59
Second working session — The impact
national law and constitutions, if not of national sovereignty, to oppose the EU
legal order’s claim of autonomy (
8
).
Is it therefore correct to talk about ‘competing autonomies’, as René
Barents does (
9
)? The question does not remain theoretical. Until recently, na-
tional courts were just warning in order to push the ECJ in matters like funda-
mental rights or to remind the Union of the limits of its powers, but they did
not refuse the application of Union law in any case. This gentle period seems
to be over since the Czech Constitutional Court, in the Slovak pensions case,
held inapplicable a judgment of the ECJ in the Czech Republic (
10
). Because of
its circumstantial particularities, this incidence might be a mere ‘historical
curiosity’, as a commentator said (
11
). But in fact it continually challenges the
autonomy and the primacy of Union law, for which some theoretical adven-
tures of the GFCC may have prepared the ground.
(
8
) See the case-law of the German Federal Constitutional Court as the pioneer of this approach:
case 2 BvL 52/71 of 29.5.1974, BVerfGE 37, 271, 278-285 (Solange I, English translation in
12 CMLRev. (1975). 275, 307), confirmed in case 2 BvR 197/83 of 22.10.1986, BVerfGE 73,
339, 375 et seq. Here, the GFCC reversed its ‘Solange’-doctrine when it found that the ECJ
had developed meanwhile sufficient safeguards for the protection of fundamental rights at
the European level (ibid., paragraphs 104-132) the conceptual approach of ‘Solange I’ has
not been given up. For cases of general and evident violations of the essential substance of
fundamental rights see case 2 BvR 2134, 2159, Dec. of 12.10.1993, BVerfGE 89, 155, 174 et
seq. – Maastricht, paragraph 70; case 2 BvL 1/97 of 7.6.2000, BVerfGE 102, 147, 162 et seq. –
Bananen, para. 56-62; for Union acts ultra vires changing the structure of competences of
the Union see case 2 BvR 2134, 2159, Dec. of 12.10.1993, BVerfGE 89, 155, 188 – Maastricht,
paragraph 106; see alsoGFCC case 2 BvR 2661/06 of 6.7.2010, BVerfGE 126, 286 –Honeywell,
paragraph 61, restricting this control to cases of evident and sufficiently qualified violations
modifying the structure of competences (‘Kompetenzgefüge’); and for measures affecting
the constitutional identity of Germany see case 2 BvE 2/08 of 30.6.2009 BVerfGE 123, 267 –
Lissabon, paragraphs 218 et seq., 226, 239-241.
(
9
) René Barents, The Autonomy of Community Law, 2004, p. 18, 176, further development of
the argument ibid., p. 268 et seq., 299 et seq.
(
10
) CCC case Pl. ÚS 5/12, of 31.1.2012 – Slovak Pensions. For comments see: Robert Zbíral,
‘
Czech Constitutional Court, judgment of 31 January 2012, Pl. ÚS 5/12. – A Legal revolution
or negligible episode? Court of Justice decision proclaimed ultra vires
’, 49 CMLRev. (2012),
pp. 1475-1491; Jan Komárek,
Playing with Matches: The Czech Constitutional Court Declares
a Judgment of the Court of Justice of the EU Ultra Vires; Judment of 31 January 2012, Pl. ÚS
5/12, Slovak Pensions XVII
, 8 EuConst (2012), p. 323-337.
(
11
) Robert Zbíral, Nuclear War between the Court of Justice and Czech Constitutional Court
(hopefully) averted, in: Verfassungsblog. On matters constitutional, Wednesday 9 Jan 2013,
available at:
/#.
UflfuVOzDhp.
