Conflict and Cooperation between the European Court of Justice and... Constitutional Courts: The Mangold and Honeywell cases

Conflict and Cooperation between the European Court of Justice and the Member States
Constitutional Courts: The Mangold and Honeywell cases
Abstract
This paper seeks to provide an analysis of the reception of the Mangold judgment, singling out specific
issues debated by researchers and legal experts (among them: legitimate expectations, horizontal effects of
directives, binding effect of general principles, subsidiarity) and comparing the different views. Particular
attention is given to the issue of balance of power between legislature and judiciary, and between Member
States and EU, on which many commentators have focused their discussions. However, this paper aims to
highlight that the Mangold and the subsequent Honeywell decisions should not be read so much from a
“power-centered” perspective, as some legal analysts did in the past, but rather from a “rights-centered” one.
Introduction
The role of courts is to settle legal disputes by interpreting and applying the law, and declaring the rights of
the parties. If, in the course of a proceeding, a national court has doubts about the constitutionality of a
statute, it stays the proceeding and submits a request to the Constitutional Court for a preliminary ruling. If
the Constitutional Court deems that the contested statute is unconstitutional, it declares the statute null and
void. Vice-versa if the contested statute was enacted by a Member State acting within the scope of the
European Union (hereinafter: EU), the national court submits its request to the European Court of Justice
(hereinafter: ECJ) for a preliminary ruling. If the ECJ considers that the statute does not adhere to EU law, it
orders the national court to set it aside, without awaiting a ruling of the respective Constitutional Court1.
However, there may be differences between the rights affirmed in the Treaties and those enshrined in the
Member States’ Constitutions, resulting in a conflict of norms to be applied at the proceeding at issue. In this
case, a Constitutional Court, who has the role of guardian of the Constitution, may apply specific
constitutional norms, going so far as to order a national court to set aside the ECJ’s judgment. Such a
decision would have dramatic consequences: as the Treaties establish that EU rules require homogeneous
application in all Member States, this kind of judgment taken by a Constitutional Court of a Member State
could be assimilated to a rejection of the Treaties.
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The Mangold decision, a far-reaching and widely debated judgment of the ECJ, gave origin to a problem of
the kind cited above. Its consequences were of utmost importance not only in the field of labor and
employment, but also in those of fundamental rights protection, and international constitutional law.
The main purpose of this paper is to illustrate the different lines of reasoning carried on by researchers and
judges in relation to the Mangold decision, highlighting the hierarchy of rights and freedoms underlying their
conceptions.
1. The Mangold judgment
1.1 The case before the Court
In 2003, the 56-year old German lawyer Werner Mangold brought an action against his employer, Mr.
Helm, before the Munich Labor Court. He argued that the fixed-term employment contract they had signed
in June 2003, although complying with the rules set out in the German statute Gesetz über Teilzeit und
befristete Arbeitsverträge (hereinafter: TzBfG), was invalid under European law.
1.1.1 The TzBfG
As a general rule, employment for an indefinite duration grants employees many more rights than fixedterm employment. In order to protect employees against unemployment and favor employment for an
indefinite duration, the TzBfG (Gesetz über Teilzeit und befristete Arbeitsverträge2), a statute enacted on
21.12.2000, and partially amended in 2003, set strict rules about employment contracts stipulating a fixedterm.
However, noticing that unemployment was particularly high among elderly workers, because of the
employers’ reluctance to hire elderly personnel, the TzBfG also envisaged specific provisions aiming at
favoring the re-entry into working life of this class of workers, giving employers a measure of flexibility in
an otherwise rigid labor market. Since previous experience had shown that by choosing fixed-term
employment relationships elderly workers increased their chances of being hired, the TzBfG provided that a
fixed-term employment contract should not require any objective justifications if, when starting the fixedterm employment relationship, the employee had reached the age of 58; this age was reduced to 52 in 2003.
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1.1.2 The Directive 2000/78/EC
On 27.11.2000, the Council of the EU adopted the Directive 2000/78/EC, which established a general
framework for equal treatment in employment and occupation. In its preamble, the Directive cited a number
of documents and international agreements on which it based the framework. Part of the cited documents
prohibited discrimination in general, and part specifically prohibited discrimination in the field of
employment and occupation.
Concerning the date for transposition, Article 18 stated that the Member States should adopt the laws,
regulations and administrative provisions necessary to comply with the Directive by 2.12.2003; however, in
order to take account of particular conditions, the Member States might have an additional period of three
years from 2.12.2003 in which to transpose the provisions of the Directive.
1.1.3 The facts
In the contract they signed in June 2003, Mr. Mangold and Mr. Helm, two lawyers, agreed that the age of
the worker was the sole reason for the fixed term of the contract3. Before reaching the end term of his
contract, Mr. Mangold brought an action against Mr. Helm before the Munich Labor Court. He argued that
the limitation of the term of the contract set out was invalid under Community law, inasmuch as, by
discriminating workers on grounds of age, it was in conflict with clauses 2, 5, and 8 of the Directive
1999/70/EC, and with Article 6 of Directive 2000/78/EC, which established a general framework for equal
treatment in employment.
Assuming an infringement of the Directive 2000/78, which was aimed at promoting equal treatment in
employment, the Labor Court stayed the proceeding and referred the case to the ECJ for a preliminary ruling,
asking whether the statutory provision exempting employees aged 52 and over from limitations to the
conclusion of fixed-term contracts was compatible with Community law.
1.2 The Mangold decision
On 22.11.2005 the ECJ issued its decision on Mangold, ruling that differentiating among workers on
grounds of age, unless justified by the specific provisions of Directive 2000/78/EC, constitutes a direct
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discrimination prohibited under European law, and ordered to the Labor Court to set aside the TzBfG. The
court recognized that Member States enjoy broad discretion in choosing their employment policy, but
considered taking the age of the worker concerned as the only criterion for the application of a fixed-term
contract of employment as a negative result, due to the lack of job security.
2. Interpreting the judgment
2.1 The issue of legitimate expectations
Opponents of the Mangold decision argued that the ECJ did not come up to the expectations of the
defendant, who entered the employment relationship relying on the law then in force.
In effect, the principle of protecting legitimate expectations is firmly embedded in the Community legal
order4, and a general principle of respect for legitimate expectations can be found in all the legal systems of
the EU's Member States (Schwarz 2002). However, the individual’s interest in relying on a given legal
situation does in principle not prevail over the general interest in changing this situation by means of acts
issued by the legislative, administrative or judicial apparatuses. As a corrective measure, in order to preserve
the principle of legal certainty, most legal systems grant a temporary protection to the legitimate expectations
of individuals who had taken decisions based on the law then in force. In Germany, for instance, legal
certainty and legitimate expectations are protected by the Constitution (articles 20 and 28); this led to a
considerable expansion of the protection of legitimate expectations in legislative acts and case-law.
On the contrary, the ECJ, although holding in its case-law5 that the protection of legitimate expectations
constitutes a “superior rule of law”, carried out a more restrictive conception of this principle (Bebr 1981)6.
These different conceptions of legitimate expectations in European Community (hereinafter: EC) law and
German law can lead to conflicts between the highest courts.
In fact, the Solange I doctrine, enunciated in 1974 by the German Federal Constitutional Court
(hereinafter: FCC) in its decision7 on a case judged by the ECJ8, claims that, since the legitimate expectations
are protected by the Constitution, the FCC has the task of ensuring their vindication, if needed even
contrasting the ECJ. Considering, on one hand, that the protection of fundamental rights offered by the EC
law was not equivalent to that guaranteed by the German Constitution, and, on the other hand, that
fundamental rights form an inalienable feature of the German Constitution, the FCC reserved the right to
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review the compatibility of Community law with the German Constitution, in order to guarantee that the
rights which German citizens enjoyed under the German Constitution were not lessened under EC law
(Colneric 2013).
Regarding Mangold, as legitimate expectations are protected by the German Constitution, and, as provided
by Article 220 of the Nice Treaty, Member States Constitutions cannot be reviewed by the ECJ, it may be
asserted that the ECJ acted ultra vires because it undermined a right protected by the German Constitution.
From a different point of view, it can be considered that putting individuals’ legitimate expectations before
the general interest would undermine the fundamental principle of equality, and, even more important, that
applying different laws in different countries would undermine the uniform application of the EC rules in all
Member States.
2.2 The issue of horizontal direct effect
Another question which raised heated debate concerns the doctrine of horizontal direct effect of directives,
which asserts that an individual can invoke a provision of a directive in relation to another individual,
bringing a claim before a court.
However, as the wording of Article 249 of the Treaty establishing the European Community (hereinafter:
TEC) sets a difference between the direct applicability and binding effect of regulations and those of
directives, many researchers maintained that directives cannot have horizontal direct effect (Foyer 1979;
Barents 1982; Stein 2010; Prechal 2005). In the opinion of these researchers, directives are only binding on
the Member States to whom they are addressed, and require a positive action by the national authorities in
order to be transposed. As a consequence, directives do not impose immediate obligations on individuals.
An analogous conception underlays some decisions of the French Conseil d’Etat9 and German
Bundesfinanzhof (BFH)10, which stated that directives are incapable of creating legal rules. The ECJ itself
ruled against a horizontal direct effect of directives, in Marshall v. Southampton11 and subsequent case law12.
Regarding Mangold, as Article 249 TEC establishes that directives are binding upon Member States but
cannot impose obligations upon individuals, it may be asserted that contravening this Article the ECJ acted
ultra vires.
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Other scholarly works upheld the doctrine of horizontal direct effect of directives, describing the
arguments of its opponents as formalistic. These researchers claimed that: i) the Treaty should not be
interpreted literally (Tridimas 1994); ii) the Court’s jurisprudence on direct effect, although referring to
Treaty’s provisions, did not explicitly assert that direct effect is dependent on the legal character of the
legislative act or the nature of the legal relationship at stake (Barents 1982; Prechal 2005); iii) following the
doctrine of “duty of consistent interpretation” held by the ECJ, after the expiry of the directive’s
implementation period, the interpretation of national law in horizontal situations shall rely upon the specific
directive13, even if the national statute predates the directive14, or the directive itself is either not yet
implemented15 or inadequately implemented16.
2.3 The issue of the general principle of non-discrimination on grounds of age
The court’s reasoning in Mangold was strongly based on the validity of a general principle of nondiscrimination on grounds of age. For this reason, in order to assess whether the ECJ conducted its
argumentation in a convincing way, I will focus on the following basic issues:
- did the reliance on general principles concerning fundamental rights characterize the tradition of the ECJ’s
decisions? If so, did the ECJ assign them a binding effect?
- did Community acts recognize a general principle of equality?
- can, as stated in the Mangold decision, a principle of non-discrimination on grounds of age be found in the
constitutional traditions of the Member States and/or in international agreements to which the Member States
are signing parts?
In order to focus on the first issue, it is necessary to examine some previous judgments of the ECJ. In its
early days the ECJ refrained from affirming that general principles concerning fundamental rights were
protected under Community law (Toner 2004). This could derive from the will to ensure a high respect
towards the specific values of each national system, and therefore to maintain the right balance between
Community and Member States, at a time when the ECJ was beginning to conceive the European Economic
Community (hereinafter: EEC) as “new legal order of international law”17. However, after a few years, the
positive co-operation among national and European institutions allowed the ECJ to develop its own approach
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to fundamental rights18, stressing that only Community legislation and acts complying with Community law
protecting fundamental rights could be considered lawful19 (Picazo 1991).
Afterwards, the ECJ extended its competence, in order to review the Member States legislation which
implemented Community law for compliance with Community law fundamental rights20. At first it adopted
an exclusionary approach, excluding its competence to review the acts of the Member States when these
were acting outside the sphere of Community law21, later it adopted an inclusionary approach, asserting its
competence to review the acts of the Member States when these were acting within the scope of Community
law22.
In the ECJ case-law, the wording “acting within the scope of Community law” includes either the
situations in which a Member State is implementing an EC measure23, or those in which, being based on
specific provisions of the Treaties, public interests, or mandatory requirements, a Member State is seeking to
derogate from Community law rules or fundamental freedoms24.
Summing up, for at least twenty years the ECJ has considered general principles referring to fundamental
rights to be a primary source of law in the EC, even independent of the Treaties (O’Leary 1995).
The second issue concerns the acknowledgement of a general principle of equality in Community acts. A
principle of non-discrimination in respect of gender belongs to the fundamental rights of Community law 25.
The Preamble of Directive 2000/78 cites as sources for the general principle of equality various international
instruments and constitutional traditions common to the Member States. Moreover, the ECJ has explicitly
asserted that the EC courts shall interpret fundamental rights taking into account the decisions taken by the
European Court of Human Rights26.
In the Treaty of Amsterdam many articles promote equality; even more relevant, a general principle of
non-discrimination is included in the Treaty establishing a Constitution for Europe. Although not ratified, it
was signed in Rome in 2004, and can therefore be considered as an ordinary treaty of international law
(Schmidt 2005). Moreover, AG Tizzano asserted in Mangold that a general principle of equality is protected
under European law, and suggested the court to base its decision on it.
As regards the third issue, concerning specifically the general principle of non-discrimination on grounds
of age, it shall be mentioned that, although only two Member States’ Constitutions (the Finnish and the
Portuguese) include this peculiar principle, a specific prohibition of discrimination on grounds of age is
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included in Article 6a of the Treaty of Amsterdam (1999), and that all Member States sustained this
principle, including it under Article 21 of the European Charter of Fundamental Rights (hereinafter: ECFR)
(2000).
Those who, on the contrary, assume that in Mangold the ECJ should not have based its judgment on a
principle which is not explicitly spelt out in the Treaty, may conclude that in taking this decision the ECJ
acted ultra vires.
2.4 The issue of subsidiarity
Another of the themes which stirred heated debate among scholars discussing the Mangold decision was
subsidiarity, which since the 1970s has been considered likewise to be a general principle of law (Dworkin
1977). The term “subsidiarity” indicates that a central authority should restrict itself to having a subsidiary
function, performing only those tasks which local authorities cannot perform effectively.
The principle of subsidiarity establishes if and how local authorities enjoy a certain degree of autonomy in
respect of the central authority; in the EC, it regulates the exercise of power in the areas in which the EC and
the Member States have a shared competence. Thus, it concerns neither those areas on which the EC has
exclusive competence, nor those which remain in the exclusive competence of the Member States.
The principle states that, if a Member State can regulate an issue effectively, the EC shall exercise
restraint; yet if the Member State is unable to achieve the objectives set out in the Treaty in a satisfactorily
way, the EC shall exercise its full powers.
It can be argued, as Craig did referring to the Lisbon Treaty (Craig 2011), that also under the TEC an act
which violates the limits of competence, exceeding the principle of conferral set out in Article 5(1) TEC, is
ultra vires. Moreover, following Craig’s reasoning, it can be argued that if the EC purports to take action in
an area where 1) it is accorded neither exclusive nor shared competence, the resulting measure will be ultra
vires and without effect; 2) it is prima facie granted power, but it violates subsidiarity, once again the action
is ultra vires.
For these reasons, a number of researchers (Gerken et al. 2009; Herzog & Gerken 2008) severely criticized
the Mangold judgment, asserting that it relied on a Directive, which, as such, had to be transposed by each
Member State following the subsidiarity principle. As a consequence, each Member State had the power to
choose the means considered the most suitable in order to achieve the desired result. The aim of the Directive
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2000/78 was to ensure all workers substantive equality; the TzBfG pursued the same goal, supporting the
adoption of specific measures aimed at enhancing the chances of employment of workers who were likely to
be discriminated on grounds of their age.
Hence the TzBfG, which prescribed an equality of outcome, did not clash with the Directive 2000/78.
However, if a conflict should be recognized between the Directive and the TzBfG, it should be resolved
considering the Directive as a mere framework, whose transposition was up to the Member State, which had
not only the duty to transpose the Directive27, but also the competence to do it considering the country’s
specific needs28.
However, arguing that non-discrimination on grounds of age and subsidiarity are both general principles of
law raises a problem, concerning which of the two should prevail in case of conflict.
3. Balancing European integration and national identity
3.1 The issue of balance of power
The role of the ECJ has provoked an intense debate within the legal academia, whose members wondered
whether the Court’s decisions should be considered mere teleological interpretations or examples of “lawcreation” by judges (Raitio 2003). Indeed, it appears indubitable that during almost fifty years the ECJ has
expanded its competences, transforming itself from a mere administrative into a constitutional Court (Aydin
2013).
During the 1960s and 1970s, in a series of landmark rulings, the ECJ set up four doctrines, by means of
which it built up its line of action as regards the relationship between the Community and the Member States
(Gillingham 2003). The doctrine of direct effect establishes that the Community “constitutes a new legal
order of international law for the benefit of which the Member States have limited their sovereign rights,
albeit within limited fields”29.
The doctrine of supremacy holds that the transfer of powers made by the Member States to the
Community, which causes a limitation in their sovereign rights, is permanent and irreversible30. The
preemption doctrine establishes that the actual enactment of an item of EU legislation ousts national
lawmaking in the area concerned (Weatherill 1994). Finally, the judicial review doctrine enables the Court to
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determine the “constitutionality” (that is, the adherence to the Treaties) of executive and legislative acts of
government and to define their respective rights and powers (Gillingham 2003).
The ECJ decisions connected with these doctrines caused concerns related to fundamental issues of balance
of power: in particular, research hypothesized a shift of power: i) from the legislature towards the judiciary;
and ii) from the Member States towards the Community (Dubois 2006; Gerken 2009).
3.1.1 Balance of power between legislature and judiciary
According to Rasmussen, judicial activism: “connotes regular judicial policy-making in pursuance of
policy-objectives which usurp the rule and policy-making powers of other branches of government”
(Rasmussen 1998).
As regards the ECJ’s judicial activism, some researchers considered it positively, arguing that the role of
the court is not merely the interpretation of the law, but also its maintenance and development. This, they
claimed, can only be achieved by means of a progressive construction of the legal order, whose gaps have to
be filled, in order to avoid the charge of denial of justice (Lenz & Borchardt 2006). In their opinion, often
courts are compelled to act as “quasi-legislators”, “negative legislators”31 (Kelsen 1928; Vorländer 2011) or
even legislators by the very nature of their function (Harvey 1978), and sometimes also by the inefficiencies
of governments and legislatures (Rodotà 1996); in particular, these scholars argued, the ECJ deemed it
necessary to develop some general principles in order to overcome the “immobility” of other organs of the
Community32, fill procedural gaps (Rasmussen 1986) or protect fundamental human rights, which are
acknowledged as core values of the Community (Cartabia 2007), and therefore shall be defended by the ECJ,
as established by Article 220 of the Treaty of Nice.
Other scholars, on the contrary, criticized judicial activism, and in particular that of the ECJ, underlining
that in this way the court promoted a shift of balance from the legislature towards the judiciary (Weiler
1994), acting as a legislator while lacking democratic legitimacy (Herzog & Gerken 2008). A similar, albeit
more cautious approach, was expressed also in the opinions of Advocate General Geelhoed33 and Advocat
General Mazák34.
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3.1.2 Balance of power between Member States and EU
The issue of balance of power between Member States and EU can be posed as question of who has the
authority to decide which competences are for the EU and which for the Member States. This issue is often
referred to as the problem of Kompetenz-Kompetenz (Pernice 2002).
Research defined the EU as a compound polity (Fabbrini 2008), in which the Member States voluntarily
delegate some competences to the Union. Instead, the areas of policy not explicitly agreed in the Treaties by
all Member States remain the domain of the latter.
This means that the Community lacks the legal power to further extend its competences; therefore, it seems
to be indisputable that the Community lacks legislative Kompetenz-Kompetenz. However, examining the
legislative and the judicial Kompetenz-Kompetenz together, the issue appears more complex, one reason
being that a Court deciding on the constitutionality or adherence to the Treaties of a norm, can be considered
to exercise competences which are at the borderline between the judicial and legislative ones (Bettermann
1982; Schilling 1995/1996). In fact, some researchers maintained that judicial Kompetenz-Kompetenz
remains with the Member States and their courts (Schilling 1995/1996), whereas others argued that the ECJ
must be the final umpire of the Community system (Weiler & Haltern 1996).
Focusing on the relationship between the ECJ and the Constitutional Courts of the Member States Craig
stressed, there are a number of questions pertaining to this theme which should be answered. Among them:
1) how far have national courts accepted the supremacy of Community law?
2) did the national courts base their acceptance of supremacy on the national constitution?
3) who should have ultimate authority to decide whether some Community action is intra or ultra vires?
(Craig 2003).
3.1.2.1 The perspective of the ECJ
Although the Treaties do not explicitly refer to the primacy of the EU legal order, the ECJ case-law
established it clearly (Oppenheimer 1994): in Humblet v. Belgium35, and Acciaierie San Michele v. High
Authority36 the ECJ argued that the primacy of Community law over national law was based on the
ratification of the Treaty establishing the European Economic Community (hereinafter: EEC) signed in 1957.
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In van Gend en Loos37 the Court stated that the EC constituted a “new legal order”, and in Costa v. ENEL38
it explicitly declared that, on the basis of Article 189 of the EEC, which states that the Treaty’s regulations
are directly applicable and binding, the Community law has primacy over national law.
In Walt Wilhelm a.o. v. Bundeskartellamt39 the Court stressed that allowing Member States to introduce or
retain measures capable of prejudicing the effectiveness of the Treaty would be contrary to the essence of a
legal system characterized by its distinctive nature, and in Internationale Handelsgesellschaft40 it made clear
that not even a fundamental rule of a Member State Constitution could, in itself, challenge the primacy of
Community law. The latter case is said to mark the claim of full supremacy of Community law (De Witte
1999).
Furthermore, in Amministrazione delle Finanze dello Stato v. Simmenthal SpA41 the ECJ established that
from the principle of primacy of Community law originates the automatic inapplicability of conflicting
national law: from this statement derives that, in the view of the ECJ, the national courts have the duty to set
aside any provision of national law which conflicts with Community law, without awaiting a ruling of the
national Constitutional Court on the matter. These views were further confirmed in The Queen v. Secretary
of State (Factortame)42.
3.1.2.2 The perspective of the national highest courts
The highest Courts of some Member States did not agree with the ECJ’s views.
In France, the Conseil d’État initially refused to accept the supremacy of Community law43. Later, it
recognized the primacy of the Community law over a prior national statute44; however it did not change the
basis of its reasoning, that international law does not have supremacy over the Constitution45. Similarly, the
Conseil Constitutionnel accepted the supremacy of Community law (Richards 2006), but stated that
Directives which conflict with express constitutional provisions, particularly those protecting fundamental
rights and freedoms, can neither be transposed nor enter into force46. In Sarran, Levacher et autres47, and in
Syndicat National de l’Industrie Pharmaceutique48, the Conseil d’Etat declared that neither international
treaties nor EU law have supremacy over the French Constitution or provisions of a constitutional nature
(Craig & De Burca 2003).
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In Italy, the Constitutional Court ruled in 1973 that it would take on judicial review on Community law, in
order to verify its respect of the fundamental principles and rights enshrined in the national Constitution 49. In
198450 the court reiterated its assertion to be the sole court entitled to determine the Kompetenz-Kompetenz
issue, and in 198951 it established again its determination to verify, by means of constitutional review, the
Community law’s respect of the national fundamental principles and rights.
Also in Spain the Constitutional Court denied supremacy of Community law in the national legal order,
affirming its own Kompetenz-Kompetenz, and declaring that only the Constitutional Court itself has the
power to invalidate or nullify national law; however, the Court softened the tone of its wording, stating that it
was “scarcely conceivable” that it had really to exercise this power towards Community law52.
The Czech Constitutional Court too affirmed its own Kompetenz-Kompetenz, asserting that the power to
determine whether the Union institutions are acting within conferred power belongs to the Constitutional
Court itself53.
The Polish Constitutional Court, deciding on the Polish Accession Treaty, clearly refused to assign it
supremacy over the national Constitution54, and also in Denmark the Supreme Court reaffirmed its role as
guardian of the Constitution, establishing that the power to adopt measures conflicting with the Constitution
cannot be delegated to international organizations, and that national courts retain the power to review
Community law in order to verify its adherence to the Constitution’s fundamental principles, declaring its
inapplicability in case of conflict55.
In Germany the FCC reacted against the ECJ’s decisions, denying the principle of supremacy and
maintaining its will to ensure adequate protection of fundamental human rights. In 1974, reacting to the ECJ
judgment on Internationale Handelsgesellschaft56, the FCC declared that until Community law has proven its
capacity to provide a level of protection of fundamental rights equal to that provided by the German
Constitution, the latter would prevail over Community law57.
In 1986, noting the steady enhancement of the standard of fundamental rights protection in Community
law, the FCC stated that, as long as this standard remained commensurate to the German one, the FCC itself
would refrain from reviewing Community law58. However, the court reaffirmed its right to do this.
In 1993, in reviewing the Maastricht Treaty in the light of the German Constitution, the FCC stressed that,
as the Member States are the masters of the Treaties, the Court itself would exercise its jurisdiction on the
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applicability of secondary Community law. However, it also pointed out that it would restrict its acting to a
general guarantee, to be performed in a relationship of cooperation with the ECJ59.
This point of view was confirmed in 199760 and 200061.
In 2005 the FCC reaffirmed its view about the reciprocal position of the German Constitution and
Community law, declaring void measures implementing the European Warrant Act on grounds of their
violation of Article 16.2 of the Constitution.
3.2 The issue of national identity
National courts generally hold that European law’s validity in the domestic legal order is based on explicit
provisions included in the national Constitutions; for this reason they are inclined to consider unlawful each
alteration of the fundamental principles enshrined in their own Constitution.
Already in 1973 the Italian Constitutional Court held that there are precise counter-limits to the limitations
of sovereignty allowed by Article 11 of the Italian Constitution: EU law may slightly derogate from the rules
set in the latter, but cannot violate its fundamental principles and the inalienable rights of persons (decision
n. 183). This view was reiterated in 1984 (decision n. 170). In 1989 (decision n. 232) and 2006 (decision n.
454) the court affirmed its right to control the consistency of Community secondary legislation with the
fundamental principles of the Italian Constitution, in order to protect the inalienable human rights which
constitute the core of the Italian constitutional identity. In 2005 the Consiglio di Stato ruled that no
preliminary ruling has to be asked to the ECJ when the national Constitutional Court had already decided on
the same issue62.
In 2007 the Treaty of Lisbon was signed: Article 4(2) states that: “the Union shall respect the […] national
identities [of the Member States], inherent in their fundamental structures, political and constitutional”.
This statement is confirmed in the Preamble of the ECFR, which was conferred to the same legal value as
the Treaties, and thus declared binding.
As a consequence, when the Treaties came into force, the Constitutional Courts of some Member States
restated the inalienability of the fundamental values of the respective Constitutions, and affirmed their own
role as their guardians. In 2009, in its Lisbon judgment, the FCC re-affirmed its power to protect the German
constitutional identity, undertaking an “identity review” of EU acts63. In 2010, the French Constitutional
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Council stated that EU directives would be transposed in the domestic legal order only if not conflicting with
the principles set on the basis of France’s constitutional identity64.
In this way each Constitutional Court performed its role of guardian of the respective Constitution,
protecting the national identity and core values against potential threats with appropriate measures. If the
Constitutional Court identifies a potential threat in a decision of the ECJ, the Court could go as far as
ordering the national Court to set the ECJ’s judgment aside. However, as EU rules require uniform
application in all Member States, the decision of a Constitutional Court to set aside a ECJ judgment could be
assimilated to a rejection of the Treaties.
This might pose a far-reaching problem, which the FCC actually had to face in deciding the Honeywell
case65.
4. A move towards the future
4.1 The Honeywell decision
On 6.7.2010 the FCC issued its decision on the Honeywell case66, a constitutional complaint brought by an
enterprise which between 2003 and 2004 had concluded fixed-term employment contracts with thirteen over52-year-old employees.
On the basis of the Mangold decision67, one of these thirteen employees, the plaintiff of the original
proceeding, asserted the inapplicability of the fixed term of his employment contract, and successfully
brought his claim before the Federal Labor Court. As the judgment of the Federal Labor Court was based on
the Mangold decision, the enterprise brought a constitutional complaint, asserting that in Mangold the ECJ
transgressed the boundaries of interpretation of Community law, extending the Community competences and
further developing Community law.
The FCC declared the complaint admissible but unfounded, and built its lines of argument both on EU
secondary and primary law.
As regards to the line of reasoning based on EU secondary law, the FCC, referring to ECJ’s previous caselaw (Inter-Environnement Wallonie68; ATRAL69), ruled that even in the period granted for the transposition of
a Directive, the Member States are obliged to refrain from taking any measure liable to seriously
compromise the attainment of the result prescribed by that Directive (para. 77). Examining the issue of the
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advance effect of Directives on private parties, which the ECJ had denied in previous case-law (Faccini
Dori70; Pfeiffer71; CIA Security72; Unilever73), the Court held that in Mangold the ECJ created a further case
group for a so-called “negative” effect of directives, whose task is that of carrying on existing legal
obligations of the Member States, neither creating new obligations of the Member States, nor violating the
principle of conferral (para. 77).
As regards to the line of reasoning based on primary law, the FCC examined the issue of the protection of
the complainant’s legitimate expectations, establishing that, as rulings of the ECJ have an ex tunc effect,
according to Article 267 TFEU, Member States courts can grant protection of legitimate expectations only in
the form of domestic compensation for the damage caused by breach of trust.
Examining the issue of the validity of general principles of law, the FCC ruled that even if the general
principle of the prohibition of discrimination based on age could not have been derived from the
constitutional traditions common to the Member States and from their international agreements, resulting in
an autonomous “creation” by the ECJ, anyway this “creation” complied with Article 51(2) of the ECFR by
not expanding the Community tasks and competences, and therefore did not constitute an evident breach of
the principle of conferral (paras. 83, 84, 85, and 78).
Examining the issue concerning the principle of conferral, the court stated that, in order to be considered as
violating this principle, an act of authority of the EU must be sufficiently qualified (Fresh Marine74) and
highly significant in the structure of competences between the Member States and the Union. The FCC cited
relevant literature which defined if and how an act of authority could be considered sufficiently qualified:
this occurs in the case of considerable (Kokott 1994), gross and manifest (Isensee 1997) transgression of
competences, the resulting act being drastically (Kokott 1994) grievous, and manifestly across-the-board
(para. 61) (Pernice 2006).
Anyway, the Court stated, a sufficiently qualified breach of the principle of conferral cannot be ascertained
in the Mangold judgment (para. 71).
In any case, according to the Court, the FCC is empowered and obliged by the German Constitution to
review acts of the European bodies and institutions in order to check for manifest transgressions of
competence or non-respect of the national constitutional identity. However, this review shall and will be
16
exercised acknowledging the primacy of application of Union law, and the court will act in a manner that is
reserved and open towards European law (paras. 55 and 59).
In fact, the court affirmed, if each Member State claimed to be able to decide through its own courts on the
validity of legal acts of the Union, their primacy of application could be circumvented in practice, and the
uniform application of Union law would be placed at risk. On the other hand, if the Member States were to
completely forgo ultra vires review, disposal of the treaty basis would be transferred to the Union bodies
alone. Without a system of checks and balances, the practical outcome could be an amendment of a Treaty or
an expansion of the EU competences. On the contrary, the Court stated, it is important to remember that the
Member States remain the masters of the Treaties, and that potential tensions between them and the EU shall
be harmonized cooperatively (para. 57). Regarding its own role, the FCC affirmed that it would review EU
acts only if they no longer appear to be comprehensible and are manifestly untenable, because it does not
intend to become the “supreme court of review for submissions” (paras. 88 and 89).
However, as regards the Mangold decision of the ECJ, the FCC stated that no apparent ultra vires further
development of the law could be recognized therein (para. 68).
4.3 The motivations of the judgment
Research has focused on the issues brought in the Honeywell case, highlighting that many elements pushed
the FCC towards an “European-law-friendly” decision: i) the ECFR had come into force in 2009; ii) the
Mangold ruling had already given origin to a number of decisions, in which German courts referred to the
ECJ’s judgment; iii) last, but not least, to declare the Mangold judgment ultra vires would correspond to
admitting that the German level of protection of some fundamental rights was lower than the EU one (Stone
Sweet & Stranz 2012).
As a general rule, however, the judgment appears to strive for a new balance between the FCC and the
ECJ, taking into particular account the imperatives of the national integration. This is witnessed in particular
by the self-restraint exercised in not challenging the interpretation method adopted by the Luxembourg court,
and the number of references to previous decisions taken by the ECJ (Hanf 2010). In this way the FCC
showed deference towards the ECJ, maybe with the secondary aim of fostering mutual respect for a
“German” line of reasoning: a clue for this supposition could be the great number of German legal
17
scholarship resources cited (paras. 61, 69, 70). Moreover, the judgment acknowledged that the ECJ has a
right to tolerance of error (para. 66): it can be assumed that in this way the FCC intended to protect itself
against the consequences of its own potential errors (Mahlmann 2010).
Interestingly, while the ruling narrowly circumscribed the chances of an ultra vires review, either the
majority or the dissenting Justice Landau left open the possibility for constitutional identity reviews. This is
confirmed by the fact that, in endorsing the need for a procedure providing for a mandatory preliminary
ruling of the ECJ, the FCC, although manifestly refusing to act as “supreme court of review for
submissions”, nevertheless reserved the last word in a case for itself (Asero 2011).
4.4 The guarantee of constitutional identity under European and constitutional law
Already Article F(3) of the Maastricht Treaty provided that: “The Union shall respect the national
identities of its Member States […]”. Article 4(2) of the Lisbon Treaty establishes that: “The Union shall
respect [the Member States] national identities, inherent in their fundamental structures, political and
constitutional, inclusive of regional and local self-government. It shall respect their essential State functions
[…]”.
Although the wording of Article 4(2) is more precise, it does not however establish who decides on the
constitutional identity of the Member States. In effect, also this point could be qualified as an issue on
competence: who decides on what is the constitutional identity of a Member State? And who decides if a
certain EU act affects this constitutional identity unlawfully? (Besselink 2010).
Adopting a mere supranational view, it could be argued that, as the ECJ has the power to interpret the
Treaties, it has also the task of determining whether a certain EU act conflicts with the constitutional identity
of a Member State75. However, the ECJ lacks this competence: in fact deciding on an alleged infringement of
Article 4(2) TEU would involve an interpretation of national constitutional law. Yet Article 19 TEU prevents
the ECJ from interpreting national law, limiting its jurisdiction to the interpretation of EU law (Besselink
2010).
Therefore, the ECJ should determine whether EU law remains within the limits set by Article 4(2) TEU,
checking whether it respects the Member State’s constitutional identity. However, the ECJ cannot determine
18
what the constitutional identity of a Member State is, namely which principles and values enshrined in the
Constitution form the core of the national identity of this Member State.
For this reason, it can be argued that it is the Constitutional Court’s role to identify the core values of the
national identity, which derive from the Member State own cultural, social and political history (Pincus &
Novak 2011).
However, adopting a mere national view could undermine the EU integration and cohesiveness, since there
are many values which are common to all Member States, but others which are not. In effect, the decisions
handed down by many Member States’ highest Courts76 could be read as “emergency brakes” applied by
EU-opponents.
Anyway, it would be astonishing to find that Member States’ governments, on one hand, and
Constitutional Courts, on the other, expressed in the same period totally divergent views: the former pushing
towards a closer European integration, by means of ever new versions of the Treaties, and the latter slowing
down, or even impeding this integration by acting as “veto players” (Tsebelis 2002).
For this reason, it may be worth reading the judgments taken by the Italian (Frontini77; Fragd78), German
(Wünsche Handelsgesellschaft79; Brunner80), and French (decision on the Loi organique relative à
l’application de l’article 61-1 de la Constitution81) Constitutional Courts, and by the Danish Supreme Court
(Carlsen82), as restricting the priority of the national Constitutions to the core features which form the basis
of the constitutional identity of the respective Member States.
4.5 Promoting a “constitutional dialogue”
Reading the decisions of the Member States’ Constitutional Courts from a “Europe-friendly” perspective
may originate a view which pushes past conflicts into the background, and promotes on the contrary an
“ongoing conversation” (Slaughter, Stone Sweet & Weiler 1997), between the highest courts. may be
achieved through mutual reception of the respective decisions (Vosskuhle 2010 a).
In this way a “learning circuit” could be created, which could enhance the development of a true
integration-friendly European constitutional culture. This in turn could promote the achievement of a binding
19
European constitutional order, which would be able to meet the citizens’ legitimate expectations and
multiply the protection of their fundamental rights (Vosskuhle 2010 b).
Conclusions
The Lisbon Treaty acknowledges the foundational values of human rights, establishing that they shall
constitute general principles of the Union's law (Article 6), and set respect of these principles as criterion for
European States wishing to become members of the EU (Article 49).
We have come a long way since the early days of the Community, when the founding Treaties did not
mention human rights, and the ECJ ruled that Community law could not protect fundamental rights, even if
they were common to the legal systems of all the Member States (Geitling v. High Authority83; Sgarlata a.o.
v. Commission84).
In that period the task of the protection of fundamental rights was fulfilled by the Member States,
according to the values enshrined in their respective Constitutions.
After a few years, the ECJ changed substantially the relationship between the Community and the Member
States, articulating the doctrines of direct effect, supremacy, preemption and judicial review, which many
considered as limiting to the power and sovereignty of the Member States. Also some Constitutional Courts
showed a certain reluctance to acknowledge the full effectiveness of these doctrines, but did not base their
arguments so much on issues of sovereignty, as on concerns on the level of protection of fundamental rights
which could be granted to Member State citizens under EU law.
However, although the relationship of the highest national Courts with the ECJ has often not been a
peaceful one, some researchers pointed out that even the judgments which were considered not conciliatory
may be read from a “Europe-friendly” perspective. It is no coincidence that this perspective can be assumed
when both sides’ acts are evidently aimed at protecting rights and freedoms.
The Mangold decision, a far-reaching judgment having wide-ranging consequences, was handed down in
2005. Some commentators criticized its line of reasoning, arguing that through the doctrines of direct effect
of directives and binding effect of general principles the judgment violated the defendant’s rights and the
principle of subsidiarity, causing a shift of power from the Member States to the EU. They maintained that
20
the Mangold decision was ultra vires, and called on the Constitutional Court to decide on this theme. Indeed,
this occurred as the business Honeywell brought a constitutional complaint before the FCC.
Mangold and Honeywell were greeted by different commentators as decisions pushing forward,
respectively, a “Europe-centered” and a “Member State-centered” perspective. Neither Mangold nor
Honeywell, however, should be read from a “power-centered” perspective, as some commentators did in the
past, but rather from a “rights-centered” one. This enables us to consider them not narrow-, but open-minded
and innovative. As previous research highlighted, open-mindedness and cooperation can lead (and actually
did lead) the Courts to shared views, which in turn can enhance the development of a true integrationfriendly European constitutional culture.
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1
Case C-106/77, Amministrazione delle Finanze dello Stato v. Simmenthal SpA [1978] ECR 629.
Teilzeit- und Befristungsgesetz vom 21. Dezember 2000 (BGBl. I S. 1966).
3
Case C-144/04 Werner Mangold v. Rüdiger Helm.
4
Case C-112/77 August Töpfer & Co. GmbH v Commission of the European Communities; Case C-112/80
Firma Anton Dürbeck v Hauptzollamt Frankfurt am Main-Flughafen; Case C-289/81 Vassilis Mavridis v
European Parliament.
2
24
5
Case C-74-74 Comptoir national technique agricole (CNTA) SA v Commission of the European
Communities.
6
After having stated that the principle of legitimate expectations constitutes a ”superior rule of law”, the ECJ
clarified in the same case that its scope and application is limited by the overriding matter of public concern.
7
BverfGE 37, 271 [1974] CLMR 540 Internationale Handelsgesellschaft GmbH v Einfuhr- und
Vorratsstelle für Getreide und Futtermittel, also called Solange I
8
Case C-11-70 Internationale Handelsgesellschaft GmbH v Einfuhr- und Vorratsstelle für Getreide und
Futtermittel.
9
Case Ministre de l'Intérieur c/ Cohn-Bendit, N° 11604, 1978.
10
BFH, 16 July 1981, case Kloppenburg I, 16 EuR 442.
11
Case C-152/84 Marshall v. Southampton [1986] ECR 723.
12
Case C‐91/92 Faccini Dori v. Recreb [1994] ECR I‐3325; Case C‐192/94 El Corte Inglés v. Blázquez
[1996] ECR I‐1281; Joined Cases C‐397/01 to C‐403/01 Pfeiffer et al. v. Deutsches Rotes Kreuz [2004] ECR
I‐8835.
13
Case C-14/83 von Colson [1984] ECR 1891; Case C-152/84 Marshall v. Southampton [1986] ECR 723; C‐
160/01 Mau v. Bundesanstalt [2003] ECR I‐4791; Case C‐218/01 Henkel KGaA. [2004] ECR I‐1725; Case
C‐105/03 Pupino [2005] ECR I‐5285; Case C‐212/04 Adeneler a.o. v. Ellinikos [2006] ECR I‐6057; Case
Pfeiffer et al., supra note 12.
14
Pfeiffer et al., supra note 12.
15
Case C-41/74 Van Duyn v. Home Office [1974] Ch 358; Case C-148/78 Pubblico ministero v. Ratti [1979]
ECR 1629.
16
Case C‐106/89 Marleasing [1990] ECR I‐4135.
17
Case C-26/62 Van Gend en Loos v. Nederlands Administratie der Belastingen, [1963], ECR 1.
18
In Stauder v. City of Ulm the ECJ confirmed the existence of a set of unenumerated principles and rights,
which must be respected by the acts of the institutions: Case C-29/69 Stauder v. City of Ulm [1969] ECR
419.
19
Supra note 7.
20
Case C-36/75 Rutili, [1975], ECR 1219; Case C-63/83 R v. Kent Kirk, [1984], ECR 2689; Case C-222/84
Johnston v. CiRUC, [1986], ECR 1651; Case C-249/86 Commission v. Germany, [1989], ECR 1263; Case C5/88 Wachauf v. Germany, [1989], ECR 2609.
21
Case C-61/84 Cinéthèque, [1985], ECR 2605 ; Case C-12/86 Demirel, [1987], ECR 3719.
22
Case C-260/89 ERT v. DEP [1991] ECR1-2925.
23
Wachauf, supra note 20.
24
ERT, supra note 22.
25
Directive 76/207/EEC; Case C-43/75; Defrenne v. Sabena [1976] ECR 455; Cases C-75/82 and C-117/82
Razzouk v. Commission [1984] ECR 1509; Case C-262/88, Barber v. Guardian Royal Exchange [1990] ECR
I-01889; Case C-158/91, Levy [1993] ECR I-4287; Case C-13/94, P v. S and Cornwall County
Council [1996], ECR I-2143; Case C-50/96, Deutsche Telekom v. Schröder, [2000], ECR I-743.
26
Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-250/99 P to C-252/99 P and C-254/99 P Limburgse
v. Commission, [2002], I-8375; Case C-301/04 P Commission v. SGL Carbon, [2006], I-5915.
27
State agencies are constitutionally obliged to apply Community law, because a failure would constitute a
constitutional tort (Kloppenburg v. Finanzamt).
28
It was also hypothesized that the Directive itself was ultra vires, because in adopting it the Council
expanded the EC competence in the field of employment, reserved to the Member States (BeyerKatzenberger, 2011).
29
Van Gend, supra note 17.
30
Case C-6/64 Costa v. ENEL, [1964] ECR 585.
31
Some researchers believe that the highest courts can act not only as “quasi-legislators”, by means of
precedents, but also as “negative legislators”, setting aside enacted laws that are inconsistent with the
Constitution or the Treaties.
32
Case C‑499/08 Ingeniørforeningen v. Region Syddanmark, not yet reported, judgment of 12/10/2010.
33
Case C-13/05 Chacón Navas [2006] ECR I-6467.
25
34
Case C-411/05, Palacios v. Cortefiel [2007] ECR 2007 I-08531.
Case C-6/60, Humblet v. Belgium, [1960], ECR 559.
36
Case C-10/63, Acciaierie San Michele SpA v. High Authority, [1963] EUECJ C-10/63.
37
Supra note 17.
38
Supra note 30.
39
Case C-14-68, Wilhelm a.o. v. Bundeskartellamt, [1969] ECR 1.
40
Supra note 8.
41
Supra note 1.
42
Case C-213/89 The Queen v. Secretary of State (Factortame), [1990] ECR I-2433.
43
Decision of 1March 1968, Syndicat Général de Fabricants de Semoules de France.
44
Decision of 20 October 1989, Nicolo.
45
Decision of 30 October 1998, Sarran, Levacher et autres.
46
Decision n° 2009-595 DC. 3 December 2009.
47
Supra note 45.
48
Decision of 3 December 2001, Syndicat national de l’industrie pharmaceutique.
49
Decision 183 of 27 December 1973, Frontini v. Ministero delle Finanze [1974] 2 CMLR 372.
50
Decision 170 of 8 June 1984, Spa Granital v. Amministrazione delle Finanze.
51
Decision 232 of 21 April 1989, Spa Fragd v. Amministrazione delle Finanze, 72 RDI.
52
Spanish Constitutional Court, Declaration on the consistency of the European Constitutional
Treaty with the Spanish Constitution, DTC 1/2004, 13 December 2004.
53
Decision of 26 November 2008, Case No. Pl. ÚS 19/08.
54
Judgment of 11 May 2005 r. in the case K 18/04 OTK Z.U. 2005/5A.
55
Decision of 6 April 1998.
56
Supra note 8.
57
Supra note 7.
58
BVerfGE 22 October 1986, 2 BvR 197/83 Wünsche Handelsgesellschaft 73, 339, also called Solange II.
59
Decision of 12 October 1993, Brunner, 89, 155, also called Maastricht decision.
60
Decision of 17 February 2000, 2 BvR 1210/98
61
Decision of 7 June 2000, 102, 147.
62
This judgment was overruled by the Constitutional Court in 2006.
63
Decision of 30 June 2009, 2 BVE 2/08.
64
Decision of 12 May 2010, n° 2010-605 DC.
65
See paragraph 4. below.
66
BVerfGE, 6 July 2010, Honeywell, 2 BvR 2661/06.
67
See paragraph 1. above.
68
Case C-129/96 Inter-Environnement Wallonie, [1997] ECR I-7411.
69
Case C-14/02 ATRAL, [2003] ECR I-4431.
70
Supra note 12.
71
Supra note 12.
72
Case C-194/94 CIA Security [1996] ECR I-2201.
73
Case C-443/98 Unilever [2000] ECR I-7535.
74
Case C-472/00 P Fresh Marine [2003] ECR I-7541.
75
This view appears to be in line with the ECJ decision in Foto-Frost (1987), where the Court held its
exclusive competence to determine the legal limits of the Community.
76
See paragraphs 3.1.2.2 and 4.1.
77
Supra note 49.
78
Supra note 51.
79
Supra note 58.
80
Supra note 59.
81
Decision n° 2009-595 DC.
82
Decision of 6 April 1998, Carlsen et al. v. Prime Minister Rasmussen.
83
Cases C-36, 37, 38, and 40/59, Geitling v. High Authority, 1960 E.C.R. 423.
84
Case C-40/64, Sgarlata a.o. v. Commission, 1965 E.C.R. 215.
35
26
27