There lies a sensitive relationship between the EU and national constitutional laws. The nature of the relationship is not only sensitive, but it also has susceptibility to growing complex. Federal judges ought to face these complexities when they deal with the distribution of the right issues, as these issues exhibit a significant nexus with the EU law. The national constitutional courts bear the bar due to the presence of the European and national judges, which have to implement both the EU and constitutional laws at the same time. Although generally, the EU and the national constitutional areas exhibit synchronization, the generated results are not always the same, but they can be compatible to go along with each other. However, there arises a situation where divergence is observed between the EU and the national laws; this tense situation arises incompatibility and conflicts between both bodies. One of the prime reasons for the conflict is that each member body within the EU establishes its national constitution that provides a different level of rights to the citizens.
In contrast, legal orders for the European Union are based on the sense of primacy, unity, and the efficacy of the law. It is usually decided by the member state to which extent the EU laws will be applicable. The applicable precedence of the EU over the respective national legislation is also agreed by the national supreme courts. The nature of the conflicts can be varied; most often, the dispute arises when the level of protection and fundamental rights awarded to the citizens are mismatched. EU usually grants more rights than national constitutional laws. The conflicts like these preclude protection of rights. On the contrary, sometimes the national legislation provides more powers to the general public than the EU. Observing national standards hurt the unified law approach of the EU.
The primary of European law is a governing principle for the situations where there is a conflict between the national legislation and the EU legislation. In such circumstances, the EU law has prevailed, and the member state national laws are set aside. This principle was devised by the European court of justice, and it has settled all the disputes between the national constitutions and the EU.
Over time, the conflicts between the national constitution and the EU law were rare, but the fact is the discrepancy in the rights granted has arisen the disputes. The disputes have undoubtedly challenged European integration and have also tested the flexibility of the European legislative structure. Through the experience, the notes can be taken that there could be four ways to settle the conflicts.
The UK, as a member country, has always experienced tension in reconciling the traditional parliamentary sovereign with the precedence of EU law. The European communities act in 1972 provided the member countries with the EU laws that to put into legal consideration. Also, the 2(4) section of the act highlights that the UK parliament is not authorized to legislate in a way that is contrary to the EU. Also, the doctrine of supremacy of these laws has provided EU precedence over the national legislation. While entering the EU, member state voluntarily transfers some of their sovereign rights to the institution of the EU, same as the UK has agreed to implement the EU law following the national laws, and it must have to misapply UK laws if there comes a discrepancy in EU laws and UK parliament laws. Although the UK has agreed, nonetheless, tension is evident. At any instant UK can get back its parliament sovereignty once it repels it from section 2 of the 1972 act.
In December 2017, the chamber issued a ruling regarding the limitation period in criminal proceedings. The committee used the Tarrioco judgment (Case C-105/14) as a reference, which stated that members should combat fraud through deterrent measures for the well-being of the financial interest of the EU. The Italian constitutional court expressed their concern in Tarrico ii that removal of the time bar for the prosecution will affect their enshrined constitution of legality, according to which the penalties on the guilties will be determined by the law and could not be retroactive. The court observed that persisting the decision would be non-compliant with article 325, so in any such cases, the national courts were not obliged to remove the limitation period.
The first and foremost choice is to apply the law to the national legislation in harmony with the EU, as per directed by the court of justice. The federal judge can also apply EU law by keeping it in balance with the national legislation, which means enforcing the law under the tag of “constitutional identity.” Another option that can do wonders is the preliminary reference in an attempt to convince the EU court to revise the law to ensure a greater harmony of EU law with the national constitutional law. But the proposed suggestions should be in the common interest of all the people bound by the EU. The last choice available to the national judge is to pursue disobedience and non-compliance with EU laws. In very exceptional circumstances, this can be the last resort.
Q2: “…the condition of admissibility must be interpreted in the light of the fundamental right to effective judicial protection…” (T-458/17 Shindler v Council of the European Union ECLI: EU: T: 2018:838 para 76)
To what extent does the jurisprudence on Art 263(4) TFEU (Art 230(4) EC: Art 173(4) EEC) admissibility requirements reflect in practice the above quote?
In the first paragraph of article 263, TEFU majorly identifies the European Union act; this initial chapter serves as the subject matter for annulment action before the Courts of the European Union. These are legislative acts and binding acts. The binding acts intend to produce the legislative effects, but with the inculcation of the third party; moreover, these binding acts focus on the individual acts or the acts having a general application. For addressing the rights of the natural and the legal person for proceeding with their case, the first two limbs of article 263 TEFU will provide the referencing legal binding effect. Another thing to be noted here is that the term “act” in those two provisions is legislative jargon that covers both individual and general application acts. The treaty of Lisbon added another fourth paragraph to article 263 TEFU, which served as a third limb. This third limb proved to bring relaxation in the conditions of admissibility for annulment. This addition caused the effect that the admissibility of the actions for annulment was not an individual concern, which was initially laid down by the second limb. Thus this addition rendered some legal actions possible even against the regulatory acts set by the European Union. Additionally, these are the actions that do not entail any implementing measure and are directly in concern with the applicant only.
Broadly realizing the notion of “regulatory act” in all the limbs of Art 263 TEFU, it is evident that the third limb is restricting the scope because in the previous two limbs, the “act” was the prevailing concept. Thus the third limb poses more restrictions in the characterization of the types of measures a person should seek for having annulment.
Furthermore, it is also evident that while forming the constitution for Europe, Article III‑365 (4) suggested alteration in Article 230 EC’s fourth paragraph. This action was purely focused on bringing the extension in the admissibility condition for seeking the annulment action. The usage of the word “regulatory act” made it feasible to identify the acts which can further lead to legislative subjection. Thus this amendment suggested a restrictive approach to the relations between individual acts and legislative acts. However, the direct and the individual concern terms remained applicable in the way they used to be in the first two limbs.
The sole purpose of this significant alteration from the right of the personnel to institute the legal proceeding was to bring the persons under less stringent conditions. Another salient point is that article 263 TEFU’s fourth paragraph stated that the content of the situation for which the person seeks the act of annulment should be of individual concern. This point was not altered by the treaty of Lisbon. This concept did not nullify the individual concern in the scenarios in which the contested act affects both the personnel due to any specific attributes which make them peculiar. Using the methods of interpretation suggested by the EU, the general court can rule on the scope of “regulatory actions,” as indicated in the fourth limb. The general courts are advised to run in a way that does not compromise on the condition of admissibility.
The above discussion raises the question of whether article 263 TEFU respects the principle of effectiveness or not. Whether these indirect actions can safeguard judicial protection where direct action is not available. The thought of this judicial protection by article 263 TEFU gives rise to a dilemma where a party breaches the law and, in return, challenges it. This particular situation will occur when the measure of the challenge is self-executing, in such a way that there are no national legislation measures that could be challenged in the domestic court. This situation also provides no possibility of challenging these norms in front of EU courts. Thus the people suffer from the invidious position where they are urged to choose between either breaking the law or establishing compliance with the unlawful norm.
Institutionally the courts cannot challenge the dilemma article 263 TEFU arises in the aspect of judicial protection. It is because if they do so, EU courts will be burdened to verify whether or not the party is credible to bring their case before the national court, and this does not lie in the framework of EU competency; EU courts do not comply with the domestic laws but deal with EU laws. Also, jurisdictionally, the courts cannot overlook the admissibility criteria in article 263(4). The second and the third head must be satisfied completely, but there is no additional head for addressing the exceptional cases. And these exceptions are the pivot point of generating a dilemma. Furthermore, the principles of jurisdiction cannot revoke the treaty text.