First class EU law essay example: Which court provides the appropriate forum for deciding the constitutional relationship between EU law and national law in the event of conflict between norms?

This essay will argue that the CJEU, as opposed to the supreme courts of national legal systems, provides the more appropriate forum for deciding the constitutional relationship between EU law and national law in the event of conflict between their norms (henceforth the More Appropriate Forum Thesis, or 'MAFT'). To show the correctness of the MAFT, this essay will make three arguments. First, it will argue that the CJEU's power to decide the aforementioned constitutional relationship is necessary to fulfil the objectives of the European Union. Second, it will argue that concerns about the implications of this power for democratic legitimacy can be met while remaining committed to the MAFT. And third, this essay will argue that challenges to the MAFT from constitutional pluralism, though raising important points about the benefits of cooperation between national and Union courts, do not succeed.

The CJEU as the appropriate forum

The CJEU provides the appropriate forum for deciding the constitutional relationship between EU law and national law in the event of conflict between their norms. This is first and foremost because the CJEU needs to be able to authoritatively decide on questions involving such conflicts if the Union's objectives are to be realised. The argument here has both instrumental and principled limbs. This was made clear in the Costa case, in which the ECJ first made the more strictly instrumental argument that the specific Union objectives of cooperation and integration could not be achieved if member states (through their courts) could simply deny effect to norms of EU law where these conflicted with their own national law. But the practical importance, and even the necessity, of EU law primacy is also accepted in national courts. Even the traditionally recalcitrant German Federal Constitutional Court granted in the Honeywell case that "[t]he law of the European Union can only develop effectively if it supplants contrary Member State law." Indeed, and to take an obvious example, guaranteeing a European single market would prove impossible if one member state (henceforth 'MS') could unilaterally decide, via its courts and against EU law, to implement tariffs on the products of another MS. Even before any such drastic regulatory divergence should arise, the very fact of uncertainty as to the locus of authoritative judicial resolution of conflicts between EU law and national law would undermine the benefits the Union can bring about–on an unprecedented scale and across different legal cultures–as a system of law: namely, security and predictability in social and institutional relationships. These instrumental reasons make a compelling case for (a) having a single, authoritative forum to decide conflicts arising from the constitutional relationship between EU law and national law, and (b) finding such a forum in the Union's courts.

There are also principled reasons for endorsing (a) and (b). In fact, the ECJ in Costa also raised such non-instrumental arguments in defence of the primacy of EU law and of its (the ECJ's) role in guaranteeing that primacy. The Court there argued that allowing MS national law to unilaterally prevail over EU law would result in disparities and discrimination in the application of EU norms between different MSs–an outcome which would run counter to the principles of equality enshrined in the Treaties. The demands of fair treatment as between the MSs, then, add to the strong prima facie case for finding in the Union's courts the appropriate forum in which to decide constitutional conflicts between EU law and MSs' national law. Moreover, the fact that these demands are guaranteed protection in the provisions of the EU Treaties, to which MSs voluntarily subscribed and continue to subscribe, further strengthens the MAFT by shielding it from criticisms that the CJEU is lacking in legitimacy and so inappropriate to decide constitutional conflicts between EU law and national law. This last issue of the CJEU's legitimacy is the object of the next section.

The CJEU's legitimacy and the EU's democratic deficit

In spite of arguments to the contrary, the CJEU can be the legitimate–and so appropriate–forum for deciding the constitutional relationship between EU law and national law in the event of conflict between norms. Although, as mentioned above, national constitutional courts have largely accepted that the primacy of EU law is necessary to the functioning of the EU, they have been reluctant to endorse the CJEU's understanding of the scope of EU law primacy: they, national supreme courts, remain the legitimate ultimate arbiters of the relationship between EU and national legal norms. France's Conseil d'État, for example, has remained committed to the view that EU law sits lower than the French Constitution in the hierarchy of norms, and that it is for the French constitutional court to police this hierarchy. Likewise, and adopting a position similar to Germany's FCC's own, the Italian Constitutional Court decided in the Frontini case, and has reaffirmed more recently in its Order no 24/2017, that it will review EU institutions' actions in order to guarantee they respect both fundamental rights and the basic principles of Italian constitutional arrangements.

In spite of these challenges, however, the CJEU is not without legitimacy as a forum for deciding on the constitutional relationship between EU and national law. It derives authority first and foremost from the Treaties enabling its work. To be clear, there was no explicit provision in the EEC Treaty establishing EU law primacy; it was developed as a legal doctrine by the Union's courts starting in van Gend en Loos. Having said that, Article 4(3) TEU, for example, does oblige MSs and Union institutions to cooperate in achieving Treaty objectives and to refrain from impeding each other's work to that end. Combined with Article 19 TEU and Article 267 TFEU, this provision can reasonably ground in the Treaties the CJEU's authority to authoritatively resolve constitutional disputes. Moreover, and as the CJEU itself argued in Euro Box Promotion, by subscribing to the Treaty of Lisbon and to its annexed Declaration 17, MSs expressed their political acceptance of the primacy of EU law as articulated by the CJEU throughout its decisions since van Gend en Loos. The CJEU's jurisdiction, then, remains consistent with the principle of conferral, bolstering its legitimacy as an appropriate forum for the resolution of constitutional conflicts between EU and national law. Additionally, the CJEU's legitimacy also stems from its output: that is, from its capacity, as seen in the previous section, to work toward more certain organisation of social and institutional relationships across culturally and otherwise legally diverse MSs. As such, the CJEU provides an appropriate forum for deciding constitutional issues of EU and national law.

Nevertheless, it is important not to underestimate the merits of arguments concerned with the EU's democratic deficit: so doing could undermine the very work of the CJEU to achieve the Union's objectives. It may well be, as Grimm contends, that the CJEU's insistence on the primacy of EU law exacerbates the EU's lack of democratic credentials. This challenge can be answered. If indeed the EU suffers from such a deficit, the solution is not to deprive the CJEU of its role as a forum for deciding on constitutional conflicts between EU law and national law. As argued above, that would make the Union's functioning impossible. Instead, reform should centre on granting more power to the directly elected institutions of the EU, chiefly the European Parliament, and to national parliaments. It is not the CJEU that compromises the EU's legitimacy but other elements of the Union's constitutional arrangements. The CJEU's appropriateness as a constitutional forum for EU and national law, then, survives legitimacy-based challenges.

More than one appropriate forum?

Although the appropriateness of the CJEU as a constitutional forum depends to some extent on its capacity to incorporate and respect the views of national courts, it should remain the ultimate authoritative forum. Article 4(2) certainly provides grounds for respecting national courts' positions on issues relating to the relationship between EU law and national law. Beyond this principled argument, we can also maintain that cooperating with national courts' interpretation can be instrumentally justified: domestic courts may well have a better understanding of the implications of certain provisions of EU law for their own national constitutional arrangements. These points, however, need not lead to the conclusion that having a regime of different constitutional forums is appropriate. There are situations in which we need, to ensure the benefits of the law as a system of social and institutional guidance, a single authoritative ruling on a given issue. National constitutional courts may here be useful and appropriate in i) raising issues to the CJEU which the CJEU may not have otherwise treated (or not as thoroughly); and ii) raising those issues to national governments and legislatures, so that these institutions may then find a political solution to the given constitutional conflict between EU law and national law. But we will sometimes need a single authoritative decision on an issue; and the CJEU, for the reasons developed in the previous sections, should remain the source of such authoritative decisions as to the relationship between EU law and national law.

In conclusion, there are both instrumental and principled reasons why the Union's courts constitute the appropriate forum for deciding the constitutional relationship between EU law and national law in the event of conflict between norms. These reasons remain compelling even if the EU can be shown to suffer from a democratic deficit; and in fact they add to the case for reform of other aspects of the EU's constitutional arrangements. Although national courts cannot be held to provide additional authoritative forums for deciding certain constitutional conflicts between EU law and national law, they can profitably contribute to the CJEU's work and more broadly to changes in the EU's constitutional arrangements.