The Area of Freedom, Security and Justice Before and After the Lisbon Treaty
Sources of Law and Primacy
With the entry into force of the Lisbon Treaty, the EU measures concerning the AFSJ will take the form of Regulations and Directives, adopted by the EU Council by a qualified majority according to the ordinary legislative procedure.
This compensates the shortcomings of the previous regime, where unanimity and the absence of direct effect and primacy raised concerns in terms of efficiency and effectiveness.13 The most important consequence is that the principle of primacy and the principle of direct effect, affirmed by the Court of Justice in relation to acts adopted under the First Pillar, will be applicable in any area where the EU can generate law, including the measures on police and judicial cooperation in criminal matters.
Before the entry into force of the Lisbon Treaty the Court of Justice has tried to overcome the limits affecting the Third Pillar either by broadening its competences or by extending the applicability of principles elaborated in the First Pillar to situations falling within the Third Pillar. In Pupino14 the Court affirmed for the first time that the duty of consistent interpretation also applied to framework decisions: although prevented from acting contra
legem, the national court should interpret domestic rules in light of the wording and purpose of the framework decision in order to comply with Art. 34(2) (b) TEU.15 Building upon its traditional case law, the ECJ affirmed that:
“it would be difficult for the Union to carry out its task effectively if the principle of loyal cooperation, requiring in particular that Member States take all appropriate measures, whether general or particular, to ensure fulfillment of their obligations under European Union law, were not also binding in the area of police and judicial cooperation in criminal matters, which is moreover entirely based on cooperation between the Member States and the institutions.”16
The Court therefore concluded that its jurisdiction would be deprived of most of its useful effect if individuals were not entitled to invoke framework decisions in order to obtain a conforming interpretation of national law before the courts of the Member States.17
The indirect legal effect of EU framework decisions, however, did not attract the principle of primacy, which was never extended by the Court of Justice to the Third Pillar. On the other hand, in Segi18 the Court affirmed that the right to make a reference for a preliminary ruling existed in respect of all measures adopted by the Council, whatever their nature or form, which are intended to have legal effects in relation to third parties. As a result it was possible to review a common position intended to produce legal effects in relation to third parties even in the absence of any express indication to that effect in Art. 35 (1) TEU. According to the Court, the fact that its jurisdiction was less extensive under Title VI of the Treaty on European Union than it was under the EC Treaty, and the fact that there was no complete system of actions and procedures designed to ensure the
legality of the acts of the institutions in the context of Title VI, did not invalidate the conclusion that the appellants could not validly argue that they were deprived of all judicial protection Unlike the Treaty establishing a Constitution for Europe, the Lisbon Treaty confines the principle of primacy in a Declaration.19 However, this does not affect its binding nature: according to the opinion of the Council Legal Service,20 the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the first case returned by the Court.21 In the recent Filipiak case 22 the latter, ruling on income tax legislation, affirmed that the national court must apply Community law and refuse to apply conflicting provisions of national law, irrespective of the judgment of the national Constitutional court which had deferred the date on which those provisions, held to be unconstitutional, were to lose their binding force. This judgment exemplifies the ongoing dialogue between European and national courts which has characterized the most important steps of European integration.
In recent times, the principle of primacy came into play before some national Constitutional Courts when deciding on the European Arrest Warrant Framework Decision,23 confronting the latter with the potential clash between an EU provision and the (constitutionality of) the measure adopted to implement it into the national legal order. Albeit for different reasons, in none of these instances did the national courts invoke the well known counter-limits doctrine, a circumstance which could not be taken for granted. In fact, Constitutional courts have often stressed their role of ultimate guarantors of the basic national fundamental principles. Suffice it here to recall the judgment of the German Constitutional Court on the Treaty of Lisbon.24 In line with the “Solange jurisprudence”,25 the judges claimed that “With Declaration no. 17 Concerning Primacy annexed to the Treaty of Lisbon, the Federal Republic of Germany does not recognize an absolute primacy of application of Union law, which would be constitutionally objectionable, but merely confirms the legal situation as it has been interpreted by the Federal Constitutional Court”.26 They significantly added that: “the values codified in Art. 2 TEU Lisbon, whose legal character does not require clarification here, may in the case of a conflict of laws not claim primacy over the constitutional identity of the Member States, which is protected by Art. 4 (2) sentence 1 TEU Lisbon and is constitutionally safeguarded by the identity review pursuant to Article 23.1 sentence 3 in conjunction with Article 79.3 of the Basic Law”.27
Even supporting an extensive interpretation of the scope of primacy, capable of covering the principle of loyal cooperation, it was impossible before the entry into force of the Lisbon Treaty to impose its observance given the inapplicability of the infringement procedure in the field of police and judicial cooperation in criminal matters. This amounted to a significant restriction on judicial protection.28 It is thus possible to fully appreciate the impact of the Lisbon Treaty: the extension of judicial control over, and the application of the principle of primacy to, measures falling within the scope of the former Third Pillar undoubtedly constitute important steps in the process of European integration.
13. C. Ladenburger, ‘Police and criminal law in the Treaty of Lisbon. A new dimension for the community method’, (2008) 4 European Constitutional Law Review 21.
14. Case C-105/03 Pupino  ECR I-5285.
15. According to a consolidated case law, the principle of consistent interpretation is based on the binding character of directives, provided by Art. 249 TEC, and on the principle of loyal cooperation between the Member States and the Community, provided by Art. 10 TEC. See Case C-106/89 Marleasing  ECR I-4135; Case C-334/92 Wagner Miret  ECR I-6911, Case C-91/92 Faccini Dori  ECR I-3325.
16. Case C-105/03 Pupino, n. 14 above, para 42.
17. For further developments of the Pupino precedent, see Case C-467/05 Giovanni Dell’Orto  ECR I-5557.
18. Case C-355/04 P Segi  ECR I-1657.
19. Declaration concerning privacy No 17.
20. Opinion of the Council Legal Service of 22 June 2007, 1197/07 attached to the Declaration concerning privacy.
21. Case 6/64 Costa v. ENEL  ECR 585.
22. Case C-314/08 Filipiak  nyr.
23. German Constitutional Court, Bundesverfassungsgericht, judgment 18 July 2005, 2 BvR 2236/04, in www.bverfg.de ; Poland Constitutional Court, Trybunal Konstytucyjny, judgment 27 April 2005, No P 1/05, in www.trybunal.gov.pl/eng/summaries/documents/P-1-05-GB.pdf ; Cypriot Constitutional Court, judgment 7 November 2005, No 294/2005; Belgian Constitutional Court, Cour d’Arbitrage belge, judgment 13 July 2005, No 124/2005, in www.arbitrage.be ; Czech Constitutional Court, judgment 8 May 2006.
24. German Constitutional Court, judgment 30 June 2009, No BvR 2 BvE 2/08 2 be 5/08 -2 BvR 1010/08 -2 BvR 1022/08 –2 BvR 1259/08 – 2 BvR 182/09, para 35. For an exhaustive analysis of this judgment, see M. Poiares Maduro, G. Grasso, ‘Quale Europa dopo la sentenza della Corte costituzionale tedesca sul Trattato di Lisbona’, (2009) Il Diritto dell’Unione europea 503.
25. Cf. German Constitutional Court, judgment 29 May 1974, No BvR 52/71 (Solange I); German Constitutional Court, judgment 22 October 1986, No 2 BvR 197/83 (Solange II). See also German Constitutional Court, judgment 12 October 1993, No 2 BvR 134/92 (Maastricht) and German Constitutional Court, judgment 7 June 2000, No 2 BvR 1/97 (Banenmarktordnung).
26. German Constitutional Court, judgment 30 June 2009, n. 24 above, para 331.
27. Ibid., para 332.
28. V. Bazzocchi, ‘Il Mandato d’arresto europeo e le corti supreme nazionali’, (2007) Il Diritto dell’Unione europea 663.