Editorial of May 2024

By the Alessandra Silveira (Editor)

“Europe is mortal”: recovering the original impetus for loyal co-operation of Article 4(3) TEU

Last April 25, while the Portuguese were celebrating the 50th anniversary of their democracy, French President Emmanuel Macron delivered a speech at the Sorbonne University urging the European Union (EU) to urgently rethink its economic and defence models, otherwise it will become irrelevant on the world stage value-wise – that is the meaning of the metaphor according to which the Europe we have come to know could die.[1] The rules of the game have changed on several fronts – including geopolitics, economy, trade and culture – and in this context, the “European way of life” is under threat and could fall into decay. Moreover, fighting Western values is the more or less declared plan of those who want a new illiberal international order.

Russia’s invasion of Ukraine marks the beginning of a new phase for European integration, the shape of which is not yet fully understood. But one thing is certain: in this new phase, loyal co-operation between European institutions and Member States – as well as their loyalty to each other – is particularly important. This is not a time for friction or dispute between Europeans and their representatives, because in the face of the barbarity of war, what is at stake is always of an existential nature. In other words, it is always a matter of life and death, also for European values and their relevance in the world. Against this backdrop, it is important to identify the new winds that are blowing across the relations of articulation and interdependence between the legal-constitutional order of the EU and the legal-constitutional order of the Member States.

Since October 2022, it has become clear that the European Commission’s strategy for protecting EU law has been changing. In a communication entitled “Enforcing EU law for a Europe that delivers”, the European Commission focuses on strengthening the idea of political cooperation, seeking to avoid the use of reactive instruments and sanctions. There is a whole new way of looking at the infringement procedure, for example by deepening the pre-litigation phase of the procedure, since non-compliance with EU law is mainly due to purely technical reasons – which are largely avoidable.[2]

The European Commission is now focusing on presenting reports aimed at increasing transparency and monitoring, in order to encourage Member States to move more quickly towards compliance with EU law. Today more than 90% of infringement cases are resolved before they are referred to the Court of Justice of the European Union (CJEU). This is because the Commission anticipates difficulties in applying European legislation even before it enters into force. And support systems are mobilised beforehand in the form of practical guidelines, meetings and training sessions, always with the aim of standardising the application of European legislation. In other words, the Commission’s tone has changed – and this is also evident in the case law of the CJEU.

Let us consider a specific example. For some time now, legal scholars have been urging the CJEU to change its case law on direct effect, which is perhaps a kind of  “infantile disease” of the European legal order, with no justification in a mature and autonomous legal system. [3] In this sense, it is high time to recognise that national judges should apply EU law in exactly the same way as they apply domestic law, free from the constraints of precision and unconditionality on which the direct effect of European provisions depends.

It is not expected that the CJEU will change its consolidated case law on direct effect. In any case, the CJEU has recently been focusing more decisively on interpretation in accordance with EU law – this is the first exercise to be carried out by the national authorities. Direct effect will only be relevant when interpretation in accordance with EU law is not possible, and only then will the possibility of disapplying the national provision that is incompatible with EU law be considered. Yet the national court is not obliged, on the sole basis of EU law, to disapply a provision of its national law that is contrary to a European provision that does not enjoy direct effect. If national law allows this possibility, EU law obviously has no objection. But the primacy of EU law alone is not enough to disapply a national provision that is incompatible with a European provision that does not fulfil the necessary conditions to enjoy direct effect.[4]

This may seem like a step backwards in affirming the primacy of EU law, but it is not.

Apparently, the idea is that i) setting aside national rules that are incompatible with EU law, which was essential at the start of the integration process, is now seen as subsidiary and exceptional; and that ii) the CJEU should be called upon to intervene via a reference for a preliminary ruling, when the national court deems it necessary, in order to recognise the direct effect of European provisions, with a view to guaranteeing they are applied in an uniform manner. In fact, that was precisely the aim of recognizing the direct effect of Article 19(1) 2^nd paragraph TUE[5] which recognizes that Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.

After all, the CJEU has urged the national legal order to create its own instruments for the removal of national rules that are incompatible with EU law when interpretation pursuant to EU law is not possible – because, for example, interpretation in conformity would lead to a contra legem result.

This co-operative appeal by the CJEU has had an effect in Portugal. The “Agenda for Justice Reform” – originally in Portuguese, “Agenda da Reforma da Justiça” – presented in March 2023 by the “Trade Union Association of Portuguese Judges”, puts forward proposals to bring into the Portuguese judicial process some specific stages of weighting the relevance of applicable EU law.^[6] In other words, the Portuguese judges are asking the Portuguese legislator to expressly regulate the adversarial proceedings on relevant questions of EU law. The Portuguese judges recognise that there are weaknesses in the practical implementation of EU law and attribute them to a habit of judges focusing almost exclusively on national law. Since it would be very difficult to counter this trend in any other way, especially since this would mean changing the very way EU law is taught in Portuguese law schools, the judges are calling for EU law solutions to be “nationalised” in some way. Again, this is ultimately in line with the CJEU’s inclination, according to which national legal order should create its own instruments for the removal of national rules that are incompatible with EU law, without this depending on the direct effect of the European provision with which those national rules contrast. And in this way national authorities are freeing themselves from the shackles of direct effect that was so useful in the past.

This shows the extent to which, in a complex legal system like the EU, the problem is always one of dialogue between the various voices. And this can only be solved through articulation and successive convergence between the various legal systems and players, because as this is not a hierarchically structured legal system, there is and should be no one who “commands” or has the last word.

Moreover, this trend is visible in the Portuguese Constitutional Court’s ruling 198/2023[7] – which indicates that the Portuguese Constitutional Court is also being affected by the new winds of fairness that are blowing. The Portuguese Constitutional Court was recently asked to interpret Article 70(1)(i) of the Constitutional Court Law (Law 28/82), in order to clarify whether this provision applies to EU law and to what extent, since it was in the context of an appeal of this kind that the Portuguese Constitutional Court made its first reference for a preliminary ruling. [8] That provision makes it possible to appeal to the Portuguese Constitutional Court against a judicial decision refusing to apply a norm of a legislative act on the grounds that it is contrary to an international convention. Thus, the Portuguese Constitutional Court was asked to clarify whether or not the provisions of the EU’s founding Treaties – i.e. its primary law – constitute an “international convention” for the purposes of that rule.

Fortunately, in judgment 198/2023 the Portuguese Constitutional Court reconsidered its understanding, ruling that primary EU law does not constitute an international convention for the purposes of Article 70(1)(i) of the Constitutional Court Law. This is important because if the EU’s constitutive Treaties were interpreted as international conventions for this purpose, the Portuguese Constitutional Court would be converting questions of EU law into questions of national constitutionality – which was already ruled out by the CJEU in the first judgment resulting from a Portuguese reference for a preliminary ruling, the Mecanarte judgment of 1991 (case law subsequently confirmed in the Melki judgment of 2010). [9]

In other words, questions of EU law must be assessed in the light of its primary law and in dialogue with the CJEU, and questions of national constitutionality must be assessed in the light of the constitutions of the Member States and submitted to the respective judicial review. Just as the European legal order has encouraged national authorities to find solutions themselves that are compatible with EU law, the principle of European loyalty requires national authorities not to hinder the exercise of European competences. This is because questions of EU law concern all European citizens and not just Portuguese citizens – and must therefore be resolved in the light of the EU’s founding Treaties.

What is the reason for this journey back to the original impulse of European loyalty? For the first time in its history, the EU is faced with a crisis that forces it to return to its roots and its initial political drive: to confront war by re-establishing a new order, promoting structural interconnections of peace between nations, and rebuilding a Europe on the rubble of a war that ultimately jeopardises European integration itself. Firstly, because this war seeks to destroy a State that proclaims the values and principles adopted by the EU – which define it as a “Union of law”, and which are the raison d’être of European integration.

Despite all the shortcomings of the rule of law, this Western value makes it possible to limit the excesses and errors of political power, specifically through democratic institutions and independent courts – something that a pre-Enlightenment vision that is contrary to liberal-based democracy does not allow. To ensure that the world of Europeans is not once again surrendered to the will to power – in other words, to terror and violence, suffocating the Europeans within it, as Albert Camus put it[10] – it is important to recover the original spirit of loyalty enshrined in Article 4(3) of the TEU, according to which EU and Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.

[1] On French President Emmanuel Macron’s speech see Alice Tidey, «“Europe is mortal”, Macron warns as he calls for more EU unity and sovereignty in landmark speech», Euronews, 25 April 2024, available at https://www.euronews.com/my-europe/2024/04/25/europe-is-mortal-macron-warns-as-he-calls-for-more-eu-unity-and-sovereignty-in-landmark-sp; the full speech can be accessed at https://www.france24.com/fr/vid%C3%A9o/20240425-replay-revivez-le-discours-sur-l-europe-d-emmanuel-macron-%C3%A0-la-sorbonne .

[2] Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Enforcing EU law for a Europe that delivers, Brussels, 13.10.2022, COM(2022) 518 final, available at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52022DC0518 .

[3] See Bruno de Witte, “Direct effect, primacy, and the nature of the legal order”, in The evolution of EU Law,ed. Paul Craig/Gráinne de Búrca (Oxford: Oxford University Press, 2011), 332.

[4] See Judgment Popławski, 24 June 2019, case C‑573/17, recital 68, ECLI:EU:C:2018:957, position recently confirmed in the Judgment K.L., 20 February 2024, case C-715/20, ECLI:EU:C:2024:139.

[5] See Judgment M.F. v. J.M., 22 March 2022, case C-508/19, ECLI:EU:C:2022:201, recital 74.

[6] See Nuno Coelho (ed.), et al., Agenda da reforma da justiça – uma reflexão aberta e alargada do judiciário (Coimbra: Almedina, 2023).

[7] See Judgment 198/2023 of the Portuguese Constitutional Court of 18 April 2023, available at https://www.tribunalconstitucional.pt/tc/acordaos/20230198.html.

[8] See Judgment 711/2020 of the Portuguese Constitutional Court of 9 December 2020, available at https://www.tribunalconstitucional.pt/tc/acordaos/20200711.html.

[9] See Judgment Mecanarte, 27 June 1991, case C-348/89, ECLI:EU:C:1991:278; Judgment Melki, 22 June 2010, joined cases C-188/10 and C-189/10,  ECLI:EU:C:2010:363.

[10] See Albert Camus, Conferências e discursos (1937-1958), trans. Maria Etelvina Santos (Porto: Livros do Brasil, 2022).

Picture credits: Photo by Angel Bena on Pexels.com.