(By Alicia Hinarejos)
NB: This article was published in 2009, before the ratification of the Lisbon Treaty, thus it refers to the law as it was then.
INTRODUCTION
It has been agued by various parties that inaction is preferable to the ratification of the Lisbon Treaty. This paper argues otherwise, concentrating on the fast-developing area of EU law – the third pillar (I will use abbreviation 3P). It is suggested that the change in the nature of 3P law from ‘weak’ international law to ‘strong’ EC (now EU) law taking place as a result of an all-embracing treaty overhaul will be accompanied by an extension of the system of judicial protection that will ensure an unproblematic transition.
THIRD PILLAR LAW: The law adopted in the first pillar (1P) of the EU (EC law), on the one hand, and the law adopted in the second and third pillar of the EU, on the other, have different legal effects.
All arguments put forward in this paper are compatible with considering EC law as a particular and distinct branch of international law that has developed stronger features.
EU law is adopted outside of framework of the Community by means other than the Community method. It does not have the effects of EC law measures (direct effect, primacy, etc.) and national courts – depending on national law – may be in position to review these measures according to national standards and disapply them.
Some of the measures adopted under 3P are comparable to some extent to EC measures (framework decisions and decisions on one hand, directives and regulations on the other – their descriptions are identical, except for the fact that direct effect is excluded for the first two).
Although direct effect is explicitly excluded in the TEU, the ECJ has extended other features of EC law to 3P measures blurring the line between EC and EU (3P) law.
ToL will reform all institutional arrangements – most importantly, judicial oversight – to unify 1 and 3P. This will mean unification of EC and EU law.
A CASE STUDY: THE NATIONAL COURTS AND THE EUROPEAN ARREST WARRANT (EAW) There is some uncertainty among national courts as to the present status of 3P. Litigations generated by the Framework Decision on the EAU before several national course across the Union and before the ECJ will be used to illustrate this uncertainty.
The EAW Framework Decision creates a speedy surrender procedure between judicial authorities of EU MSs that replaces established methods of extradition based on public international law. This new procedure is based on principle of mutual recognition of judicial decisions in criminal law.
The challenges of EAW before national constitutional courts concerned mainly the validity of the national laws implementing it, generally because they conflict with a prohibition on the extradition of nationals contained in the national constitution.
The litigation in national courts surrounding the EAW goes right to the heart of the nature of 3P measures and how they are perceived by national constitutional courst.
In Germany the Constitutional Court made decisions which made it clear that the differences between EU and EC law remain very much in place.
In Poland the Constitutional Court considered whether 3P measures have supremacy over national law, as a matter of EU law. It is clear from the judgement that there is growing confusion on boundaries between EU and EC law.
The Czech Court was also hesitant as to the position of 3P law in the MS’s legal order. It did manage to reconcile the national implementation law with the constitution through interpretation.
None of these countries referred the case to the ECJ.
Finally, in Belgium, the validity of the Framework Decision itself was questioned and the case was referred to the ECJ under Art 35 TEU to assess the validity of the framework decision against EU human rights standards. This case has consistently merged Belgian and EC/EU legal principles for the purpose of interpretation. This merger ensures that there is no discrepancy between EC/EU law and Belgian law.
The uncertainty in this field was not dispelled by the ECJ. The Court reflected only on the question submitted by the Belgian court, ie the compatibility of the framework decision with EU human rights standards. No attempt was made at clarifying the status of 3P law fully. The ECJ has made a rather confusing statement that MSs, like the institution of the Union, when implementing Union law ‘are subject to review of the conformity of their acts with the Treaties and the general principles of law’ – Court seems to be saying that also in 3P, the Treaties and the general principles of law have a certain degree of primacy over national law, presumably at least as regards respect for fundamental rights. Use of the words ‘subject to review’ brings a question – who is going to carry out this review? Since there are no infringement proceedings in the 3P the obvious candidates are national courts.
At least in theory, the ECJ can declare the primacy of the whole of 3P law over the whole of national law (if asked at some point by one of the national courts). This would probably be done in manner different to Costa and Simmenthal where several arguments spoke in favour of a strong principle of primacy in 1P as most of these are, arguably, not yet fully applicable to the 3P.
STANDING STILL: THE FUTURE WITHOUT LISBON TREATY
Gradual changes in the nature of 3P measures may never be that they have identical effect to 1P ones, given the direct effect is explicitly barred by the Treaty; but it may be that these measures end up being treated as having primacy over national law, as a matter of EU law.
Under the 1P, control has been taken out of the hands of national courts and given to the ECJ. CF 3P measures, which were treated as supreme under the current judicial arrangements, control is taken away from the national level without being taken up to the EU level.
In the 3P, the ECJ may give preliminary rulings in relation to validity and interpretation of framework decisions and decisions and in relation to the interpretation of conventions. However, the ECJ’s jurisdiction is voluntary and varies among MSs. There is no infringement action against a disobedient State, nor damages action against the Union institutions for 3P acts.
Consistency across Union (as suggested in Costa) was one of the main reasons behind privacy in the 1P. It can be argued that the same reason- achieving consistency – spread in favour of extending primacy to the current 3P. It is, however, submitted that doing so would not achieve the desired effect because the competence of the Court to review measures indirectly through the preliminary ruling procedure varies among the MSs.
It can be argued of course, that no extending supremacy to the 3P does not serve consistency either, since MSs are able at the moment to adopt inconsistent national rules (as there is no principle of primacy)
The author argues that without undergoing a treaty reform, the 3P measures are not ready for the full-blown application of the EC principle of primacy.
THE LISBON TREATY
The ToL unifies 1 and 3P, doing away with the distinction between EU and EC law. Thus, all the measures adopted by the Union will have the features of current EC law (inc. Primacy). This goes with politically and constitutionally necessary changes, including the extension of the ‘normal’, comprehensive system of judicial control.
ToL will allow national courts to resort to the ECJ in the same circumstances as they do at present in the 1P.
CONCLUSION
The ToL is proposing changes in the nature of the 3P (from public international to EC law) as part of a more general reform that also addresses the problem of judicial protection and therefore avoids the highlighted problems.
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