The fundamental right to vote in European Parliament elections
Minke de Haan
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25 April 2017
Student ID: 11110104 Supervisor: Christina Eckes Second supervisor: Thomas Vandamme
Master track: European Union law Dissertation track: European constitutional law
Word count: 12.600
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Abstract
A uniform electoral procedure for the election to the European Parliament has not been established due to resistance against interference with national electoral laws in the Council. Accordingly, the elections are organised by the Member States’ national electoral laws. In this context the European Court of Justice ruled that the right to vote in European Parliament elections is a fundamental right inherent in Union citizenship. In other words, the European Parliament represents all Union citizens and Union citizens have the right to vote for ‘their’ Parliament. As such, electoral laws are an interesting field of ‘mixed’ elements: both intergovernmental and supranational. This thesis will give meaning to these elements from a constitutional perspective. The methodology used is doctrinal legal research, using existing conceptual frameworks of constitutionalism. In this research I argue that the Court federalised electoral laws.
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Acknowledgments
A word of thanks to Christina Eckes, for your advice and for stepping in as my supervisor, and to Thomas Vandamme for your helpful comments. Wim, thank you so much for continuing to take me out and listening to me while I was finishing my degree. I would also like to thank my father, for being very supportive in the writing process and Mathijs, who helped me a great deal by having coffees at the university and by proofreading my final draft. Lastly, Sophia and Linde, you have been amazing in being best friends.
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Contents
1. Introduction ... 6
1.1 Problem statement ... 6
1.2 Context: integovernmentalism and supranationalism in electoral laws ... 7
1.3 Research question ... 8
1.4 Academic relevance: Representative authority of the European Parliament ... 9
1.5 Methodology ... 11
1.6 structure of the thesis ... 11
2. A right to vote in elections to the European Parliament ... 11
2.1 Development of a vertical relation between the EU and European citizens ... 11
2.1.1 Union citizenship and electoral laws ... 13
2.2 Political citizenship ... 14
2.3 Concluding remarks ... 17
3. The roles of the Member States and the European Parliament in European electoral laws ... 18
3.1 (a) European electoral provisions ... 18
3.1 (b) The history of the Direct Elections Act ... 20
3.1 (c) Deviation from uniformity ... 22
3.2 An autonomous Parliament in an intergovernmental context ... 23
3.3 Concluding remarks ... 24
4. Electoral laws from a constitutional perspective ... 25
4.1 Analytical framework: (a) Sui generis, constitutional pluralism and (b) Federal theory ... 25
(a) Sui generis and pluralism ... 25
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4.2 Constitutional theory and electoral laws ... 29
(a) Constitutional pluralism ... 29
(b) Federalism in electoral laws ... 31
4.3 Concluding remarks ... 32
5. Conclusion ... 32
6. Bibliography ... 35
6.1 Table of cases ... 35
ECJ (numerical order) ... 35
6.2 Table of legislation ... 36
6.3 Other documents ... 36
6.4 Literature ... 37
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1. Introduction
1.1 Problem statement
In 2015 the European Court of Justice (hereafter: ECJ or Court) ruled in the Delvigne judgment that the right to vote in European Parliament elections is a fundamental right.1 National electoral laws through which the elections to the European Parliament are organised fall within the scope of European Union (EU) law as the national electoral laws ensure that the European elections are held by universal suffrage and in a free and secret ballot, as enshrined in Article 39(2) of the Charter of Fundamental Rights (hereafter: Charter). As a result, now citizens can invoke the right to vote in European elections against their own Member State and any limitations of that right must be justified according to European standards.2 The right to vote as a European fundamental right is not unproblematic in the intergovernmental context of European electoral laws. A uniform elections procedure as envisioned in Article 223(1) TFEU has not been established. The adoption of such a procedure is entrenched with a unanimity vote in the Council, while the European Parliament has the right to initiate such a procedure. Thereby, the adoption of electoral laws is politicized and in the history of European electoral laws, most notably the adoption of the Direct Elections Act,3 the Council has actively opposed the adoption of Europeanized electoral provisions. Accordingly, under Article 8 of the Direct Elections Act:
‘Subject to the provisions of this Act, the electoral procedure shall be governed in each Member State by its national provisions.’4
Before Delvigne, the laws governing the European Parliament elections fell within Member State competences and the Court did not rule on eligibility requirements of Member States.5 In the words of scholar Dimitri Kochenov: 'all sands have shifted'.6
1
Case C-650/13, Thiery Delvigne v.Commune de Lesparre-Médoc, Préfet de la Gironde, paras 32-33.
2 D. Kochenov, “The right to vote as an EU fundamental right and the expanding scope of application of the EU
Charter of Fundamental Rights”, CLJ (2016) 24, 27.
3 Council, Act concerning the election of the representatives of the Assembly by direct universal suffrage OJ [1976]
L 278/05, as amended by, Council Decision, amending the Act concerning the election of the representatives of the European Parliament by direct universal suffrage, annexed to Council Decision 76/787/ECSC, EEC, Euratom, OJ [2002] L 283/1, (Hereafter: Direct Elections Act).
4
Art. 8 Direct Elections Act.
5 Case C-300/04, Eman and Sevinger v. College van Burgemeester en Wethouders van Den Haag (Eman and
Sevinger), para 45. Case C-145/04, Spain v. United Kingdom, para 78; Case C-208/03 P, Jean-Marie Le pen v. European Parliament (Le Pen), para 51.
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1.2 Context: integovernmentalism and supranationalism in electoral laws
National electoral laws govern firstly the fundamental right to vote and secondly the choices regarding the function of democracy in a state. The first is the basic political human right and the most preeminent political right pertaining to citizenship.12 The second entail detailed arrangements in order to forestall any uncertainty regarding the organisation of elections. To illustrate, the Explanatory Memorandum to the Dutch Electoral Code states:
‘[Daarbij zijn] gewichtige belangen in het geding (de geldigheid van verkiezingen, de positie van politieke partijen en van kandidaten voor en gekozenen in functies in vertegenwoordigende organen), welke niet toelaten dat onduidelijkheid bestaat over de wijze waarop de bepalingen
van die wet moeten worden geïnterpreteerd’7
Electoral laws thus express a states’ particular understanding of democracy, political representation and the political community. ‘The various national electoral procedures in force (…) are the result of particular historical-political, social and cultural conditions’8
and ‘reflect a certain philosophy on democracy and elections.’9 Electoral laws are part of to a state’s sovereignty and any interference with national electoral laws, even if it is to organise European elections, is met with resistance in the Council, national parliaments and the European Parliament itself.10
However, the Member States also introduced European citizenship in the Treaty of Maastricht, which marked the beginning of the Union as a political project. The Member States allowed the Union to have a direct connection with their citizens. Yet, the Member States have a veto in the Council in the legislative procedure in matters concerning citizenship, to protect themselves
6 Kochenov (fn 2), 27. 7
Tweede Kamer der Staten Generaal, “Nieuwe bepalingen inzake het kiesrecht en de verkiezingen (Kieswet). Memorie van toelichting”, vergaderjaar 1987-1988, 20264, nr. 3, 3. Retrieved at:
http://resolver.kb.nl/resolve?urn=sgd%3Ampeg21%3A19871988%3A0005311.
8 D. Pasquinucci, “Towards a Historical approach to the European Elections”, 3 AUSE (2008) 1, 19. 9
C. Ziccardi, “An analysis of the European Parliament’s electoral arrangement(s). A uniform procedure for the elections to the European Parliament?”, Katholieke Universiteit Leuven (2005). Retrieved at:
http://www.ethesis.net/european_parliament/ep_inhoud.htm.
10
On the latest proposal of the Parliament the national parliaments of France, the Netherlands, United Kingdom, Sweden and Luxembourg in application of Article 5 of the Treaty on European Union and Protocol No 2 to the Lisbon Treaty concerning the application of the principles of subsidiarity and proportionality sent a reasoned opinion on why the proposal was in breached of the principle of subsidiarity.
8 against a federal type Union that can impose political values against their wills.11 The general Member State line is that political rights are a matter for intergovernmental acts, not supranational acts where the Union can impose rules on the Member States. This is also the case with the adoption of European electoral laws.12 In this context, the Court raised the right to vote for European Parliament elections to the level of a fundamental right, inherent in Union citizenship and protected in the Charter of Fundamental Rights. Thereby, it confirmed a supranational connection between the Parliament and Union citizens, outside the intergovernmental legislative procedure. European electoral laws are thus an interesting field of ‘mixed’ elements: both supranational and intergovernmental.
The question that remains to be answered in this regard is whether the Member States were right in fearing the development of a strong federal type Union. How must we understand the development of the Court’s case law within the course of the Union? In the absence of a clear definition of what the nature of the EU legal order is, besides ‘unique’ on its own accords, the doctrine of the ECJ is leading for European constitutionalism. However, constitutional scholars also gave their account of European constitutionalism and provided analytical tools to understand the foundation of the EU legal order.13 Thus, in order to give meaning to the supranational and intergovernmental elements in European electoral laws a reflection on the constitutional thought on the EU legal order is necessary.
1.3 Research question
In this thesis I endeavour to understand the nature of European electoral provisions after the development of the right to vote in European elections as a fundamental right. I will argue that the Court federalised the electoral provisions by giving itself jurisdiction to rule on the dispute and allowing Union citizens to invoke the right to vote against electoral provisions of the Member States.
My research question is:
11 See voting procedures in Art. 19(1) and 22 TFEU and the explicit reference to ‘the conditions and limits defined
by the Treaties’ in art. 22 TFEU laying down the rights of citizenship of the Union; see also J. Shaw, The Transformation of Citizenship in the European Union. Electoral Rights and the Restructuring of Political Space, (CUP, 2007), 9.
12 Ibid., 112. 13 See chapter four.
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How does a fundamental right to vote change the framework of European electoral laws from a constitutional perspective?
I will answer this question by the following sub-questions that will be answered in three chapters accordingly:
How did the Court develop the right to vote in elections to the European Parliament as a fundamental right?
What are the roles of the Member States and the European Parliament in the legal framework of European electoral laws??
How does constitutional theory explain the EU legal order and what theory can best be used to understand European electoral laws?
1.4 Academic relevance: Representative authority of the European Parliament
A weak relationship between the European Parliament and its electorate endangers the Parliament’s representative authority is seen as a lack of pouvoir constitué and as a limitation to European integration.
Under Article 10(1) Treaty on European Union (TEU) the functioning of the Union is founded on representative democracy and European citizens are directly represented in the European Parliament.14 The European Parliament is an autonomously functioning parliament. It is on equal footing with the Council as co-legislator in the fields where the ordinary legislative procedure is used, which is in a wide range of areas.
However, the relationship between the European Parliament and Union citizens is considered as very weak. Due to the lack of a public sphere, which guarantees constant interaction between people and Parliament, public discourse follows national lines and is there no political will formation.15 In the words of MEP Jo Leinen: ‘European elections are second class elections,’16 and already have been since the first elections in 1979.17 This weak relationship has a negative
14 Art. 10(2) TEU. 15
Grimm, “Does Europe need a constitution?”, 1 ELJ (1995) 282, 293-4.
16 MEP Jo Leinen in an interview with E. Zalan, “MEPs seek to harmonize EU election law”, (EU observer, 2015).
Retrieved at: https://euobserver.com/institutional/131085.
10 influence on the representative authority of the European Parliament.18 However, this situation is not necessarily static.19 A way to strengthen that relationship is through elections: the electoral provisions shaping how political power is organised ‘are key for shaping (the) electoral relationship.’20
In order to address these problems the European Parliament has tried various times to ‘Europeanize’ the elections, for example with the 2014 Spitzenkandidaten21
and the new proposal in 2015 to reform the electoral law of the EU that aims to 'enhance the democratic and transnational dimension of the European elections and the democratic legitimacy of the Union decision-making process (...) and bring Members of the European Parliament closer to their voters'.22
Based on an analysis of the electoral laws it is argued that the European Union has no political community (demos). The Parliament is said to represent the peoples of the Member States, not all Union citizens as one political unit. This stance, most clearly issued by the German Constitutional Court,23 has some far reaching effects for the limits of European integration. Without a political community there is no pouvoir constitué, no sovereign people as a constituting power to legitimize the exercise of state authority. As a result, the constitution and the authority of the Union as a whole is delegitimized.24 In contrast, the ECJ argued that the
18 D. Chalmers, G. Davies and G. Monti, European Union Law: Text and Materials, (CUP, 2014), 150 19 In J. Habermas, “Democracy in Europe. Why the development of the European Union into a transnational
democracy is necessary and how it is possible”, Arena Working Paper 13 (2014) the author poses that the
development of the double sovereign through existing structures of public dialogue can strengthen the relationship between Parliament and the electorate, diminishing the democratic deficit.
20 K. Buitenweg, The European Parliament's Quest for Representative Autonomy. An internal perspective, (EIP,
2016), 99.
21
See the thesis of P. Post, “The Spitzenkandidaten procedure. Genesis and nemesis of a constitutional
convention?”, Leiden University (2015). Retrieved at: http://njb.nl/Uploads/2015/9/LLM-Thesis---LLM-European-Law---Paul-W.-Post.pdf.
22 European Parliament, Resolution of 11 November 2015 on the reform of the electoral law of the European Union
((2015/2035(INL).
23See 2 BvE 2/08, Lissabon Urteil, in para 280: ‘the European Parliament is not a representative body of a
sovereign European people. This is reflected in the fact that it is designed as a representation of peoples in the respective national contingents of Members, not as a representation of Union citizens in unity without
differentiation, according to the principle of electoral equality’.
24 There is extensive literature on the democratic deficit and the legitimacy crisis of the Union. See: J. Weiler,
“Deciphering the Political and Legal DNA of European Integration”, in J. Dickson and P. Eleftheriadis (eds.), Philosophical Foundations of European Union Law (OUP, 2012), 139-143; D. Chalmers, G. Davies and G. Monti (fn 18), 150; Habermas (fn 19); A. Follesdal & S. Hix, “Why there is a democratic deficit in the EU: A response to Majone and Moravscik”, 44 JCMS (2006) 533; A. Von Bogandy, “The European lesson for international
11 European Parliament is the representative body of all Union citizens and thus created an argument in favour of one European political community.25
1.5 Methodology
For this research I used a doctrinal methodology. I interpreted primary and secondary laws and Court cases in order to put them within existing legal theories on how the nature of the Union is best understood in order to truly understand the nature of European electoral laws. In the second chapter I give a historical account of the development of European electoral laws as a method to illustrate the intergovernmental and political element of the legislative procedure.
1.6 structure of the thesis
In the second chapter I will explain how the Court has characterised the right to vote in European Parliament elections as a fundamental right. In chapter three I will describe the legal framework of European electoral laws and analyse the course in adopting and amending the Direct Elections Act. In chapter four I will elaborate on the constitutional thought on the nature of the EU legal order and use these to analyse the nature of European electoral laws from a constitutional perspective.
2. A right to vote in elections to the European Parliament
As stated in the introduction, electoral laws encompass choices on how to govern political representation, and - now - also the fundamental political right to vote in elections to the European Parliament. In this chapter, I will first explain how the Court developed an interpretation of European citizenship in which the EU has a relationship with European citizens outside the provisions on free movement. Subsequently, I will describe how the Court came to the conclusion that Union citizens have an inherent right to vote in elections to the European Parliament.
2.1 Development of a vertical relation between the EU and European citizens
Under Article 20(1) TFEU, Union citizenship is derived from and therefore additional to national citizenship. Most importantly it entails rights that allow citizens to move within EU territory. In order to invoke citizenship rights a cross-border element is necessary to fall under the ratione
25 See further on this stance, S. Coutts, “Case C-650/13 Delvigne – A political citizenship?”, (European Law Blog,
12 materiae of the free movement provisions. According to Jo Shaw this makes citizenship rights horizontal rights, rights to be invoked against a host Member State, and not vertical rights, rights to be invoked against one’s own Member State, thus without a cross-border element.26
However, in the past years the Court has given a more vertical – or federal - reading on the status, nature and scope of citizenship rights. To start, in Grzelczyk the Court stated that ‘Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality.’27 Here, the Court emphasized the right of non-discrimination and a limited amount of solidarity between citizens of the different Member States. A substantive approach to citizenship rights came in the 2010 Rottmann case. This case concerned an Austrian citizen who was naturalized as a German citizen and consequently had to give up his Austrian citizenship. In the German naturalization process he had not mentioned that he was subject to an Austrian criminal proceeding. This made his acquisition of citizenship fraudulent and constituted a reason to revoke the German citizenship status, which would make Mr. Rottmann stateless and would also deprive him of his Union citizenship. The Court regarded the matter - acquisition and loss of nationality, normally within the competences of the Member States - to be ‘covered by Union law’. The national rules must have ‘due regard of the latter.’28
Thus, Union citizenship brings a matter that is within Member State competence to be governed by Union law and imposes limitations to the way Member States execute their laws. The most important case on the vertical reading of Union citizenship is the Ruiz Zambrano case, where the Court again stressed that Union citizenship is intended to be the fundamental status of nationals of the Member States,29 and that following from this, Union citizenship precludes national legislation that deprives citizens ‘of the genuine enjoyment of the substance rights conferred by virtue of their status of citizens of the Union.’30
However, the deprivation of enjoyment of citizenship rights is interpreted very narrowly, so far this has only been the case when citizens have to leave the territory of the Union.31
26
Shaw (fn 11), 11.
27 Case C-184/99, Grzelczyk v. Centre public d'aide sociale d'Ottignies-Louvain-la-Neuve (Grzelczyk), para 31. 28 Case C-135/08, Janko Rottman v. Freistaat Bayern, paras 39, 41.
29
Case C-34/09, Ruiz Zambrano v. Office national de l’emploi (ONEm), para 41.
30 Ibid., para 42.
31 Ibid., para 44. See also in that regard, Case C-256/11, Dereci, where expulsion to another Member State was not
13
2.1.1 Union citizenship and electoral laws
Twice before Delvigne this vertical interpretation of citizenship was relevant for European electoral laws. In 2006 the Court ruled on electoral laws in relation to national eligibility requirements in the Spain v. UK and Eman and Sevinger cases. In both cases it confirmed that pursuant to Article 8 of the Direct Elections Act, the definition of who is entitled to vote and stand in European Parliament elections remains within Member State competences.32 In Spain v. UK this led to the possibility to extend the right to vote to non-EU citizens living on the British Oversees Territory Gibraltar. The case was brought before the Court after the European Court of Human Rights (ECtHR) had ruled in Matthews v. United Kingdom that the United Kingdom could not withhold Union citizens living in Gibraltar the right to vote to its legislature, the European Parliament.33 More interesting for the subject of this chapter, is the judgment in Eman and Sevinger. Two Dutch citizens living in Aruba, a country on the list of oversees countries and territories where the Treaties do not apply, were excluded from the European franchise. Yet, Dutch citizens living in a third country were not. The Court ruled that the definition of a person entitled to vote in European Parliament elections remains within Member State competence and that a requirement of residency in order to be entitled to vote is in principle not inappropriate.34 However, the principle of non-discrimination of nationals prevents that European citizens are treated differently while they are in the same situation and this cannot be justified.35 Thus, a principle of Union law limits the way the Dutch government decides to define eligibility requirements for the right to vote in European Parliament elections. According to Van Eijken and Van Rossem Eman and Sevinger is in the same line of case law as the above described Ruiz Zambrano, where Union citizenship rights can be invoked against certain national laws without a cross-border element.36 This line of case law now also includes the Delvigne judgment. However, in both Spain v. UK and Eman and Sevinger, the Court circumvented the question
32
Case C-145/04, Spain v. United Kingdom, para 78; Joined Cases C-300/04, Eman and Sevinger v. College van Burgemeester en Wethouders van Den Haag (Eman and Sevinger), para 45.
33 The United Kingdom extended the right to vote to non-EU citizens living on Gibraltar after ECtHR, Matthews v.
United Kingdom App. No 24833/94 (1999). Subsequently Spain started an action for annulment – now Art. 259 TFEU - against the United Kingdom, one of the few times a Member States used this procedure.
34 Eman and Sevinger, para 45, 55. 35 Ibid., para 61.
36
H. van Eijken and J. W. van Rossem, “Case note: Delvigne and the Right to Vote in European Elections”, 12 EUConst (2016) 114, 125-126., 127 with reference to Ruiz Zambrano, para 42; F. Fabbrini, Fundamental Rights in Europe. Challenges and Transformations in Comparative Perspective, (OUP, 2014), 139. See also Shaw (fn 11) and J. Shaw, “The Political Representation of Europe's Citizens: Developments”, ECLR 4 (2008) 162.
14 whether Union citizens have the fundamental right to vote in elections to ‘their’ Parliament. Nevertheless, this right was confirmed in Delvigne.
2.2 Political citizenship
(a) Case description
In the Delvigne case the following situation gave rise to the legal dispute. Due to a criminal conviction Mr. Thierry Delvigne was refused to be put on the electoral role in Lesparre-Médoc. Under articles 28 and 34 of the old French Criminal Code, citizens who committed a serious offence were automatically excluded from the political community by losing their civic right to vote and stand for elections.37 This penalty extended to the European Parliament elections.38 After the entry into force of the new Criminal Code in 1994, under Article 370 this ancillary penalty became subject to a court ruling and could not exceed 10 years. This did not help Mr. Delvigne. His 12 years custody sentence became final before the entry into force of the new criminal code and his automatic and permanent loss of civic rights was maintained. Mr. Delvigne requested the Bordeaux District Court to ask a preliminary question to the ECJ whether his removal from the electoral roll is compatible with Article 39 of the Charter, in chapter V, citizen’s rights, the right to vote and stand as candidate at elections to the European Parliament.
In order to answer this question the Court first had to establish that it has jurisdiction to review the compatibility of the French electoral law with the Charter. The Charter codifies and clarifies the fundamental rights protection in the setting of the EU.39 Article 51 of the Charter defines the scope of application of the Charter. The document applies primarily to the European institutions and only to the Member States when they are ‘implementing EU law’.40 Thus, for the Court to have jurisdiction in the case the French government must be implementing EU law in the meaning of Article 51(1) of the Charter. The leading judgment on the interpretation of this
37
Some form of prisoner disenfranchisement, automatic or by Court order is allowed by law in: Austria, Belgium, Bulgaria, Estonia, France, Germany, Greece, Hungary, Italy, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia and the United Kingdom. Often the rules are even more strict when it comes to candidacy. In relation to the blanket ban on prisoner voting in the United Kingdom, the subject has been decided on before the ECtHR in: HCtHR, Hirst v. United Kingdom¸ App. No 74026/01 (2005). See for an updated database on all national electoral laws: European Union Democracy Observatory on Citizenship (EUDO), national electoral laws, Robert Schuman Centre of the European University Institute in Florence. Retrieved at:
http://eudo-citizenship.eu/databases/national-electoral-laws.
38 Art. 2 of Law No 77-729 on the election of representatives to the European Parliament.
39 P. Eeckhout, “The EU Charter of Fundamental Rights and the Federal Question”, 39 CML Rev. (2002) 945. 40 Article 51(1) of the Charter.
15 provision is the Åkerberg Fransson case, where the Court ruled that ‘fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations.’41
Thus the scope of EU law is ‘all situations governed by EU law’, while not extending the competences attributed to the Union by the Treaties.42
The Court used a ‘substance-based’ approach to determine whether a situation is governed by EU law and the national legislation thus falls within the scope of EU law. A ‘substance-based’ approach means that there has to be corresponding Union law on the subject matter of the dispute for the Charter to be applicable.43 In this case, the Court ruled that Article 39(2) of the Charter corresponds with the Articles 1(3) of the Direct Elections Act and 14(3) of Treaty on European Union, the provisions that state that the elections to the European Parliament must be by universal suffrage and by free and secret ballot. According to the Court, the situation fell within the scope of Union law because the organization of direct elections is an obligation of the Member States, an obligation that they perform through their own electoral laws.44 The second paragraph of Article 39 of the Charter is according to the Court ‘an expression in the Charter of the right of Union citizens to vote in the elections to the European Parliament in accordance with articles 14(3) TEU and 1(3) of the Direct Elections Act.’45
In the paragraphs on the substance the Court made the connection between citizenship and the right to vote in the elections to the European Parliament. In the explanation on the rights conferred in the Charter, Article 39(2) takes over the basic principles of the electoral system in a democratic State.46 Thus, ‘it is apparent (…) that this constitutes the expression of the Charter of Union citizens to vote in elections to the European Parliament’.47
Therefore, the deprivation of the right to vote on the basis of national legislation is a limitation of this right.48 The Court subsequently considers whether this limitation is accepted. This is the case when the limitations are ‘provided for by law, respect the essence of those rights and freedoms and, subject to the principle of proportionality, are necessary and genuinely meet objectives of general interest
41 Case C-617/10, Åklagaren v. Hans Åkerberg Fransson, paras 19 – 21. 42 Art. 6(1) TEU and 51(2) of the Charter.
43 A. Ward, “Article 51 – Scope” in: S. Peers e.a. (eds.) The EU Charter of Fundamental Rights. A Commentary
(Hart, 2014), 1413, 1434. The Court has quickly found situations to be governed by EU law. Also when Member States did not intend to implement EU law or when only a little of the subject was covered by EU law. Ward, 1452.
44 Delvigne, paras 32-34. 45
Ibid., para 44.
46 Ibid., para 41; Explanation to Article 39 of the Charter. 47 Ibid., para 44.
16 recognized by the European Union or the need to protect the rights and freedoms of others.49 The Court swiftly concludes that the French legislation complies with the requirements and that the charter did not preclude the disenfranchisement of prisoners.
(b) Evaluation
I would like to stress four points of evaluation on this judgment.
Firstly, the Court used a very wide standard to find the Charter applicable, namely universal suffrage, a basic element of democracy in all Member States.50 However, it also used a wide test to judge whether the limitation of the right to vote is legitimate. Thus, the national electoral laws were not affected by the judgment.
Secondly, the outcome can have far-reaching consequences for national electoral laws because all laws that are related to universal suffrage can now fall under the jurisdiction of the Court. Regarding elections of the European Parliament, it can influence laws of Member States where expatriate voting outside and within the territory of the Union is denied. 51 However it can also affect laws that are not only intended to organise the elections to the European Parliament. This can be problematic for Member States in the light of the controversy over prisoner disenfranchisement,52 and the disenfranchisement of people with mental health problems.53 Thirdly, the Court did not use the jurisprudence of the European Court of Human Rights (ECtHR) on Article 3 of Protocol No. 1 to the European Convention of Human Rights (ECHR) to define the substance of the right to vote and the proportionate limitation, while it has ruled on
49
Ibid., para 46 and the case law mentioned therein.
50 See Kochenov (fn 2), who expressed the fear that Article 2 TEU, on basic democratic values, might function as an
entry point for applicability of the Charter.
51 In Belgium, Cyprus, Czech Republic, Denmark, Greece, Ireland, Italy, Malta and Slovakia a citizen is
disenfranchised form European elections when he or she moves outside Union territory to a Third Country. In Cyprus, Czech Republic, Ireland, Malta and Slovakia a citizen is disenfranchised from European elections when he or she moves to another Member State. See: www.europeancitizensabroad.eu.
52 The United Kingdom has announced that it will not comply with the ECtHR case law in which a blanket ban on
prisoner voting is considered unlawful. Then prime minister David Cameron stated that “the idea of them [prisoners] getting the vote makes him physically sick." See: M. Holehouse, “David Cameron: I will ignore Europe’s top court on prisoner voting”, The Telegraph. Retrieved at:
http://www.telegraph.co.uk/news/uknews/law-and-order/11911057/David-Cameron-I-will-ignore-Europes-top-court-on-prisoner-voting.html.
53 This is the law in Hungary. See further: L. Khadar and J. Shaw, “Article 39 – Right to Vote and Stand: European
Parliament” in S. Peers e.a. (eds.) The EU Charter of Fundamental Rights. A Commentary (Hart, 2014) 1027, 1049 and ECtHR, Alajos Kiss v. Hungary, App. No 38832/06 (2010).
17 the subject multiple times.54 The Member States enjoy a wide discretion in their electoral laws, and as Advocate-General Cruz Villalón did stress in his Opinion,
(…) [i]t is necessary to take as the starting-point the wide variation identifiable in this regard between the different national laws, which are so diverse that, from the point of view of EU law, regard may be had only to the common minimum shared by the Member States and, consequently, to the
case-law of the European Court of Human rights.55
The refusal to regard the case law of the Strasbourg court will be particularly relevant for the constitutional analysis in chapter 4.
The fourth point of evaluation is the reason why Union citizens enjoy a right to vote in European Parliament elections. The Court confirms that the right to vote is connected to a specific representative body - the European Parliament – and that there is a direct representative relation between the two.56 Citizenship and democracy is connected as citizens have the right to vote to ‘their’ Parliament.57
Therefore, the Court gave European citizenship political rights.58
2.3 Concluding remarks
A wide application of the Charter brought the definition of who has the right to vote, a matter thus considered to be in Member State competences, to fall within the scope of EU law and to the level of fundamental right. Without expressly stating so, the Court confirmed that the European Parliament has representative value. In the next chapter I will argue that the fundamental right to vote that a fundamental right to vote fits uneasily in the framework and development of electoral laws at European level.
54
Article 3 of Protocol No. 1 confirms the right to fair elections. See ECtHR, Sitaopoulos and Others v. Greece (No 1), App. No 42202/07 (2010); Hirst v. United Kingdom (fn 40) (prisoner disenfranchisement); Doyle v. United Kingdom, App 30158/06 (2007) (limitation due to residence requirements); Alajos Kiss v. Hungary, App. 38832/06 (2010) (limitations based on mental health problems).
55
Case C-650/13, Thiery Delvigne v.Commune de Lesparre-Médoc, Préfet de la Gironde, Opinion of Advocate General Cruz Villalón, para 117.
56 Van Eijken and Van Rossem (fn 36), 125-126. 57
Khadar and Shaw (fn 53), 1038.
58 See: Van Eijken and Van Rossem (fn 36); Kochenov (fn 2). On political participation see also: D. Kochenov,
“European Citizenship and the difficult relationship between status and rights”, 15 Colum. J. Eur. L. (2008) 169, 197-205.
18
3. The roles of the Member States and the European Parliament in European electoral laws
In this chapter I will start with a historical and legal account of European electoral provisions. I will show that Member States protect their interests at the expense of autonomy of the European Parliament. Subsequently, I will elaborate on the aspects of European electoral laws that show a more autonomous Parliament.
3.1 (a) European electoral provisions
A ‘European Electoral Code’ has been envisioned by the Treaty drafters since the 1957 Treaty of Rome, where in Article 138(3) (and in the subsequent Treaty amendments) 59 it states that
‘The Assembly shall draw up proposals for elections by direct universal suffrage in accordance with a uniform procedure in all Member States.’
The reason a uniform procedure has not yet been established, is due to, inter alia, the special legislative procedure laid down in Article 223(1) TFEU. It consists of three steps. First, according to the first sentence of paragraph 1, the Parliament shall draw up a proposal to lay down the provisions necessary for the elections of MEPs by direct universal suffrage. Second, according to the second sentence of the paragraph, the Council can lay down necessary provisions, altering the first proposal. After consent of the Parliament, acting by majority of its component Members, the Council has to approve unanimously.60 Third, the Member states have to approve the provision in accordance with their constitutional requirements. In accordance with this procedure the Direct Elections Act was adopted in 1976 and amended in 2002.61
Through the Direct Elections Act the first elections by direct universal suffrage were held in 1979.62 It created a few harmonized rules. It installed the prohibition on double voting,63 a free mandate of the representative,64 incompatibilities between the function of representative and other European functions65 and the period between Thursday and Sunday in which the elections
59 Art. 138(3) EEC (Art. 21 ECSC; Art. 108 Euratom), Art. 109(4) EC and Art. 223(1) TFEU.
60 The consent of the Parliament to the Councils amendments was only possible with the Treaty revision in the
Treaty of Maastricht. Before, the Council could determine the provisions without consent of the Parliament.
61
Direct Elections Act (fn 3).
62 Art. 1 Direct Elections Act (1976 version). 63 Art. 8 Direct Elections Act (1976 version). 64
Art. 4 Direct Elections Act (1976 version).
65 Art. 6 Direct Elections Act (1976 version), most notably the office of MEP is incompatible with member of
government of a Member State, and thus the Council, and the Commission. In the 2002 amendment the office of MEP is now also incompatible with the office of member in the national parliament. See Art. 7 Direct Elections Act.
19 shall be held.66 Furthermore, the European Parliament shall verify the credentials of representatives and shall rule on any disputes which may arise out of the provisions of the Act, other than those arising out of the national provisions.67 In the 2002 amendment it added a system of proportional representation in Article 1(1) through either the list system68 or the single transferable vote69 and the incompatibility between a European mandate and a national mandate.70 On the basis of Article 8b (2) EEC (now Article 22(2) TFEU) as implemented in Directive 93/109/EC, a host Member State must allow residents who are citizen of another Member State to vote in the European elections similar to its nationals.71
Due to the limited harmonized rules, the Member States can retain their own electoral laws and enjoy a wide discretion in how to arrange the elections to the European Parliament.72 That can lead to variations between Member State laws in the following sections: the minimum threshold for the allocation of seats (not exceeding 5 per cent. as the European threshold),73 compulsory or voluntary voting, the constituency boundaries,74 eligibility requirements to vote, the requirements to stand for election, nominations by individuals or parties, the precise date of the election, voters’ options to alter the order of candidates on list, what entity validates the results75 and how seats vacated during the electoral term are filled.76 Concerning the latter, under Article 12(2) first sentence, a vacancy resulting from national provisions shall be informed to the Parliament, that shall ‘take note’ of the vacancy. Under the second sentence, ‘In all other cases’, the Parliament shall establish that there is a vacancy and inform the Member States.
66
Art. 9(1) Direct Elections Act.
67 Art. 12 Direct Elections Act.
68 In which a person votes for a political party or list and a person on that party or list. The national provisions may
not affect the proportional nature of the voting system. Art. 8 Direct Elections Act.
69
A ranked voting system in which a vote for a losing seat will transfer a winning seat according to the rank indicated by the voter. This system is used in Ireland and Malta for parliamentary elections and European elections. In European elections (but not national parliamentary elections) Northern-Ireland also votes through this system.
70 Art. 7(3) Direct Elections Act. 71
Council, Directive 93/109/EC laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals, OJ [1993] L 329/34.
72 Art. 8 Direct Elections Act. See EUDO database (fn 37). 73
Article 2A Direct Elections Act. Several Member States apply a threshold: this is set at 5% in France(depending on the constituency), Lithuania, Poland, Slovakia, the Czech Republic, Romania and Hungary; at 4% in Austria, Italy and Sweden; at 3% in Greece; and at 1.8% in Cyprus. A minimum threshold for the allocation of seats affects the probability of a seat for smaller political parties.
74 Art. 2 Direct Elections Act. 75 Art. 12 Direct Elections Act. 76 Art. 13 Direct Elections Act.
20
3.1 (b) The history of the Direct Elections Act
In the Treaty of Rome the Assembly was given the double task to propose a system for direct elections and a uniform procedure. The first Chairman of the Working Party, Ferdinand Dehousse, developed a proposal, the 1960 Draft Convention, that first and most importantly focused on the direct election by universal suffrage.77 Foreseeing obstacles, uniformity had come at second place, with the side note that that procedure should be ‘as uniform as possible’, after the expiry of a transitional period.78 The Draft was however met with silence in the Council, and the same applied to the second and third drafts submitted by Parliament in 1961 and 1962. For 14 years Parliament did not receive any response of the Council.79 Anastassopoulos describes how political forces stopped the implementation of direct elections. General Charles de Gaulle had come to power in France and ‘his opposition to direct elections was unconditional’, as it would weaken national sovereignty of Member States.80 French resistance would influence the outcome of the legislative procedure until 1974, after the change of power from De Gaulle and Georges Pompidou to Valery Giscard d’Estaing, who changed the direction of the Council’s position.81 As a result the Council requested Parliament to draw up a new proposal to replace the Dehousse Draft Convention in the 1974 Paris Summit, albeit with strong reservations from the UK and Denmark. Most of the work was already done by rapporteur Schelto Patijn and a month later Parliament adopted the resolution to be sent to the Council. This resulted in the adoption of the 1979 Direct Elections Act. However, as can be concluded from the above, the creation of a uniform procedure was put aside in order to secure direct elections by universal suffrage, as Member States were weary that a uniform procedure would infringe their state sovereignty.82 Later attempts of Parliament to reform the electoral laws and Europeanize the elections were blocked in the Council, up to a certain extent by France, most actively by the United Kingdom and supported by Denmark.83
77
Art.1 Draft Convention, EPA, Committee on Political Affairs and Institutional Matters, Working Party, Reports, draft Convention and related documents. CARDOC PE0 RP/POLI.1958 A0-0022/60 0040.
78 Art. 7 and 9 Draft Convention. From the start it was clear the uniformity did not mean ‘identical’: ‘Le Groupe de
Travail est toutefois tombé dáccord sur le fait que la notion d’uniformité n’est pas synonym de celle d’identité’. Dehousse in Pasquinucci (fn 8), 14 with further reference in footnote 21 therein.
79 Ibid., 27-28.
80 G. Anastassopoulos, The debate on the system of electing the members of the European Parliament, (Bruyland,
2002), 27.
81 Ibid., 30.
82 See also Shaw (fn 11), 105. 83 Anastassopoulos (fn 80),102.
21 Not only Member States have their reservations to reform the election procedure; in the Parliament there also were and still are disagreements on the substance of electoral laws. These reservations are firstly politically motivated, in order to stop the development of supranationalism at Union level, but MEPs also felt (and feel) constraints due to their familiarity with their own electoral procedure: ‘the majority of the politicians that were consulted by the Working Party said they supported the idea of a uniform electoral system but they admitted they would only agree with one if it followed more or less their own national system.’84
As a result, various proposals stranded early on in the Parliamentary Committee on Constitutional Affairs85 or were halted by disagreement between MEPs.86 The latest attempt to reform the Direct Elections Act, the 2015 Draft Resolution, was adopted with a majority of 52.2%, 315 MEPs voting for and 234 MEPs voting against, of which the proponents of the resolution represented only three party groupings.87 This means that the opposition to the proposal cannot only be assigned to anti-European parties. However, these parties were the only ones to speak up, as illustrated by Diane James of the EFDD-Group in the debate on the reform of the electoral law of the EU:
‘(…) electoral law is a matter for sovereign nations, not for this Chamber’88
In addition, as stated in the introduction, various national parliaments opposed the proposal drafted by Parliament rapporteurs MEPs Maria Hübner and Jo leinen on the basis that it violated
84
Ziccardi (fn 9).
85 Various proposals drafted by MEP Andrew Duff that did not pass the Committee on Constitutional Affairs. See
footnote 24 of the Opinion of AG Cruz Villalón in Delvigne.
86 See the 1985 Bocklet report that was accepted with 16 votes to 8 with 13 abstentions. This was considered a too
low majority and as a result no Parliament proposal under Article 138(3) EEC was submitted to the Council.
87 See European Parliament Resolution (fn 22), Data found on: Vote Watch Europe, “Reform of the electoral law of
the EU”, (Vote Watch Europe). Retrieved at: http://www.votewatch.eu/en/term8-reform-of-the-electoral-law-of-the-eu-motion-for-resolution-vote-resolution.html#/. Further, the resolution was adopted by the three party groups, European Peoples Party (EEP), S&D and ALDE. Still within these parties there were a significant amount of MEPs voting against. D. P. Frantescu, “Spitzenkandidaten, EU-wide constituency and ‘europeanisations’ of elections rules for 2019, MEPs asked”, (Vote Watch Europe, 2015). Retrieved at: http://www.votewatch.eu/blog/spitzenkandidaten-eu-wide-constituency-and-europenisations-of-elections-rules-for-2019-meps-asked/ and G. Gotev, “European elections reform backed by MEPs from three groups only”, (euractiv, 2015). Retrieved at:
https://www.euractiv.com/section/elections/news/european-elections-reform-backed-by-meps-from-three-groups-only/.
88
Diane James of UKIP on behalf of the EFDD-Group in: Reform of the electoral law of the EU (debates: PV 27/10/2015 - 16), 15 October 2015. Retrieved at:
http://www.europarl.europa.eu/sides/getDoc.do?type=CRE&reference=20151027&secondRef=ITEM-016&language=EN&ring=A8-2015-0286.
22 the principle of subsidiarity.89 As a result of this resistance, as I will show in the subsequent paragraph, in Treaty revisions and the one revision of the Direct Elections Act, the promise of a uniform procedure is watered down or removed from the legal provisions.
3.1 (c) Deviation from uniformity
Articles 138(3) of the EEC and 108(3) and (4) Euratom express a desire to create a truly European election. In the Treaty of Maastricht, while a uniform procedure was still not fashioned, the provision remained intact. However, a significant amendment was made to the text of the provision in the Treaty of Amsterdam. The Treaty drafters lowered the bar of a uniform procedure to a procedure in accordance with principles common to all Member States.90 This would make it easier to adopt common rules.91
In the amendment of the Direct Elections Act, adopted in 2002, certain noteworthy revisions were entered. In Article 7(2) in the 1976 version of the Direct Elections Act, it states that ‘Pending the entry into force of the uniform electoral procedure (…), the electoral procedure shall be governed in each member State by its national provisions.’92
The explicit reference to a coming European procedure is removed from the 2002 revision. Now, the electoral procedure shall simply be governed by each Member State.93 In the Spain v. UK and Eman and Sevinger cases the Court gave a small indication that it finds that the state of the law might change in the future. Namely, the matter of the competence of Member States to define who has the right to vote. The Court states that ‘in the current state of Community law, elections to the European Parliament are held in each Member State so that the representatives are to be elected in that State.’94
In my view the Court here referred to either a coming European procedure, or, rather, the possible influence of a stronger connection between the European Parliament and Union citizens, as described in chapter two.
89
See European Parliament, Reform of the electoral law of the European Union (2015/2035(INL)). Retrieved at: http://www.europarl.europa.eu/oeil/popups/ficheprocedure.do?lang=en&reference=2015/2035(INL)
90 Art. 190(4) EC.
91 See Ziccardi (9) and Pasquinucci (fn 8). 92
Not only shall the procedure now be governed by each Member State according to its own provisions. Also the reference to the pending procedure in Art. 11 Direct Elections Act (1976 version), which deals with the verification of the result of the elections, is removed.
93
Art. 8 Direct Elections Act.
94 Spain v. UK, para 77. This sentence is also used in relation to the definition of the persons entitled to vote and to
stand for election, which falls within the competence of each Member State in compliance with Community law; Eman and Sevinger, para 45.
23
3.2 An autonomous Parliament in an intergovernmental context
In the above described framework of European electoral laws I showed that a ‘European Electoral Code’ is met with resistance by both the Council and the Parliament, which reflects politicians’ connection with ‘their own’ electoral code. However, there are also legal provisions that indicate a more autonomous European Parliament.
Firstly, Kathelijne Buitenweg attributes an important claim to the ‘remarkable’ right of initiative granted to the Parliament in Article 223(1) TFEU. According to her, this shows that parliaments, and in this regard the European Parliament, ‘should be the locus of debate on decisions regarding whom they represent.’95
It is Parliament then that predominantly shapes the polity. The underlying claim of Article 223(1) TFEU is that Parliament should have a strong voice in the definition of the electorate and the way democratic representation at Union level is organised. However, although Buitenweg also emphasizes that it is not odd that Parliament is not fully autonomous on deciding on the electoral laws, European Parliament’s powers in that regard are exceptionally weak.96 The required unanimity vote in the Council and the approval of the Member States in accordance with their constitutional requirements show that ultimately the Member States have the political freedom to deal with European elections as they please. Advocate-General Cruz Villalón sees the relation between Parliament and the Member States in a more cooperative matter. He states that Article 223(1) TFEU ‘reveals the wish of the primary legislature to make the election of the Members of the European Parliament a “situation governed by EU law”, not exclusively but with the participation of the law of the Member States.’97
However, the history of electoral provisions shows that cooperation has been low. Thus, Parliament has a right of initiative, which shows that Parliament is granted a supranational relationship with the electorate, namely one by its own definition. However, in no way will that relationship be formed at the cost of Member State sovereign interests.
Secondly, in accordance with the Direct Elections Act the appointment of individual MEPs are still governed by Member States electoral provisions. This situation is confirmed by two cases
95 Buitenweg (fn 20), 103. 96
Ibid., 104-15. This was specifically the case before the Treaty of Maastricht, where it could not adopt or veto the result of its proposal to the Council. Now, according to Article 223(1) TFEU it has to assent to the final draft of the resolution.
24 before the CJEU. Firstly, in Jean-Marie Le pen v. European Parliament98 the Court underlined that when a MEP is stripped from its seat due to national provisions, a situation described in Article 13(2) Direct Elections Act, Parliament’s ‘taking note’ is not a legal act. In order to understand the significance of this statement a little background on the case is required. Mr. Le Pen was stripped from his seat in the European Parliament by the French authorities pursuant to his criminal conviction. The French authorities sent a declaration with this statement to the European Parliament. However, instead of asking Mr. Le Pen to leave his seat in the Chamber, the President referred the matter to the Legal Affairs Committee. This Committee stated that Mr. Le Pen could only be stripped from his seat if all national legal remedies were exhausted, and that he still had the possibility to appeal to the Conseil d’Etat. Only after the Conseil d’Etat dismissed his case did the President ask Mr. Le Pen to leave the chamber, five months after the French declaration, in which Mr. Le Pen still received a salary. Subsequently, Mr. Le Pen wanted to contest this act through the use of the annulment procedure of Article 258 TFEU, for which ‘taking note’ must be a legal act. The Court refused this stance, and declared that the earlier declaration of the French authorities bore legal effects.99 What is interesting about this case is that the President referred the matter on the basis of Rule 7 of the Rules of Procedures of the European Parliament. Thus on the basis of its own autonomous rules and procedures which create a relation with its Members outside the framework of the Member States. Similarly, it is now the European Parliament that pays the salary of the MEPs, instead of the Member States. Thus, through its own functioning the Parliament problematizes the intergovernmental structure of electoral provisions. The Court’s willingness to correct Parliament is apparent from another case. In Donnici, the Court struck down a decision of the European Parliament in which it performed its own validation of credentials of a candidate, instead of accepting the result of the election from the National Electoral Office. The Court ruled that extending its power to validate the decision of the National Electoral Office is a breach of the principle of conferral.100
3.3 Concluding remarks
In this chapter I started with an elaboration on the strong role of Member States in the adoption of European electoral provisions. Member States have opposed the introduction of a uniform
98
Case C-208/03 P, Jean-Marie Le pen v. European Parliament.
99 Ibid., para 50.
100 Joined Cases C-393/07 and C-9/08, Italian Republic and Beniamino Donnici v. European Parliament, paras
25 procedure and as a result the elections are still organized by the use of national electoral provisions. The Parliament has little autonomy in this regard, although it is granted a more autonomous function by its right of initiative in Article 223(1) TFEU. However, as I showed in chapter one, change in the electoral provisions has come from the introduction of European citizenship and the representative value of the European Parliament.
4. Electoral laws from a constitutional perspective
In the previous two chapters I set out the structure of European electoral laws: a fundamental right in a predominantly intergovernmental context. I seek to understand the relation between the supranational and intergovernmental elements from a constitutional perspective by using constitutional theories. To that effect, I will first reflect on the three dominant strands of theoretical constitutional thoughts on the nature of the EU legal order. Subsequently I will use these tools to analyse the constitutional structure of electoral laws.
4.1 Analytical framework: (a) Sui generis, constitutional pluralism and (b) Federal theory (a) Sui generis and pluralism
Holding both supranational and intergovernmental elements, the EU can no longer be described as an international organization because of its supranational aspects, but also not as a federal state due to its international aspect. Thus, according the Union itself, the Union is unique: a sui generis101, ‘un objet politique non identifié´.102
This conception causes great dissatisfaction with European constitutional scholars. According to Robert Schütze, the sui generis conception is not a theory; it is an ‘anti-theory’, for it refuses to look for commonalities with other legal orders, making it impossible to form external standards of analysis. 103 According to Bruno de Witte the term is ill-defined and vague104 and ignored by
101 W. Phelan, “What is Sui Generis about the European Union? Costly International Cooperation in a
Self-Contained Regime”, 14 ISR (2012) 367-385, 367; B. De Witte, “The European Union as an international legal experiment” in G. De Búrca and J.H.H. Weiler (eds), The Worlds of European Constitutionalism (CUP, 2012), 20.
102 Jacques Delors, formerly France’s Minister of Finance and President of the European Commission in 1985 in
Phelan, (fn 101), 367 and N. Walker, “The Idea of Constitutional Pluralism”, EUI Working Paper Law, No 2002/1, 78.
103 R. Schütze, Eurorpean Constitutional Law, (CUP, 2012), 44, 63. 104 De Witte (fn 101), 20.
26 public international lawyers.105 And according to Neil Walker, it does not help to describe the true nature of the Union. 106
In an attempt the provide a theory that on the one hand describes the ECJ’s creation of an autonomous EU legal order in which a forced constitutional discipline of national courts protects the primacy, unity and effectiveness,107 and that on the other hand also encompasses the protection of the autonomy of the Member States’ legal order by national courts,108 scholars have focused on the plurality of the legal orders. Constitutional pluralism is a theory that started with the essay of MacCormack.109 According to constitutional pluralist scholars the notion of indivisibility of sovereignty and hierarchy that dominates the thinking of both the ECJ and national courts stands in the way of a correct understanding of the EU.110 Constitutional pluralist Walker predicted that European thought would move away from its state-centeredness paradigm.111 Thus, in this characterization, the EU legal order is a ‘plurality of interacting systems,112 the nation-state constitutions (their peoples) and the European constitution (the
105 Public international lawyers classify the Union as a highly developed specimen of the species of international
organizations. De Witte (fn 101), 37 and further references in footnote 46. See a counter argument in the context of the Union as an international diplomatic actor by R.L. Boşilcă, “The European Union - a ‘Sui Generis’ International Diplomatic Actor: Challenges Posed to the International Diplomatic Law”, 14 RJEA 1 (2014) 22-33, 30.
106 Walker (fn 102), 79.
107 The Court requires constitutional discipline of national courts in that the principle of primacy entails that the
national legal order, including constitutional rules, may not undermine the effectiveness of EU law. In the constitutional judgments Costa-ENEL and Simmental the ECJ ruled that besides being directly effective to individuals (Van Gend & Loos), EEC law had primacy over national laws. Also regarding the protection of fundamental rights, national standards may not compromise the primacy, unity and effectiveness of EU law. Case 6/64, Flaminio Costa v. E.N.E.L; Case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal, para 17; See Case 11/70, Internationale Handelsgesellschaft, where the court ruled that national courts could not judge the validity of an EU measure in the light of national fundamental rights; Case C-399/11, Melloni, para 58-60; Joined Cases C-402 & 415/05 P, Kadi and Al Barakaat International Foundation v. Council and Commission, para 282, where the Court ruled that international agreements may not have an adverse effect on the autonomy of EU law.
108 The judgments of the German Constitutional Court have expressed a dominant view on the effect of Union law in
national legal orders. Regarding the source of autonomy of EU law, the German Court states that ‘the source of Community authority, and of the European constitutional that constitutes it, are the peoples of Europe with democratic constitutions in their states.’ 2 BvE 2/08, Treaty of Lisbon, Judgement of 30 June 2009, para 231. The national constitution as ultimate source of autonomy and sovereignty resulted in the development of national constraints or challenges to the working of EU law: (1) protection of fundamental rights (2) ultra vires review (3) protection of national identity. Thus, the national courts have developed a view in which their constitution remains the highest source of sovereignty. See. S. Douglas-Scott, Constitutional Law of the European Union, (PE, 2002), 278; Schütze (fn 103).
109 For the many account and further theoretical qualifications, see: K. Jaklic, Constitutional Pluralism in the EU,
(OUP, 2014).
110 See Ibid., 25; A. Gibbs, “Paths for Constitutional Thinking “Beyond the State”?”, 14 CYELS (2011-2012) 209. 111 Walker (fn 102), 25.
27 European people) are ultimately equally self-standing sources of constitutional authority that overlap heterarchically over the shared piece of territory of the European Union.113 European constitutionalism would encompass the different normative claims in the legal orders in order to solve the conflict between them.114 The constitutional (and normative) claims of the Union exist alongside those of the Member States.115
There are also critiques on this position. In the words of Douglas-Scott: ‘the only problem is that such a characterization presents the EU as fragmented and perhaps also undesirably incoherent, the antithesis of a unifying positivist vision.’116
Schütze argues that constitutional pluralism still assumes that sovereignty of the legal order – albeit legal orders – is indivisible. According to Joseph Weiler the theory is wrong in assuming that there will be ‘incommensurability of authority’ between the different legal orders, for which constitutional pluralism would provide the solution.117 Weiler argues that in federal states there is no incommensurability of authority. It simply depends on who has the authority in that particular polity; the federal authority trumps that over the Member State authority in the fields where it has competences. In that way, pluralism and monism are no normative opposites. E.g. in the field of competition law the authority of the Union trumps that of the Member States if the Union was a federal state.118
In conclusion, on the one side there is a theory of the nature of the Union where ultimately, the autonomy of the Union trumps Member States’ sovereignty. On the other, there is a theory that tries to encompass the different normative claims without deciding on an ultimate hierarchy. A third line of theory uses federal thought to explain the nature of the EU, a theory that has received more attention after the start of a political Union in the Treaty of Maastricht.119
113 Jaklic (fn 109). 114 Chalmers (fn 18), 215. 115 Walker (fn 102), 25. 116 Douglas-Scott (fn 109), 281. 117 Chalmers (fn 18), 214-5. 118
J. Weiler, “Epilogue”, in G. De Búrca and J. Weiler, Worlds of Constitutionalism (CUP, 2012) 15; See G. Letsas, “Harmonic law: the case against Pluralism” in the J. Dickson and P. Eleftheriadis (eds.), Philosophical Foundations of European Union Law (OUP, 2012), for a reflection on the debate tested alongside the classical debates in jurisprudence. Theoretics have argued that a non-hierarchical notion of law also means a different jurisprudential understanding of law, which according to positivist legal theory is a hierarchy with either a grundnorm or a rule of recognition is the highest authority of law.
