It is important at the beginning to identify the way I look at the relationship between national, European and international legal orders. In view of the theories of law developed since the 19th century and the practice within the constitutional law today, we have at least three possible approaches. There is an approach that explains this relationship by reference to the autonomous but interrelated character of the legal systems. For instance, the Italian Constitutional Court has repeatedly indicated that the Italian and the EU legal systems “are configured as distinct and mutually autonomous, even if coordinated”.[1] There still persists an approach that insists, in principle, on their separate nature. For example, the Russian Constitutional Court in the Yukos case stated as follows: “Recognizing the fundamental significance of the European system of the protection of human rights and freedoms, [judgments of the European Court of Human Rights being part of it,] the Constitutional Court of the Russian Federation is ready to look for a lawful compromise for the sake of maintaining this system, while reserving the right to determine its readiness for such a compromise, because it is the Constitution of the Russian Federation which outlines the boundaries of compromise regarding this issue”.[2] And there is an approach, which I share, that points out that all legal systems are part of the global legal fabric, especially in an evidently globalized world which demands solidarity among the international actors, including states, going beyond the mere cooperation model of the 20th century. To place these approaches within the EU and national law relationship, there is not immediately perceptible but an important difference of whether we conceive of their interaction as one of competing authorities or whether we say that they are all part of and contribute to the same European and global legal space.
It is against this background and by using examples from the case-law of the Constitutional Court of the Republic of Latvia that I will explain my views on the role of constitutional courts in delimiting European identity. I will reflect in the following three directions: (1) EU law as national law and vice versa, (2) building common European legal space within the respective competences separately but also together, and (3) better integration of the constitutional discourse of the Member States within the case-law and working methods of the Court of Justice of the European Union.
All EU law is national law and vice versa
Rather soon after Latvia’s joining the EU the Latvian Constitutional Court stated the obvious: “after the ratification of the treaty on the accession of Latvia to the European Union, the law of the European Union has become an indispensable part of Latvian law. Therefore legal acts of the European Union and their interpretation by the European Court of Justice have to be taken into account when applying national legal acts”.[3] In fact, there are two possibilities and both have arisen in practice. First, the Constitutional Court may need to apply EU legal acts directly. Second, the Court may be called upon to incorporate into the interpretation of the national legal provisions the relevant principles that are deriving from the EU legal acts or have been identified by the Court of Justice. For the Constitutional Court this has meant that there have been inevitable consequences relating to the constitutional fabric of Latvia. For instance, the Court has implied that joining the EU has meant that Article 82 of the Constitution (which provides for a three-level system of courts in Latvia) has been amended to mean that the Court of Justice of the European Union also is one of the courts that “hears court cases in Latvia”.[4]
The other side of the coin is at the first glance more difficult to accept. Taking into account the doctrines of primacy, supremacy and unity of the EU law, it might appear absurd to argue that all national law also forms part of the EU law. However, this difficulty needs to be addressed and dealt with and the only way to do so is to confront the complex debate on the source of legitimacy of the EU legal system. As noted by Jürgen Habermas, “at the European level, the citizens should be able to form judgments and make political decisions simultaneously and on an equal footing both as EU citizens and as members of a particular nation belonging to the EU”.[5] Since it is the citizens as citizens of the Union and as citizens of Member States who are the source of law-making powers at the EU and the national levels, does it make legal and political sense to insist on sovereignty of each people rather than seeing that all the European people are the source of legitimacy of the common European legal space? The argument is not that the different people give up their sovereignty and the legal systems merge into one legal system. The European diversity remains the strength of the EU. However, more often than not changing the emphases and seeing also that all national law contributes to the EU law would result in a constant awareness by the decision-makers at the level of the European Union of the domestic legal regulation. It should also be taken into account that whenever a choice is made at the EU level to adopt new legal acts that contradict the rules applicable in some or all of the Member States, such a choice must be a conscious and informed one and at the same time one authorised by the Member States themselves and also their citizens.
Hence the conclusion that all national law is also EU law logically follows from the presumption that the citizens of Member States (who are also citizens of the Union) are rational persons and would not lend their sovereign power to a system in which their left hand (the EU) could overrule and supersede either without proper knowledge or proper procedures what their right hand (the respective Member State) is doing.
[1] Judgment of the Constitutional Court of the Republic of Italy of 5 June 1984 in the case no. 170/1984, para. 4.
[2] Judgment of the Constitutional Court of the Russian Federation of 19 January 2017 in the case no. 1-П/2017 concerning the possibility of execution of the judgment of the European Court of Human Rights in the case “OAO Neftyanaya Kompaniya Yukos v. Russia”, para. 2. English translation of the judgment is available here: http://www.ksrf.ru/en/Decision/Judgments/Documents/2017_January_19_1-P.pdf. The cited excerpt has been edited for clarity.
[3] Judgment of the Constitutional Court of the Republic of Latvia of 17 January 2008 in the case no. 2007-11-03, para. 24.2.
[4] Judgment of the Constitutional Court of the Republic of Latvia of 20 December 2006 in the case no. 2006-12-01, para. 9.2.
[5] Habermas J. The Crisis of the European Union in the Light of a Constitutionalization of International Law. The European Journal of International Law, 2012, vol. 23, p. 343.