Emotion and the Vertical Separation of Powers: Ultra-Vires Review by National (Constitutional) Courts, and EU and International Law
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Monika Polzin
Abstract
Whether national (constitutional) courts are entitled to exercise ultra-vires review of the decisions of the European Court of Justice is not only a controversial question, but also one of the most emotive issues in European and constitutional law. This article questions firstly the general and often emotional criticism of national ultra-vires review in general and answers the fundamental question whether national ultra-vires review represents a threat or rather an asset to the rule of law at a national, European and international level. It argues that a national ultra-vires review is an important instrument to supervise the international judiciary provided that it is not abusive of the law. Secondly, the article analyses the PSPP Judgment and the Polish ultra-vires decision of October 21, 2021. It concludes that only the ultra-vires review of the German Constitutional Court meets the requirements for a rule of law based control. The final argument is that a rule of law based ultra-vires review should be seen as a crucial piece of the puzzle in the current process of delimiting vertical authority.
1 Introduction
Whether national (constitutional) courts are entitled to exercise ultra-vires review of the decisions of the European Court of Justice is not only a controversial question, but also one of the most emotive issues in European and constitutional law. Ultra-vires reviews seem to set off the fear of destruction of the European respective International Order. Strong emotion was triggered by the ultra-vires decision of the German Constitutional Court on 5 May 2020[1] concerning the European Central Bank’s Public Sector Purchase Programme (the PSPP Judgment) and the most recent decision of the Polish Constitutional Court on 7 October 2021[2] (the Polish Judgment). Both decisions were heavily, and often also very angrily,[3] criticised.[4] Whereas rejection of the Polish Judgment was quite unanimous,[5] certain authors welcomed the PSPP Judgment.[6] The main criticisms of the PSPP Judgment were that the use of ultra-vires review harmed the integrity of European Union (EU) law and, more specifically, the European rule of law.[7] The aim of this article is twofold, namely to (i) question the general (and often emotional) criticism of ultra-vires review in general and to answer the fundamental question of whether national ultra-vires review presents a threat or rather an asset to the rule of law at a national, European and international level (see 2. below) and (ii) analyse and assess the recent ultra-vires decisions in the PSPP Judgment and the Polish Judgment (see 3. below). The article will conclude with a brief final observation (see 4. below).
2 Ultra-Vires Review and the Rule of Law
To analyse the relationship between national ultra-vires review and the rule of law, this article will first focus on the international context, in particular the current process of delimiting vertical power as between the national, European and international levels. Due to the changing structure of international and European law in the past few decades, and the related proliferation of international judicial bodies and their decisions, a process of delimiting vertical power has been taking place in an unstructured and circumstance-specific manner, determined by the old rationale of trial-and-error. National ultra-vires review of EU actions, and also potentially of international law actions, are an important part of this development (see 2.1. below). This article will then address the fundamental question of whether national ultra-vires review constitutes a danger to the European and/or international rule of law (see 2.2. below).
2.1 Context: The Attempt at a Vertical Separation of Powers
The relationship between the national and international (including European) levels is changing. National, European and international norms are becoming increasingly interrelated. National courts regularly apply EU law and the Court of Justice’s case law.[8] The same holds true – albeit to a lesser extent – for particular areas of international law, for example, the jurisprudence of the European Court of Human Rights (ECtHR).[9] Furthermore, the number of EU secondary and tertiary legal actions,[10] and international rules[11] has increased in the last few decades. International norms are no longer limited to governing interstate relations, but increasingly regulate the rights and obligations of individuals and legal entities. Therefore, their content can be similar to national law in the classical sense. This characteristic is very pronounced in EU law. Numerous regulations govern individuals’ direct obligations.[12] Under international law, individuals have direct obligations, for instance, in the area of international criminal law, or indirectly through UN Security Council resolutions (which the Member States must implement) relating to travel bans or the freezing of bank accounts.[13] In the field of human rights, international and EU law even contain substantive constitutional provisions.
The increase in substantive provisions has been complemented by the proliferation of a new generation of international judicial bodies. With the establishment of the Court of Justice and the ECtHR in the 1950s,[14] a new era of international courts began. The number[15] of international courts[16] (including international arbitral tribunals) and other forms of quasi-judicial treaty bodies[17] has increased, and international judicial practice has grown overall.[18]
This so-called ‘new generation’[19] of international courts and other quasi-judicial bodies[20] no longer exclusively decides disputes between states with the ultimate goal of preventing war.[21] It also does so between states and individuals, in particular in the area of international human rights. Examples are the right of individual application to the ECtHR,[22] the filing of individual communications with the Human Rights Committee monitoring compliance with the International Covenant on Civil and Political Rights,[23] and the possibility for corporations to make investment-protection claims before international arbitral tribunals.[24] Another novelty is the possibility for international courts, such as the International Criminal Court, to convict individuals of their crimes.[25] Although the international judiciary generally exercises only weak control and cannot annul a nation’s laws,[26] and the binding character of its decisions may vary, it does exercise judicial ‘law-making’ power.[27] The decisions of international bodies and courts are, in many instances, no longer confined to resolving a single dispute,[28] but may also affect non-litigants.[29] The relevant judicial body[30] may use them as a precedent for future decisions and other international[31] and national[32] courts may refer to them. Furthermore, scholars, lawyers and politicians may cite them to justify their arguments or political decisions.[33]
Within this structure, the Court of Justice occupies a special position since it enjoys extraordinary authority due to the EU’s supranational structure. The Court of Justice is competent to impose a penalty if its decisions are not complied with,[34] review the compliance of the other EU institutions’ actions with EU law,[35] and give preliminary rulings.[36] The Court of Justice is the only international court[37] that has the authority to annul the actions of the relevant (supra-) national organization itself (see Art 263 Treaty on the Functioning of the European Union [TFEU]). Hence, it can serve as an example for potential new international courts with this broad authority, or for the question of whether such courts should be put in place at all.
2.1.1 The Attempt at Delimiting Vertical Power: An Unstructured Process
In this new structure,[38] a disorganized process of delimiting vertical power is taking place.[39] The process itself becomes visible whenever the national level does not comply with international or European rules, but instead contradicts them through national courts or other national institutions, like parliaments. More abstractly, the current process can be described as follows: the international level tests the scope of its authority and the national level reacts through criticism, acceptance or rejection.
Amongst the reactions at the national level, two basic situations[40] can be distinguished (even if this distinction can be very difficult to make in individual instances). On the one hand, there is misuse, in other words, the rejection of EU and international law occurs to shield an (authoritarian) constitutional order against the influence of international law.[41] On the other hand, there is the generally legitimate non-compliance with international provisions. The non-compliance with EU or international law occurs for a valid reason, such as safeguarding fundamental rights or the competence order. Aside from the underlying conflicts, which the present article considers, there are other conflicts, for example, between the Court of Justice and the Italian,[42] Czech[43] and Danish[44] constitutional courts, and the jurisprudence of the Court of Justice in Kadi. [45]
2.1.2 The Debate Regarding Interpretive Authority
In this process of ‘testing’ and either ‘contradicting’ or ‘accepting,’ two debates are particularly prominent. The first relates to the interpretive authority of the Court of Justice and other international judicial bodies. Although the discussion varies depending on the legal field involved, in essence, it concerns the limits[46] of evolutionary and dynamic interpretations.[47] Two different basic approaches exist: either international judicial bodies must interpret EU and international law innovatively and dynamically to (progressively) develop the relevant legal order, or they must do so rather reluctantly since they merely have delegated authority.
Under EU law, the Court of Justice’s approach of teleological interpretation,[48] and the associated focus on the effectiveness of the law, as well as its insufficient consideration of the constitutional principle of conferral (Art 4 and 5 Treaty on European Union [TEU]), have been criticised.[49] This is particularly true for the Court of Justice case law concerning the EU’s authority.[50] Recent examples of controversial decisions are the Singapore Opinion,[51] the Court of Justice judgment concerning the duty to label goods originating from an Israeli settlement territory,[52] and the Court of Justice judgments regarding Art 9 (3) Aarhus Convention.[53]
Underlying the dispute regarding the interpretive approach is a deeper conflict with the identity or self-image of the Court of Justice and EU law. As Schorkopf aptly puts it, the essential issue is the extent to which EU law represents an independent, value-based constitutional system.[54]
2.1.3 The Debate Regarding Hierarchy and the Scope of Review
Aside from the ‘old’ question relating to the applicable hierarchy as between national, EU and international law provisions, the second debate concerns the scope of review to be exercised by national (constitutional) courts. The discussion in both EU and international law relies on similar patterns of argument. EU law postulates the supremacy of European law.[55] International law requires States to act in conformity with international law[56] regardless of the relevant national law.[57]
Both under international and EU law, similar exceptions to the supremacy principle are contemplated. These include ‘ultra-vires actions’ and essential constitutional provisions. The latter is often discussed in EU law under the heading of constitutional identity.
At the level of EU law, the discussion regarding constitutional identity focuses on Art 4 (2) sentence 1 TEU, which states that the EU is obliged to respect the Member States’ ‘national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government.’[58] While the Court of Justice regards the national identity enshrined in Art 4 (2) sentence 1 TEU as a legitimate aim or concern to be considered when assessing whether there has been a violation of EU law,[59] this provision can also be understood as a limit on the primacy of European law.[60] The German Constitutional Court has adopted a different idea of constitutional identity. The eternity clause in Art 79 (3) German Basic Law is regarded as an ‘absolute’ limit[61] on the supremacy of EU law.[62] The German concept of identity is therefore one which is solely based on, and firmly rooted in, the German constitution.[63]
In the area of international law, there is a similar discussion. It regards the question of whether, and to what extent, a State can invoke essential constitutional provisions to justify violations of international law. There is a prominent article (from 2010) by Nollkämper titled, ‘Rethinking the Supremacy of International Law’.[64] Nollkämper argues that the national level (in other words, particularly a national court) has the right to disregard international law if it contradicts fundamental rights in the relevant national constitutional order when international law also recognises these.[65] Nollkämper’s idea relies on a substantive understanding of the rule of law.[66] A classic example of this is the Court of Justice’s reasoning in the Kadi jurisprudence.[67]
Furthermore, there is a discussion in international law as to whether ultra-vires actions of international organizations can be voided.[68] In international law, it is generally recognised that the authority of international organizations is limited and that they are not permitted to act outside of their competences.[69] However, it is disputed precisely who (each contracting party individually, the majority of the contracting parties, all contracting parties, or the international organization itself) can decide on the invalidity of an ultra-vires action, what the requirements are for determining an ultra-vires action and under which conditions (such as a severe and manifest transgression of powers[70]) an ultra-vires action can be considered void.[71]
The main reason for this legal ambiguity is the decentralised structure of international law. Absent any obligatory international judicial (or non-judicial) review of the actions of international organizations, no coherent criteria have been established. Therefore, conflicts regarding the delimitation of international organizations’ authority have not yet been conclusively[72] resolved in international law.[73] In addition, there is a marginal discussion concerning whether there is a right to non-compliance[74] if an international judgment is based on a severe transgression of authority. This discussion mainly concerns the ECtHR and is – for lack of courts equivalent to the Court of Justice – still in its early stages.
This is different in the field of EU law. Due to the unique status of the Court of Justice,[75] several discussions coincide, namely, regarding the limits of the EU’s authority in general, the scope of the Court of Justice’s interpretive authority, and who (the national courts or the Court of Justice) has the final say. The essential, and also very emotive, question is whether national courts can review whether the Court of Justice has acted within its interpretive authority.
Two logical, but conflicting standpoints therefore exist.[76] From an EU-law perspective, the Court of Justice has the authority to make a final decision on whether a legislative act of the EU and its organs (for example, a Regulation) complies with primary law (see Art 19 (1) sentence 2 TEU and Art 267 (1) (b) TFEU).[77] However, it follows from the perspective of national constitutional law that the EU only has the authority that has actually been conferred upon it. Therefore, a final national constitutional review of whether an action is ultra-vires is necessary.[78]
The second problem (which the academic discussion hardly considers) is that, although the prohibition on acting ultra-vires is a norm that is uniform across national, EU and international law, the precise requirements for determining whether an action is ultra-vires are unclear.[79]
2.1.4 Conclusion
Currently, a process of delimiting vertical power is taking place between the national, European and international levels. National ultra-vires review is part of this process. The main points that remain unsettled are the scope of the interpretive authority of international judicial bodies and the national level’s right of review.
2.2 National Ultra-Vires Review and Vertical Separation of Powers
This article will now focus on the core question of whether the national ultra-vires review of actions by the EU, an international organization, or an international judicial body or court, is an instrument for protecting the vertical separation of powers or instead constitutes a danger to the rule of law and the uniformity of EU and international law.
The first part of this section demonstrates that national ultra-vires review is suitable for securing the vertical and horizontal separation of powers (see 2.2.1. below). However, national ultra-vires review entails the risk of impairing the functioning of EU and international law. Therefore, additional criteria for determining an ultra-vires review process that is based on the rule of law, and is European- and international-law-friendly, will be proposed (see 2.2.2. below).
2.2.1 An Instrument for Protecting the Vertical and Horizontal Separation of Powers
National ultra-vires review is, at an abstract level, an instrument for protecting the vertical, as well as the horizontal separation of powers. This conclusion is based on the following fundamental arguments:
The prohibition against acting ultra-vires is not only a requirement of national constitutional law, but is also a norm which national and international law (including EU law) have in common.
National ultra-vires review can prevent and reveal when the EU, or any other international organization, is attempting to create new authority for itself. It therefore contributes to preventing the EU, or any other international organization, from granting itself undue authority.[80]
National judicial ultra-vires review is – aside from other mechanisms, like reactions from other national institutions – a central element in developing a specific canon of interpretation for the international judiciary. The purpose of national ultra-vires review is also to identify admissible dynamic interpretations and to specify inadmissible innovative interpretations.
In the absence of competent international institutions, national ultra-vires review is necessary in the field of international law.[81]
National ultra-vires review is also necessary from the standpoint of the horizontal separation of powers. It generally protects the rights of the national democratic legislator. It also indirectly safeguards democratic participation, since it ensures that amendments to primary law are not made by the Court of Justice, but rather by the Member States and (thereby) also national parliaments. The Court of Justice and EU are neither permitted, nor democratically legitimated, to extend their authority.[82] The same holds true for international law: the authority to amend an international treaty generally lies in the hands of the Member States.[83]
National ultra-vires review strengthens oversight over, and the responsibility of, the Court of Justice and other international courts and judicial bodies. This additional oversight is necessary since, as compared to the national level, the system of ‘checks and balances’ relating to the judiciary at the international level and (albeit to a somewhat lesser extent) at the EU level, is underdeveloped.
The lack of oversight over international judicial bodies is addressed in the context of the discussion about the (democratic) legitimacy of international courts in international law.[84] The starting point is that international judicial bodies – even though they have a weaker function when compared to national courts, as they are in general not entitled to declare national laws void[85] – are less accountable than the national judiciary. This initially follows from the ‘lack of legislative efficiency’[86] in international law. At the national level, the legislator controls the courts. The legislator can amend or abolish laws by majority decision if this decision does not agree with the judiciary’s reasoning. This democratic control exists only in a limited form at the international level. Amending international law is often a difficult and formal process, which generally requires the consent of each party to a treaty.[87] Commonly, termination is considered as a last resort.[88] The role of international judicial bodies therefore resembles national constitutional courts that review the constitutionality of national laws since constitutions can only be amended through specific and complex procedures with special majority requirements.[89]
Due to this limited supervision, there is generally more flexibility at the international level for judicial creativity and a greater risk that judges will develop innovative interpretations.[90] This risk is enhanced by indeterminate norms of international law.[91] A classic example for this is the notion of ‘fair and equitable’ treatment in international investment-protection law.
Furthermore, international judges are less involved in a national judicial tradition and less accountable to (national) public opinion than members of the national judiciary. Therefore, a greater danger of international institutional bias exists.[92]
These structural deficiencies also exist (although to a lesser extent) at the EU level.[93] In EU law, the modification of primary law is a difficult and lengthy process as, in general, a ratification procedure is necessary in every Member State,[94] and the ordinary revision procedure even provides for convening a Convention pursuant to Art 48 (2–5) TEU. Due to these formal obstacles and concrete negative experiences (like the failure of the Constitutional Treaty in 2005 and the tedious ratification of the Treaties of Maastricht and Lisbon), the Member States and the EU organs currently ‘dread’ a formal treaty amendment.[95] For the interpretation of secondary legislative acts, there is legislative review by the Court of Justice, which however remains weak.[96] The Commission has the right to propose an amendment pursuant to Art 17 (2) TEU. Neither the Council nor the European Parliament, as democratically legitimated organs, are directly entitled to do so. They merely have an indirect right to take the initiative, which is codified in Art 225 and 241 TEU.
In addition – also in the Court of Justice’s case – there are indications of institutional bias. This is visible in the Court of Justice’s case law regarding the delimitation of the EU’s authority. Here, in case of doubt, the Court of Justice decides in favour of the EU using the interpretative device effet utile.[97] Even critics of the PSPP Judgment refer to this.[98]
2.2.2 The Risk of Fragmentation
National ultra-vires review has also a dark side, as it has the potential to impair the effectiveness of the EU and/or every other international organization. It can lead to international or EU law not being applied at the national level and make the fragmentation of international law more likely.
Therefore, the specific exercise of the national ultra-vires review power is important. Only a national ultra-vires review that is firmly based on the rule of law can adequately fulfil its function to promote the separation of powers. Below, possible criteria for such an approach are developed.
The starting point is the undisputed assumption that ultra-vires review has to be practised restrictively. In general, under both international and EU law, such a review is only accepted as a last resort in the event of severe transgressions of authority. Regularly, preceding ‘dispute resolution proceedings’ are required between the national (constitutional) court and the international level. Therefore, a national ultra-vires review of EU law requires a request for a preliminary ruling submitted to the Court of Justice.[99]
However, the key question in this context is what the conditions are for assessing the transgression of authority as being so severe as to constitute an ultra-vires action.[100] This has also become evident in the discussion of the PSPP Judgment.
2.2.3 The Definition of a Severe Transgression of Authority
At an abstract level, there is consensus that a severe transgression of authority in the form of an ultra-vires action exists if a treaty amendment would have been necessary to claim that authority, and that not every error in applying the law constitutes an ultra-vires action.[101]
Therefore, the difficult distinction between a (still) admissible interpretation and an inadmissible treaty amendment is necessary. The theoretical difficulty lies in the issue that an interpretation is not a mathematical equation, but rather a creative process.[102] While the wording of a provision is traditionally regarded as the limit between interpretation and the justifiable development of the law,[103] the boundary between amendment and interpretation – with regard to a possible ultra-vires action – is regularly based on the methodological justification of an interpretation.[104] This also corresponds with the jurisprudence of the German Constitutional Court.[105]
The controversial and problematic aspect of this approach is the lack of precise criteria for determining whether an interpretation is no longer methodologically justifiable. During the current academic discussion of the PSPP Judgment, different (although vague and generally not further defined) concepts have been proposed to determine whether such a methodologically-incorrect interpretation exists. In essence, there seem to be two opposing perspectives.
The first assumes that such an interpretation exists only if the incorrectness is manifest and extreme.[106] In the absence of such a manifestly incorrect interpretation in the Court of Justice’s Weiss Decision,[107] the PSPP Judgment is regarded as incorrect.[108] Although the concept of manifest and extreme incorrectness is not further specified, it seems that such an incorrect interpretation would only exist if a Court of Justice judgment were so clearly[109] and manifestly incorrect that there would be no need for an additional in-depth evaluation.[110] An example would be a Court of Justice decision stating that Art 4 of the Charter of Fundamental Rights of the EU (the Charter) allows foreigners to be tortured.
The other perspective seems to assume the existence of a methodologically incorrect interpretation even in less extreme situations.[111] This approach takes into consideration the fact that it is not only incorrect interpretations of a manifest and extreme kind, which can amend a treaty. The key challenge is therefore to define what constitutes an interpretation that unlawfully amends a treaty. It is necessary to find a clear path forward in the delicate process of delineating between a merely poor and incorrect[112] interpretation, on the one hand, and a serious error that effectively leads to a treaty amendment on the other. This is essential to enable a differentiation between ultra-vires review and a mere review of legality.
This complex question can hardly be answered universally. Instead, it depends on an overall consideration that takes the specific circumstances of an individual case into account.[113] The starting point is that an international judicial body is bound to determine the content of a treaty with the aid of the methods of interpretation permitted in the relevant system. The applicable methods of interpretation in international law are the customary rules of interpretation of the Vienna Convention on the Law of Treaties (Art 31–33 VCLT). Under EU law, these are the methods universally recognised in the European legal traditions. Regarding the interpretation of primary law, these usually include the wording, context, objective and purpose, EU law as a whole, and the historical interpretation.[114]
The international judiciary’s discretionary scope depends not only on how precise the treaty provisions are, but also on the question of whether, and to what extent, the relevant treaty is designed as a dynamic or static system.[115] Moreover, it should also be taken into account that, as demonstrated above,[116] beyond the abstract application of general methods of interpretation, the scope of the interpretive authority of international and European courts (or other bodies) has not been definitively settled. It is not clear (at least for the moment) under which conditions an interpretation can be characterised as a manifest transgression of authority. Therefore, just as a still-reasonable, methodologically unsound interpretation exists, so does a still-justifiable basis for an ultra-vires action.
To categorise an action as ultra-vires, there must be a careful examination of whether the interpretive factors in the relevant system were, despite their relevance, not taken into account or manifestly misapplied. If so, the fact that these factors were ignored or misapplied must have led to an incomprehensible application of the interpretive methodology itself and/or an unintelligible outcome and/or the implausible disregarding of the essential principles of the relevant treaty (like the principle of conferral in EU law). Therefore, the overall view of the deficient interpretation would show that the content of the treaty had effectively been amended. Further indications for a methodologically incorrect interpretation could be severe shortcomings in the reasoning process or contradictions between the interpretation in question and the relevant court’s own case law.[117]
At the same time, it should be taken into account that, due to the current process of balancing interpretative authority, even the essential principles of the relevant treaty and its categorization as a dynamic or static system could be disputed, and that there is no absolute truth. In such a situation, the relevant national court has a wider discretion to find an action ultra-vires.
The present approach is clarified with the help of the Court of Justice’s Singapore Opinion.[118] In this Opinion, the Court of Justice adopted an interpretation of primary law that did not constitute an ultra-vires action, but that could be criticised as incorrect (see 2.2.3.1. below). Furthermore, there is an interpretation of primary law that can either be seen as an incorrect and poor interpretation, or as a still-justifiable ultra-vires action (see 2.2.3.2. below), and an interpretation that can in principle be clearly characterised as ultra-vires (see 2.2.3.3. below).
2.2.3.1 Potentially-Incorrect Interpretation Only
An example of a merely potentially incorrect interpretation is the Court of Justice’s decision that, due to Art 207 (1) TFEU, the EU has extensive exclusive authority relating to foreign direct investments.[119] This authority relates to authorising foreign direct investments as well as to the provisions regarding their protection, provided that they have a specific relationship to commerce between the EU and the relevant third State.[120] Hence, from the Court of Justice’s point of view, exclusive authority exists according to Art 207 (1) TFEU regarding all provisions for the protection of investors (the national-treatment obligation, the right to fair and equitable treatment, and the obligation to provide full protection and security as well as protection against expropriation) if they relate to foreign direct investments. The Court of Justice justified its finding on the basis that Art 207 TFEU relates to foreign direct investments, without distinguishing whether their authorization or protection should be regulated.[121]
This interpretation is disputed. Another approach suggests that Art 207 (1) TFEU only regulates the authorization of foreign direct investments.[122] The Court of Justice’s interpretation is however a methodologically correct and plausible interpretation. The Court of Justice based its interpretation on generally recognised interpretive methods, which are also relevant in this case: wording and context. The result of the interpretation is plausible, since it can be justified within the wording of Art 207 (1) TFEU, which is extensive and not restricted to the authorization of direct investments. Thus, there is no indication of an ultra-vires action.
2.2.3.2 Still-Justifiable Basis for Ultra-Vires Action Possible
By contrast, the Court of Justice’s finding that an implicit, shared competence for portfolio investments exists[123] can reasonably be categorised as an ultra-vires action. The question of whether the EU has external authority to conclude international treaties covering portfolio investments had already been heavily disputed before this judgment. The dispute concerned the questions of whether EU authority even existed in this area[124] and, if so, whether it was shared[125] or exclusive.[126] The German Constitutional Court declared in the CETA Judgment of 13 October 2016 that the EU lacked the authority to conclude agreements for portfolio investments.[127] Meanwhile, the Commission assumed, even before the Court of Justice’s opinion, implicit, exclusive external authority.[128]
The Court of Justice affirmed implicit shared authority based on Art 216 (1) alternative 2 TFEU,[129] Art 4 (1), (2) (a) TFEU.[130] According to Art 216 (1) alternative 2 TFEU, there would be implicit authority to conclude treaties if the conclusion of an agreement was ‘necessary in order to achieve, within the framework of the EU’s policies, one of the objectives referred to in the Treaties’. The conclusion of international treaties regarding portfolio investments was necessary to achieve in full the free movement of capital and payments protected by Art 63 TFEU.[131] The freedom of movement of capital and payments was not formally binding on third States and therefore an international treaty regarding the authorization and protection of portfolio investments would contribute to the applicability of this fundamental freedom between EU Member States and third States.[132]
The Court of Justice affirmed, based on a dynamic interpretation of the free movement of capital, implicit and extensive authority to conclude investment treaties (with the exception of the dispute-resolution system).[133] In principle, this is a plausible interpretation. The Court of Justice justified the authority to conclude treaties on the basis of the logical argument that an investment-protection treaty regarding portfolio investments would contribute to fully achieving the free movement of capital between EU Member States and third States. However, the problem is that this determination was merely based on an objective and evaluative[134] interpretation of Art 63 TFEU, but the wording of Art 207 (1) TFEU points to the opposite conclusion, namely that there is no EU authority for portfolio investments.
This is particularly problematic since this opposite conclusion is supported by the intention of 24 Member States, which argued before the Court of Justice that the Member States have exclusive authority in this area.[135] In addition, the Court of Justice ignored the historical development of the EU’s authority in the field of investment protection. The Court of Justice negated the argument that, with the extension of Art 207 (1) TFEU to direct investments by the Treaty of Lisbon, the Member States only intended to grant the EU authority for foreign direct investments, but not for other investments.[136] The Court of Justice’s interpretation ignored contextual and historical arguments[137] without further justification. The same holds true for the principle of conferral. Therefore, the Court of Justice’s interpretation can justifiably be regarded as an amendment to Art 207 (1) TFEU and classified as an ultra-vires action with a basis that is still justifiable.
2.2.3.3 A Clear Ultra-Vires Action
The Court of Justice’s conclusion that shared external authority for establishing an investor-state dispute resolution system for direct and portfolio investments exists is a clear ultra-vires action. Its justification encompasses only two short paragraphs[138] and does not specify a legal basis for this authority. In addition, the Court of Justice does not distinguish between foreign direct investments and other investments. Rather, the Court of Justice’s reasoning proceeds as follows:
First, it denies exclusive EU authority. The investor-state dispute system is not ancillary like the classic dispute-settlement provisions under international law.[139] The argument is that an investor-state dispute resolution system would enable investors to withdraw claims from the jurisdiction of the Member States’ courts.[140] The investor can independently decide whether to initiate arbitration proceedings. The Member States would not be able to oppose this decision, since their consent is deemed to have been obtained through the conclusion of the free-trade agreement.[141]
Then, the Court of Justice draws the conclusion that an investor-state dispute resolution system could not ‘be established without the Member States’ consent’[142] since disputes would be removed from the jurisdiction of the Member States’ courts. The consequence would be that approving an investor-state dispute resolution system would fall within the shared authority of the EU and the Member States.[143]
This justification is incomprehensible. The Court of Justice does not specify a basis for this authority and ignores the principle of conferral completely. In addition, the Court of Justice does not engage in an interpretation since it names no provision. The Court of Justice instead places itself in the role of an omniscient[144] decision-maker and creates a new-shared authority.
2.2.4 Preliminary Conclusion
A severe transgression of authority exists when there is no interpretation, but rather a treaty amendment, for which the consent of the parties to the treaty would be necessary. This must be determined based on an overall assessment of the relevant circumstances. In the absence of any absolute truth regarding the exact requirements for an ultra-vires action, national courts enjoy a certain discretionary scope. Therefore, just as a still-justifiable, methodologically incorrect interpretation exists, so does a still-justifiable basis for an ultra-vires action. Due to this judicial discretionary scope, it is essential to develop further superordinate criteria to guarantee that ultra-vires review is not exercised in a law-abusing manner.[145]
2.2.5 Protection Against Abusive Practices
Three essential criteria[146] are proposed as additional indicators to determine or preclude ultra-vires review that abuses the law. These additional criteria should be considered in particular if the ultra-vires action is only qualified as still- justifiable and should be taken into account as part of the overall assessment.
2.2.5.1 The Relevant National Court’s Independence and Impartiality
The first indicator for a practice that abuses law could be the lack of independence or impartiality of the national (constitutional) court in the sense of Art 6 (1) ECHR, Art 47 (2) of the Charter, or Art 14 (1) sentence 1 of the International Covenant on Civil and Political Rights. This would usually be open to question in the case of States that are already dictatorships or are transitioning towards an authoritarian regime.
A court must be independent from the other branches of power (the executive and the legislature) and other parties to the proceedings.[147] The ECtHR considers the method of appointment of the court’s members, their term of office and the existence of guarantees against outside pressure.[148] The court must present the appearance of independence.[149]
The ECtHR defines impartiality based on a subjective and objective test.[150] The first aspect of the test concerns the judge’s personal convictions and concrete behaviour.[151] The second aspect refers to the objective composition of the court.[152] The question is whether the tribunal itself, and in particular its composition, offers sufficient guarantees to exclude any legitimate doubt as to its impartiality.[153] The objective approach is therefore closely linked to the notion of independence. Both are usually examined together.[154]
2.2.5.2 Case Law in Other Proceedings
The relevant national (constitutional) court’s case law in other proceedings that concern provisions of international and/or EU law must be considered. If the case law generally shows openness and friendliness towards international and European rules, and if those are usually applied, this is an indication that the relevant practice of an ultra-vires review is not abusive of the law.
2.2.5.3 The Subject of the Dispute
Finally, the subject-matter of the dispute is relevant. An abuse would be more probable if the dispute was related to a possible violation of EU or international law by the national State than it would be, if the case was independent of such a possible violation. A good indicator of a practice that is EU- or international-law-friendly will be, that the national court does not seek to justify a possible violation by its own State, but instead intends to improve the relevant international order (by eg improving the international rule of law).
3 An Evaluation of the PSPP Judgment and the Polish Judgment
3.1 The PSPP Judgment
The PSPP Judgment can be seen as a rule of law-based ultra-vires review as the German Constitutional Court (1) reasonably categorised the Weiss judgment of the Court of Justice as an ultra-vires action and (2) as there are no indications of an abuse of law.
3.1.1 Justifiable Categorization as an Ultra-Vires Action
3.1.1.1 Background
The background to the PSPP Judgment was the introduction of the Public Sector Purchase Programme (PSPP) by the Governing Council of the European Central Bank (ECB) in 2015[155] and therefore, in particular, the Decision (EU) 2015/774 of the Governing Council of the ECB of 4 March 2015 on a secondary-markets public sector asset purchase programme.[156] 1747 plaintiffs in total[157] lodged a constitutional appeal against the PSPP before the German Constitutional Court. They claimed amongst other things that the establishment of the PSPP violated the principle of conferral pursuant to Art 5 (1) TEU read with Art 119 and Art 127 TFEU.[158] The German Constitutional Court accepted these claims and suspended the proceedings through its decision of 18 July 2017.[159] Pursuant to Art 267 TFEU, it submitted a total of five questions to the Court of Justice concerning the PSPP.[160] The most crucial in this context was the third: the Court asked whether Decision (EU) 2015/774 had exceeded the ECB’s monetary-policy mandate and thus encroached upon the authority of the Member States. The Court of Justice decided on this point in its judgment of 11 December 2018[161] and confirmed that the ECB was authorised to establish the PSPP as it fell under the heading of monetary policy[162] and its actions were proportionate.[163]
The German Constitutional Court then ruled in the PSPP Judgment that the Court of Justice decision was ultra-vires. It mainly criticised the Court of Justice’s proportionality assessment as being ultra-vires since it would ‘manifestly fail’ to consider the significance and scope of the principle of proportionality in accordance with the second sentence of Art 5 (1) as well as Art 5 (4) TEU.[164] The proportionality assessment was ‘no longer tenable from a methodological perspective’[165] since the Court of Justice ‘completely disregard[ed]’ [166] the actual effects of the PSPP. Therefore, the Court of Justice’s interpretation essentially rendered the principle of conferral in Art 5 (1) first sentence and Art 5 (2) TEU meaningless.[167]
3.1.1.2 The Dispute Regarding the Proportionality Assessment
The Court of Justice affirmed the proportionality of the ECB decision 2015/774 pursuant to Art 5 (4) TEU read with Art 119 (2) and Art 127 (1) TFEU.[168] The Court of Justice granted the ECB a broad discretion because the establishment of the PSPP would concern decisions of a technical nature and would not entail the undertaking of complex forecasts and assessments.[169]
In a five-paragraph-long discussion on suitability,[170] the Court concluded that it did not appear that the ECB had committed a manifest error of assessment regarding the question of whether the PSPP had been appropriate to contribute to price stability.[171] This conclusion was justified on the basis of the recitals in Decision 2015/774, the documents published by the ECB at the time of adopting that Decision (without further specifying these) and the observations submitted to the Court of Justice.[172] It also ruled that the PSPP did not manifestly go beyond what had been necessary to achieve price stability.[173] A more limited measure would not have been evident.[174] In this regard, the Court of Justice referred to information from the ECB itself, according to which no other type of monetary policy measure would have been available.[175] Considering the information in the documents before it and the ECB’s broad discretion, it would not have been apparent that a PSPP of a more limited volume or of a shorter duration would have been as effective.[176] The ECB had weighed up the various interests involved so as to effectively prevent disadvantages that would have been manifestly disproportionate to the PSPP’s objective.[177] The Court of Justice referred to the Opinion of the Advocate General[178] and only discussed the risk of losses.[179]
This finding was criticised by the German Constitutional Court as no longer methodologically tenable and therefore as an ultra-vires action. The first argument, according to the German Constitutional Court, was that the principle of proportionality pursuant to Art 5 (1) sentence 2 and (4) TEU also applies to the allocation of authority.[180] It has to be used to distinguish whether a measure falls within the field of economic policy (which in principle falls within the authority of the Member States pursuant to Art 5 TFEU) or monetary policy (which falls within the exclusive authority of the EU).[181] A measure can be disproportionate because of its effects in the field of economic policy.[182] The Court of Justice should have considered the PSPP’s effects on, for example, public debt or savings and pension schemes to decide whether the PSPP constituted an economic- or monetary-policy measure.[183]
Moreover, since the Court of Justice had accepted as fact without further scrutiny the monetary-policy objective indicated by the ECB[184] and disregarded the foreseeable and/or intended consequences of the programme in the areas of economic and fiscal policy,[185] the ECB had been permitted to decide independently on the authority conferred upon it.[186] In addition, the Court of Justice’s approach enabled the ECB to choose freely any means that it considered suitable – even if the benefits were minimal and the collateral damage significant.[187] Moreover, the disregard for the PSPP’s economic-policy effects had the outcome that the proportionality assessment was ‘rendered meaningless’.[188] As a further consequence, the Court of Justice had not conducted an effective judicial review of the ECB’s actions.[189]
3.1.1.3 Classifying the PSPP Judgment
The German Constitutional Court’s ultra-vires finding can be categorised as one which relates to an ultra-vires action that is still justifiable and plausible.[190] An analysis of the Court of Justice’s decision shows that it merely engaged in a formal interpretation of the relevant provisions (particularly Art 127 (1), Art 119 TFEU). It ignored the differentiation between the EU’s exclusive authority as regards monetary policy (Art 3 (1) letter c) TFEU) and ‘competence to coordinate’ as regards economic policy (Art 5 TFEU). The Court of Justice did not address directly the problem of the delimiting areas of authority. Rather, the Court of Justice conducted an exceptionally reluctant assessment of the ECB’s actions and neglected the particularity of EU law as a delegated legal order. Overall, the Court of Justice merely carried out a plausibility review:[191] In essence, it only considered whether, according to the ECB’s own statements, the ECB’s authority was indeed plausible.[192]
This categorization is not contradicted since the German Constitutional Court adopted a new meaning of the principle of proportionality in Art 5 (1) sentence 2 and (4) TEU, namely that it also serves the purpose to delineate areas of authority.[193] Defenders of the Court of Justice’s judgment rely on the argument that the Court of Justice simply followed the structure of Art 5 (1) and (4) TEU[194] and that this Art only provides that the principle of proportionality does not apply to delimiting authority between the Member States and the EU, but rather only concerns the exercise of the EU’s own authority.[195] This criticism does not preclude the above categorization of the Court of Justice’s decision as an ultra-vires action that still has a justifiable basis, since the criticism is based on an overly-narrow reading of the German Constitutional Court’s ruling and the Court of Justice’s reasoning. The Court of Justice’s reasoning is considered in isolation apart from its actual context and the German Constitutional Court’s essential argument. Even though a proportionality assessment limited to a plausibility review can generally be tenable,[196] in the present context it can be categorised as a justifiable ultra-vires action, since it disregards the principle of conferral. Due to the Court of Justice’s limited judicial review, the ECB was effectively granted the possibility of independently extending its authority.
Therefore, the German Constitutional Court justifiably categorised the judgment as ultra-vires. It demonstrated that the Court of Justice’s interpretation of primary law negated the principle of conferral and the ECB was therefore granted the possibility of adopting measures in the field of economic policy not foreseen by the treaties.
3.1.2 A Review Abusive of the Law?
There are no indication that the German Constitutional Court’s review abused the law. The independence and impartiality of the German Constitutional Court pursuant to Art 6 (1) ECHR is not in question. In addition, the PSPP judgment is not about justifying a violation of EU law by Germany. Rather, the emphasis is on the scope of judicial review relating to the ECB[197] and the exact delimitation of the EU’s authority.[198] Furthermore, it follows from the German Constitutional Court’s jurisprudence that the primacy of EU law is, in principle, recognised.[199] EU law is applied in Germany on a daily basis. The deep recognition of the interdependence between the legal orders of Germany and the EU is clearly apparent in the decisions Right to be forgotten II and I.[200]
3.1.3 Conclusion
Since the review by the German Constitutional Court can be qualified as a rule-of-law based ultra-vires review, the PSPP judgment is in conformity with the German Constitution. The German Basic Law only grants authority to the EU to the extent that the authority was conferred by the German Act of Approval.[201] Moreover, the German Constitutional Court justifies this constitutional conformity in the OMT judgment on the basis of Art 79 (3) German Basic Law read with Art 20 (1) and (2) German Basic Law.[202] A transgression of authority by the EU and its organs would violate the principle of popular sovereignty protected by Art 79 (3) German Basic Law.[203]
From the perspective of EU law, the Court of Justice generally has the authority to make the final decision concerning actions which transgress authority, and not national (constitutional) courts.[204] It would be desirable however if the principle of conferral pursuant to Art 4 (1), Art 5 (1) and (2) TEU read with Art 19 (1) sentence 2 TEU and Art 4 (2) sentence 1 TEU were in future understood in such a way as to ensure that the non-application of EU law in an ultra-vires review founded squarely on the rule of law is not viewed as a violation of that law.
3.2 The Polish Judgment
In the absence of an official English translation of the full text of the Polish ultra-vires judgment of 7 October 2021 and the dissenting opinions of judges Piotr Pszczółkowski and Jarosław Wyrembak [205] the exact classification is difficult and can only be a preliminary assessment. However, the analysis of the official English summary suggests that the judgment does not contain a still-justifiable basis for an ultra-vires action (3.2.1.). Moreover, there are further indications that the review is abusive of the law (3.2.2.).
3.2.1 The Lack of a Still Justifiable Basis for an Ultra-Vires Review
3.2.1.1 Background
The background is the reform of the Polish judiciary and the subsequent conflict between the European Union and Poland on the rule of law.[206] The re-structuring of the Polish judiciary was part of the Commission’s proposal in accordance with Art 7 (1) TEU regarding the rule of law in Poland[207] and was (and still is) subject of various proceedings before the Court of Justice.[208] The Polish Constitutional Court held inter alia that the Court of Justice has created a new competence on the basis of Art 19 (1) TFEU[209] and refers to the decisions that ruled on the organization of the Polish Judiciary (C-619/18 and C-192/18 [infringement proceedings of the Commission], the joined Cases C-585/18, C-624/18, C-625/18, the joined cases C-558/18 and C-563/18 and the Case C-824/18 [all preliminary rulings requested by Polish Courts]).[210]
3.2.1.2 The Court of Justice Judgments
The first two Court of Justice judgments (C-619/18 and C-192/18) were initiated by the Commission on the basis of Art 258 TFEU and were adopted in 2019.[211] The Court of Justice decided in both cases that the relevant laws constitute an infringement of the second subparagraph of Art 19 (1) TEU.[212] The first one (C-619/18) concerned the New Law on the Supreme Court of 10 May 2018 that lowered the retirement age of judges of the Polish Supreme Court to 65 and granted the President of the Republic the discretion to extend the period of judicial activity of judges beyond the newly fixed retirement age.[213] Object of the Judgment C-192/18 were further legislative amendments that introduced different retirement ages for men (65) and woman (60) who are either judges in the ordinary Polish courts, the Supreme Court or public prosecutors.[214]
Both judgments are based on a broad interpretation of Art 19 (1) TEU which was already developed in the AJSAP Judgment in 2018.[215] The Court of Justice justified its competence to examine the relevant Polish laws particularly[216] with Art 19 TEU as it gives concrete expression to the value of the rule of law affirmed in Art 2 TEU.[217] It is the responsibility of the Court of Justice and the national courts to ensure the full application of EU law and judicial protection of the rights of the individual.[218] The second subparagraph of Art 19 (1) TEU obliges the Member States to provide sufficient remedies to ensure effective judicial protections for individuals in the fields covered by EU law, ‘irrespective of whether the Member States are implementing Union law within the meaning of Art 51 (1) of the Charter’.[219] The Court interpreted Art 19 (1) TEU through the lenses of Art 47 of the Charter[220] and held that the Polish laws did not meet the requirements. The judgments differ from the opinion of the Advocate General Tankev concerning a dispute over Art 51 of the Charter. The Advocate General argued that Art 47 of the Charter cannot be applied to the framework of Art 19 (1) TEU without demonstrating that the conditions of Art 51 of the Charter are met.[221]
Regarding the request for preliminary rulings, the Court of Justice ruled mainly[222] on Polish national follow up proceedings after lowering the retirement age to 65. The first judgment relates to court actions by Polish judges against their retiring at 65 resp the unfavourable decision to their request to continue their position.[223] The dispute should be decided by the Disciplinary Chamber of the Supreme Court but the referring chamber of the Supreme Court (the Labour and Social Insurance Chamber) had doubts regarding its impartiality.[224] The Court of Justice decided that Art 47 of the Charter and Art 9 (1) of Council Directive 2000/78/EC of 27 November 2000 are to be interpreted in such a way as ‘precluding cases concerning the application of EU law from falling within the exclusive jurisdiction of a court which is not an independent and impartial tribunal, within the meaning of the former provision.’[225] The referring court has to decide whether the Disciplinary Chamber of the Disciplinary Chamber is such a court.[226] If the referring court concluded that the Disciplinary Chamber was not independent and impartial, the primacy of EU law would require the court to disapply the provision of national law on the allocation of competences in order to assure that the cases are examined by an independent court.[227]
The final Case (C-824/18)[228] concerned legal remedies of Polish judges during the appointment proceedings of positions for the Polish Supreme Court. In the main proceedings, the Polish Supreme Administrative Court had to decide disputes between different applicants and the National Council of the Judiciary (‘KRS’) concerning resolutions by which the latter decided not to propose certain persons as judges to the President of the Republic of Poland but to propose the appointment of other candidates.[229] The Chamber first turned to the Court of Justice because of rules in the relevant Polish law that allegedly undermined the court’s ability to carry out a genuine review of the selection procedure of the KRS and asked whether they were in conformity with European Union law.[230] However, after the conclusion of the written part of the proceedings before the Court of Justice, the referring court submitted an additional third question for a preliminary ruling as the relevant Polish laws were changed. The new Law on the National Council of the Judiciary and the Law on the System of Administrative Courts of 26 April 2019 stated that there should be no right of appeal in individual cases regarding the appointment of Supreme Court judges and that any ongoing individual appeals shall be discontinued by operation of the law.[231] The third question related to the problem whether such modifications were in conformity with European Union Law, as they would deprive a national court from ruling on appeals by non-appointed candidates for a position at the Polish Supreme court. The modifications would thus deprive the national court of the possibility of obtaining an answer to a preliminary ruling. In addition, the referring court asked whether the principle of primacy of EU law must be interpreted as to disapply those modifications and to empower the court to assume jurisdiction over the relevant disputes.[232] Based on Art 267 TFEU and Art 4 (3) TEU the Court of Justice ruled that national laws that have the specific effects of precluding a preliminary ruling in accordance with Art 267 TFEU are prohibited and that it is ultimately up to the national court to decide whether that is the case.[233] In addition the Court of Justice decided consonant with its previous case law that the Supreme Court has to be independent in accordance with the second subparagraph of Art 19 (1) TEU and Art 47 of the Charter.[234] It then ruled that it is ultimately for the referring court to decide whether judges appointed on the basis of KRS are still independent and impartial.[235] Lastly, the Court of Justice stated that the principle of the primacy of EU law would require the national court to disapply national rules that are a breach of Art 267 TFEU and Art 4 (3) TEU or Art 19 (1) TEU. The referring court should, in the absence of another designated independent court, continue to assume jurisdiction if such breaches exist.[236]
3.2.1.3 The Polish Judgment
After the last judgment the Polish Prime Minister Mateusz Morawiecki submitted a petition to the Polish Constitutional Court and asked whether certain understandings of Art 1 (1 and 2) TEU in connection with Art 4 (3) TEU, Art 19 (1) TEU in connection with Art 4 (3) TEU and Art 19 (1) second subparagraph TEU in connection with Art 2 TEU were in conformity with the Polish Constitution.[237]
The Polish Constitutional Court ruled in favour of the Prime Minister (by a majority vote). It first decided on the constitutional limits regarding the interpretation of the wording ‘a new stage in the process of creating an ever closer union among the peoples of Europe’ in Art 1 (2) TEU and developed three conditions.[238] These conditions can be seen as general limits in Polish Constitutional law regarding the application of European Union law: The EU authorities have to act within the scope of their competences, the Polish Constitution is not deprived of its primacy[239] and the Republic of Poland remains a sovereign and democratic state.[240] The court also abstractly defined that the EU has to act within ‘competences conferred on the Union in the Treaties as well as set by the obligation to respect the constitutional identity and the fundamental functions of the state (Art 4 (2) of the TEU) and moreover within the limits arising from the principles of proportionality and subsidiarity (Art 5 (1) of the TEU)’.[241]
Afterwards, the Polish Court refers to the decisions of the Court of Justice mentioned above to show that the Court of Justice decided on the basis of Art 19 (1) second subparagraph TEU on the organizational structure of the Polish courts.[242] It then argues that organizational structure of the Polish courts is a competence that cannot be transferred to the European Union in accordance with Art 90 (1)[243] of the Polish Constitution and is therefore part of the Polish constitutional identity.[244] Furthermore, the Court declared: ‘the deriving of the Court of Justice’s competences to control the functioning and organizational structure of the judicial system in an EU Member State from Art 19 (1), second subparagraph, of the TEU constitutes an example of creating new competences on the part of the Court of Justice.’[245] First, the values of Art 2 TEU are not a source of the Court of Justice’s competences to adjudicate on the organizational structure of Polish courts, as they are not ‘legal principles’.[246] Second, the organizational structure of the judicial system is not part of the common constitutional identity of the Member states, because divergent rules for the appointment of judges exist.[247] Third, the Polish Constitution lays down the framework of the legal guarantees for the independence of judges and cannot be replaced by the Court of Justice’s interpretative guidelines.[248]
Lastly, the Tribunal generally deals with a conflict between constitutional and European law. The tribunal distinguishes between irremovable conflicts (that are very rare, if they exist at all) between EU law and the Polish Constitution which should be resolved by amending Constitution, changing EU law or leaving the EU[249] and other conflicts of norms. Here a dialogue is necessary.[250]
The judgment ends with the announcement that the Court reserves its competence to examine the constitutionality of all judgments of Court of Justice ‘if CJEU’s practice of progressive activism’ continues and to disapply those judgments within the Polish legal order.[251]
3.2.1.4 Classification
Based on the official summary provided by the court there are strong indications that the judgment lacks a justifiable basis for an ultra-vires review as the court adopts a national constitution centered view. This view determines not only the rejection of a preliminary ruling,[252] but also precludes a detailed scrutiny of the decisions of the Court of Justice. The court does not deal with the interpretation methods used by the Court of Justice or its justifications. It only asserts that the Court of Justice created a new competence on the basis of Art 19 (1) TFEU, but apart from a reference to Art 2 TEU it does not give detailed reasons based on the structure of European Union law. It relies primarily on its constitutional provisions. Therefore, there is no basis for determining a still justifiable ultra-vires act. In addition, the lack of engagement with the reasoning of the Court of Justice prevents a dialogue over the limits of new and creative interpretations of European Union Law. The lack of arguments is even more surprising as the case law of the Court of Justice is not uncontroversial. The court could have stated methodological arguments to support the claim that the Court of Justice has in part overstepped its competences. It would have been possible to critically discuss the bold interpretation of Art 51 (1) of the Charter[253] or the innovative[254] interpretation of Art 19 (1) TEU[255] that operationalizes the value ‘rule of law’ in Art 2 TEU.[256] The judgment could have also considered the limits for the application of Art 2 TEU in the interpretation of Art 19 (1) TEU due to Art 296 TFEU and Art 7 TEU.[257] Finally, it could have addressed the fundamental question under which conditions the Court of Justice would establish itself as a general Constitutional Court that supervises the constitutional structure of the member states.[258] None of these questions were addressed. The summary remains vague and hard to grasp. In addition, the approach of the Court remains (in particular for a non-Polish speaker) completely intransparent as the full version is not made public in English. An E-Mail to the court asking for such a translation remained unanswered.[259]
3.2.2 Abuse of Law
In addition, there are further indications for an abuse of law of the ultra-vires control. There are strong signs that the Polish Constitutional Court qualifies no longer as an independent and impartial court.[260] In a recent judgment the European Court of Human Rights Court ruled that the flawed procedure for electing 3 judges in 2015 impaired the legitimacy of the election process and undermined the ‘very essence of the right to a tribunal established by law’ in Art 6 ECHR.[261] Finally, the summary radiates (even though the judicial dialogue is stressed) a certain kind of hostility towards the Court of Justice as the Court announces that it might review all the Court of Justice judgments on the basis of the Polish Constitution. The general critical attitude to international law is confirmed by a recent Judgment of 24 November 2021 that declares the just mentioned interpretation of Art 6 ECHR unconstitutional.[262]
3.2.3 Conclusion
There are very strong indications that the Polish judgment is not a rule of law based ultra-vires review. However, a final analysis is impossible, as the full text of the judgment is not available. The tragedy behind that is, that the case law of the Court of Justice would have needed a thorough and rule of law based ultra-vires control of the new and innovative interpretations of Art 19 TEU. The Polish Constitutional Court was unable to such a scrutiny, as its ultimate purpose seems to shield its own legal order from external review. Therefore, the comparison with the German PSPP judgment underlines the existences of two kind of ultra-vires controls: those that advance the rule of law and those that are abusive of law. It is to hope that the Court of Justice will recognize these two forms of ultra-vires review – perhaps while deciding the infringement proceedings against Poland.[263] The Commission seems to have acknowledged at least to some extent the non-abusive nature of the German ultra-vires control, as it has closed the infringement proceedings against Germany regarding the PSPP Judgment on 2 December 2021.[264] One reason in the Commission’s press release was that Germany has affirmed the principles of autonomy, primacy, effectiveness and uniform application of Union law as well as the values laid down in Art 2 TEU in its reply.[265] However, unfortunately, the Commission remains generally opposed to all kind ultra-vires review as a further reason to close the proceedings were the assurance of the German government ‘to use all the means at its disposal to avoid, in the future, a repetition of an “ultra vires” finding, and take an active role in that regard’.[266]
4 Final Observations
In the current system of law, national, European and international norms are becoming increasingly interrelated. Therefore, the question of the vertical delimitation of authority has become crucial. The focus currently lies on the interpretive competence of the international judiciary, which must prove itself. This means that its interpretive practice must also be open to national scrutiny and criticism. This is the only way that specific guidelines for interpretation at an international level can be developed – presumably requiring a long process of testing and contradiction. National oversight will also prevent international judicial bodies from unduly empowering themselves. At the same time, this can increase their legitimacy in the long term.[267] International decisions will be discussed at the national level, so that the national and international levels will become more and more interconnected.
An essential instrument in this process is a national, rule of law based ultra-vires review power, which also underlies the PSPP judgment. It will serve to secure the balance of power and subject international judges to oversight.
This effect will be enhanced if the finding of an ultra-vires action within a rule-of-law-based review process is no longer treated emotionally and anxiously considered as an attack on the international or European levels themselves, but instead as a crucial piece of the puzzle in the current process of delimiting vertical authority. This is not a matter of ego or having the last word; it is about defining the scope of the interpretive powers attributed to international judges through their ability to review, accept or contradict. We should confidently believe in the existence of our European legal order and embrace its fluidity, disharmony and imperfection[268] as part of a developing European Constitutional Identity. This will strengthen the growing together.
© 2022 Walter de Gruyter GmbH, Berlin/Boston
Artikel in diesem Heft
- Frontmatter
- Articles
- Emotion and the Vertical Separation of Powers: Ultra-Vires Review by National (Constitutional) Courts, and EU and International Law
- Contingent Power in the 21st Century Against the Backdrop of Hegel’s Philosophy of Right – Trump and Twitter as Two Sides of the Same Coin?
- Notes and Essays
- Health as a Purpose or as a Right – The Principle of Proportionality and the Measures Against the Covid-19 Pandemic
Artikel in diesem Heft
- Frontmatter
- Articles
- Emotion and the Vertical Separation of Powers: Ultra-Vires Review by National (Constitutional) Courts, and EU and International Law
- Contingent Power in the 21st Century Against the Backdrop of Hegel’s Philosophy of Right – Trump and Twitter as Two Sides of the Same Coin?
- Notes and Essays
- Health as a Purpose or as a Right – The Principle of Proportionality and the Measures Against the Covid-19 Pandemic
