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In its 1993 Maastricht Treaty decision, the German Constitutional Court decided that national authorities are not bound to respect and apply Community law to the extent that it exceeds the outer boundaries of Germany’s transfer of sovereignty to the European institutions.  It has also ruled that no transfer of sovereignty is valid to the extent that it results in the violation of the fundamental individual rights guaranteed in the German Constitution.  But that court’s latest ruling on this subject indicates a willingness to rely on the ECJ for the vindication of those fundamental rights.

A willingness to rely on the ECJ shows how tenuous the EU is. The German Court could simply disallow a disadvantageous ruling of the ECJ. In contrast, the ECJ undoubtedly views its rulings as binding on the EU’s states. This is a recipe for conflict. Being skeptical that the EU institutions are too far from the people and viewing the EU as akin to an international organization, most of the EU’s states are apt to resist being subject to an averse ECJ ruling. I contend that such states are mistaken in their premises here.  The EU Parliament, for example, is directly elected by citizens of the EU. Furthermore, the Parliament as well as the Commission and the ECJ give the EU governmental institutions that make the EU a federal government rather than a single-issue international organization. The recipe for conflict, in other words, lies in misunderstanding rather than simply in differential interests.

At the same time, there is a conflict of interest in having the ECJ be the decider of last resort on disputes between the EU and a member state. According to Bermann and Nicolaidis, “Systems which more or less readily accept the notion of implied federal legislative pre-emption—treating such pre-emption as basically a question of statutory interpretation—almost invariably vest federal courts with the power to determine whether there is federal legislative pre-emption or not.  The situation in the EU appears to be evolving in much the same general direction. Thus, even if the Community’s Treaty-based legislative authority  on a certain subject is concurrent only, this will not in itself prevent the EU legislature from legislating pre-emptively on that subject… . The Community’s internal market harmonization is widely considered to be pre-emptive.” In other words, there is a conflict of interest in having an EU-level institution (the ECJ) decide on federal pre-emption.

Given this conflict of interest, how the EU institutions are viewed in the member states, and how ruinous nullification by a state would be, I suggest that EU-state disputes be adjudicated by a special court whose justices serve on a rotating basis taking leave from the state constitutional courts. This solution would mitigate perceived distance between the EU and state institutions.

Sources: Judgment of 22 October 1986, in Application of Wunsche Handelsgeselischaft (Solange 11), Case 2 BvR 197/83, 73 B. Verf. GE 339, (1987) 1 3 CMLR 225 (Ger. Const’l Ct.).
George A. Bermann and Kalypso Nicolaidis, Basic Principles for the Allocation of Competence in the United States and the European Union, pp. 483-504 in Nicolaidis, Kalypso, and Robert Howse, eds., 2001. The Federal Vision: Legitimacy and Levels of Governance in the United States and the European Union (Oxford: Oxford University Press, 2001), 494, 495.