model of constitutional review seems to be in crisis, facing both internal and external problems.
50. ROBERTO M. UNGER, LAW IN MODERN SOCIETY. TOWARDS A CRITICISM OF SOCIAL THEORY 209 (1976), further explaining the problems and deficiencies of purposive argumentation.
51. See Case 41/74 Yvonne van Duyn v. Home Office 1974 ECR 1337 [1997], paragraph 12 (“where the Community authorities have, by directive, imposed on Member States the obligation to pursue a particular course of conduct, the useful effect of such an act would be weakened if individuals were prevented from relying on it before their national courts and if the latter were prevented from taking it into consideration as an element of Community law. Article 177, which empowers national courts to refer to the Court questions concerning the validity and interpretation of all acts of the Community institutions, without distinction, implies furthermore that these acts may be invoked by individuals in the national courts. It is necessary to examine, in every case, whether the nature, general scheme and wording of the provisions in question are capable of having direct effects on the relations between Member States and individuals.”). See Joxerramon Bengoetxea, Neil MacCormick and Leonor M. Soriano, Integration and Integrity in the Legal Reasoning of the European Court of Justice, in THE EUROPEAN COURT OF JUSTICE 43-86 (Gráinne de Búrca & Joseph Weiler eds., 2001).
52. See CSABA VARGA, TRANSITION TO RULE OF LAW / ON THE DEMOCRATIC TRANSFORMATION IN HUNGARY 86 (1995).
53. However, see the description of this case law in joined Cases C-267 and C-268/91 Keck and Mithouard 1993 ECR I-6097 [1993].
54. See MIGUEL MADURO, WE THE COURT. THE EUROPEAN COURT OF JUSTICE AND THE EUROPEAN ECONOMIC CONSTITUTION: A CRITICAL READING OF ARTICLE 30 OF THE EC TREATY (1998).
55. On these difficulties see e.g. JARVIS, 435.
56. Case 33/76 Rewe v Landwirtschaftskammer für das Saarland 1976 ECR 1989 [1976], paragraph 5.
57. Joined Cases C-430/93 and C-431/93 Jeroen van Schijndel and Johannes Nicolaas Cornelis van Veen v Stichting Pensioenfonds voor Fysiotherapeuten 1995 ECR I-4705 [1995], paragraph 19.
58. Case 222/86 Union nationale des entraîneurs et cadres techniques professionnels du football (Unectef) v Georges Heylens and others 1987 ECR 4097 [1987], paragraph 17.
59. Bedanna Bapuly, The Application of EC law in Austria, IWE WORKING PAPERS SERIES No. 39, June 2003, at http://www.iwe.oeaw.ac.at/, at 14-15 (visited May 23, 2004)
60. Id. at 15, noting several Austrian examples.
61. Case 14/83 Von Colson v Land Nordrhein-Westfalen 1984 ECR 1891 [1984] and Case C-106/89, Marleasing SA v La Commercial Internacional de Alimentation SA 1990 ECR I-4135 [1990]. See PRECHAL, at 146 and 199.
62. Case C-106/89, Marleasing SA v La Commercial Internacional de Alimentation SA 1990 ECR I-4135 [1990], paragraph 8 (referring to Von Colson).
63. Klaus P. Berger, The Harmonisation of European Contract Law, The Influence of Comparative Law, 50 INT’L & COMP. L. Q. 877, 887 (2001).
64. See Ole Lando, The Principles of European Contract Law and American Legal Thinking, in: LAW AND JUSTICE IN A MULTISTATE WORLD 741, 743 (James A.R. Nafziger/Symeon C. Symeonides eds., 2002).
65. PRINCIPLES OF EUROPEAN CONTRACT LAW xxii (Ole Lando & Hugh Beale eds., 2nd ed., 2000).
66. HESSELINK, 48; generally THOMAS M.J. MÖLLERS, DIE ROLLE DES RECHTS IM RAHMEN DER EUROPÄISCHEN INTEGRATION (1999).
67. Ami Barav, Omnipotent Courts, in INSTITUTIONAL DYNAMICS OF EUROPEAN INTEGRATION, ESSAYS IN HONOUR OF HENRY G. SCHERMERS, vol. II, 265 (Deirdre Curtin/Ton Heukels eds. 1994). Not all Western judges enjoyed the new powers they had gotten in the area of the application of community law. Some English judges hesitated or even openly protested the use of their power in some delicate matters of national policies. Cf. id., at 300, quoting Hoffman J, according to whom “[i]n applying the Treaty as interpreted by the Court, the national court has to be aware of another division of powers: not between European and national jurisdiction, but between legislature and judiciary.”
68. See JERZY WROBLEWSKI, THE JUDICIAL APPLICATION OF LAW (1992).
69. Barav JERZY WROBLEWSKI, THE JUDICIAL APPLICATION OF LAW (1992), at 301.
70. See the foundational judgment of European decentralized judicial review, Case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal SpA (II), 1978 E.C.R. 629 [1987].