Num─ârul 1 / 2005




Peter-Christian MÜLLER-GRAFF

Universitatea Heidelberg


Abstract. Supranationality and national legal autonomy as seen from a German legal perspective on EC law with a view to this topic in the EEA- context implies, first of all, that the concepts of supranationality and national legal autonomy have to be defined (A), before, second, the problem of potential conflicts between this concept and German law can be examined (B) and, third and finally, the question of differences between EC and EEA law in this respect can be raised (C).


1. The Concepts of Supranationality and National Legal Autonomy

1.1 Supranationality

Hence, turning firs to the notion of supranationality, it is striking that, on the one hand, this term is widely used in political debates on European integration and scholarly literature as household word intended to summarize the characteristics of the European communities as compared to so called traditional international organizations; but, on the other hand, as far as I can see, it has never made its way into explicit terminology for provisions of primary or secondary law in the European Communities nor into the explicit wording of the jurisprudence of the European Court of Justice. This shouldn't come as a surprise, since no generally accepted legal definition of supranationality has been emerged1. Indeed there are basically two different approaches to an understanding of supranationality: an intrinsic (or absolute) one and a rather relative one.

1.1.1 Intrinsic Notion

The intrinsic (or absolute) approach is characterized by the idea that supranationality necessarily implies the competence of supranational level to exert public power without the additional consent of the States witch or whose citizens are affected by it. This means, translated into the realm of legal terms, the existence of an autonomous legal order, which is either directly applicable to or binding upon the Member States and enjoys supremacy over any conflicting national law.

a. Hence, at a first glance, it looks as if Community law fulfils these criteria and the European Communities posses such a power. Their institutions can adopt measures that bind in or are at least binding upon Member States even against the will of their governments, parliaments, electorates or citizens. This is evident in the case of those institutions, which are or not composed of representatives of the Court of Justice. However, it also holds true institutions, such as Council and the European Parliament, which are composed either of representatives of the national governments of their peoples, but which can decide by majority.

Translated into legal terms, primary and secondary EC law constitutes their autonomous legal order of its own (COSTA/ENAL). This order is according to the jurisprudence of the European Court of Justice-either directly applicable (e.g.: VAN GEND EN LOOS2; VAN DUYN 3) or is at least binding upon Member States (Article 249 par.3 EC Treaty) and upon their courts (Article 10, 234 par 3 and 249 par. 3 EC Treaty); and this legal order enjoys supremacy over any kind of conflicting national law, either directly (COSTA/ENEL4) or indirectly by way of the obligation of national courts to interpret national law in the light of the wording and the objectives of a directive (e.g. VON COLSON UND KAMANN5).

The basic wording in „VAN GEND EN LOOS6" in its English translation needs to be remembered. To quote:

 „The conclusion to be drawn from this is that the Community constitutes a new legal order of international law for the benefit of which the States have limited their sovereign rights, albeit within limited fields, and the subject of which comprise not only Member States but also their nationals. Independently of the legislation of Member States Community law therefore not only imposes obligations on individuals, but also intended to confer upon them rights which become part of their legal heritage"

In „COSTA/ENEL7" the Court held:

By contrast with ordinary international treaties, the EC-Treaty has created its own legal system which, on the entry into force of the Treaty, became an illegal part of the legal systems of the Member states and which their courts are bound to apply. By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on international plane and, more particularly, real powers stemming from a limitation of sovereignty or transfer of powers from the States and Community, the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of a law which binds both their nationals and themselves. /.../It follows from all these observations that the law stemming from the Treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question".

b. However, the question has to be raised as to whether the current situation already satisfies the intrinsic or absolute approach to supranationality, which requires, as mentioned, the competence to exert public power without the consent of the Member States which or whose citizens are affected by it.

Without doubt, it can be argued and shown that the autonomy, the direct applicability and the supremacy of Community law are legitimated, authorized and justified by the combined ratifications of the Treaties by the Contracting Parties in accordance with their respective constitutional requirements, as it is expressly provided for e.g., in Article 313 EC Treaty.

And, in addition, it is well known that all public powers of the Communities are created and conferred upon them by just this procedure and that the Member States also hold the power to change the empowerments provisions of Treaties. Hence the Community institutions have no genuine power to create competences, in order words: the Communities have no „Kompetenz-Kompetenz". On the contrary, it is up to the respective national constitution to open the way for Community law and Community measures to take direct effect or to be binding upon national public authorities in the respective Member State.

In Germany this is accomplished by the new Article 23 par. 1 Grundgesetz in grammatically rather misleading or confusing way by referring to transfer of power instead of to an opening up of national sovereignty, by avoiding the therms „direct applicability" and „supremacy", but meaning exactly this, and by mixing this apening up with internally binding provisions. The provisions read in English translation:

With a view to establishing a united Europe, the Federal Republic of Germany shall participate in the development of the European Union that is committed to democratic, social and federal principles, to the rule of law, and to the principle of subsidiary, and the guarantees a level of protection of basic rights essentially comparable to that afforded by this Basic Law. To this end the Federation may transfer sovereign powers by law with the consent of Bundesrat".

The proper German text reads as follows:

 „Zur Verwirklichung eines vereinten Europas wirk die Bundesrepublik Deutschland bei der Entwicklung der Europischen Union mit, die demokratischen, rechsstaatlichen, soyalen und foderativen Grundsatzen und dem Grundsatz det Subidiaritat verpflichtet ist und einem diesen Grundgestz im wesentlichen vergleichbaren Grundrechtsschutz gewahrleistet ist. Der Bund kann hierzu durch Gesetz mit Zustimmung des Bundesrats Hoheitsrechte ubertragen".

In view of the fact that Community power has its roots in the different national constitutional soils, the conclusion is at hand: The Communities do not dispose of powers created by themselves and hence they are not characterized by an absolute supranationality.

1.1.2 Relative Notion

However, all the elements mentioned, which enable the Communities to exert public power without the consent of the Member States affected by it, and, thus, the autonomy, the direct applicability and supremacy of Community law constitute the distinctive and unique feature of a relative supranationality of the Communities and of Community law.

1.2 National Legal Autonomy

As a consequence, the second aspect of the topic, the concept of national legal autonomy in the sense of the unlimited and unabridged power of national authorities to shape and to apply the legal order within their territory, also has to be viewed in the light of the combined ratifications of the Contracting Parties. Since the Treaty has been agreed upon in a mutually binding way (in German: gegenseitiger Vertrag) for joint purposes (in German: Vertrag zu einem gemeinsamen Zweck) - and hence is legally structured like a corporation (in German: Gesellschaftsvertrag) -, any national legal order is bound to comply with primary and secondary Community law within the mutually consented and ratified program of obligations. In other words: within this framework the Member States have waived their basic sovereign leeway to act at their discretion. They have done so by concluding binding international Treaties. As a result, the idea of national legal autonomy also has to be considered to be a relative one in context of Community law.


2. Conflicts between Supranationality and German Law

Moving on to the second question, namely the question of potential conflicts between the relative supranationality of EC law and the German law, the focus will be concentrated on the four relatively supranational elements of the legal order of the Community and the reaction of the German legal order to them: namely, first, on the doctrine of direct applicability (I), second, on the supremacy rule(II), third, on the obligation of national courts to interpret national law in the light of directives (III) and, fourth, on the obligation of national courts of at last instance to comply with the mandatory preliminary reference procedure in questions of interpretation and validity of Community law (IV).

2.1 Direct Applicability

The doctrine of the direct applicability implies, as it is well known, that any national court or administrative authority has to apply provisions of Community law, which are clear (or not sufficiently precise) and unconditional. They are contained in primary law as well as in secondary law, in the latter case particular in regulations, but exceptionally also in directives which have not been implemented properly within the prescribed period and which aim at grating to individuals against the State.

2.1.1 Principle

Although no broad empirical research exists in this respect, the doctrine of direct applicability of Community law is generally accepted by the German judiciary in principle. This is, in particular, shown by the application of the prohibition of cartel agreements according to Article 81 EC Treaty, but also by the application of the basic freedoms.


2.1.2 Deviation

Only the Federal Tax Court (Bundesfinanzhof) deviated from this doctrine as far as the - exceptional-direct applicability of directives was concerned (case KLOPPENBURG8). In 1984 it ruled that a German taxpayer (Mrs. Kloppenburg) could not claim a tax exception for her 1978 income from certain credit transactions by invoking a 1977 Council directive (the Sixth VAT Directive) that required the Member States to provide such an exemption by January 1, 1978. Its reason was that, first, the Sixth VAT Directive had not been implemented in Germany by 1978 and, second, that the instrument of directive had not been conceived by the Member States as having similar effects to a regulation, namely direct applicability. The Bundesfinazhof came to this conclusion, even though the European Court of Justice had already twice ruled in 1981 and 1982 (cases BECKER9 and GRENDEL10) that the directive had direct effect. In fact, the lower tax court had earlier requested a preliminary ruling from the Court of Justice on the same question, and the Court of Justice had reaffirmed its 1981 rulings11. The decision of the Bundesfinanzhof provoked a constitutional complain (Verfassungsbeschwerde) by Mrs. Kloppenburg to the Federal Constitutional Court (Burdesverfassungsgericht), claiming that her constitutional right to the „lawful judge" (Article 101 par 1 Grundgesetz) had been infringed when the Bundesfinanzhof knowingly disregarded the Court of Justice's rulings on the direct effect of the Sixth VAT Directive instead of asking the Court of Justice to reconsider its position. Eventually the Bundesverfassungsgericht held that the Bundesfinanzhof had indeed violated Mrs. Kloppenburg's constitutional rights12.

The Bundesvefassungsgericht reasoned (quotation):

If the Bunderfinazhof did not wish to accept that the preliminary ruling by the Court of Justice on the same question in the same main action had binding effect and did not wish to follow the latter's view of the law, it had an obligation to resubmit the question to the Court of Justice....It acted in an objectively arbitrary way in not complying with this obligation". And in terms of substance the Bundesvefassungsgericht held: „It is not an unjustifiable conclusion for the Court to infer, from the provision in Article 189 that a regulation shall be directly applicable, that this does not rule out the possibility that other legal acts (decisions, directives) also have direct effect./.../Reaching this conclusion does not involve an extension of the Community's legislative power. The actual purpose of enabling an individual to invoke a directive is not to extend the Community's legislative power, but to sanction effectively the Member State's obligation created by the directive." The Bundesvefassungsgericht added: „It is permissible - and positively required by (rules) interpretation (of) the Community in light of and in harmony with the objectives of the Treaty".



2.1.3 Exceptions

However, only six years later, in its famous MAASTRCHT - decision13, the Bundesvefassungsgericht itself created an important potential exception to doctrine of direct applicability of Community law.

a. The Court asserted that all actions- including legislation- by „European institutions or agencies" that are not covered by the Treaty in the sense that they deviate from the mutually ratified program of integration are not legally binding within the sphere of German sovereignty. German state organs are for constitutional reasons prevented from applying them. The Bundesvefassungsgericht made it clear that it would review Community actions to ensure that they remain within the proper limits of their acquired powers.

In its legal core this is based on the principle of democratic participation of German citizens as laid in Article 38 of the Grundgesetz. The analysis of the broad wording of the judgment shows that this principle is - according to the Bundesvefassungsgericht- violated in two cases: first, if a national law which allows Community acts to have legal effects in Germany does not establish with sufficient certainly the intended program of integration; and, second, as already mentioned, if EC - actions are not covered by the Treaty in the form that is the basis of the German Act of Assent (Zustimmungsgesetz). In this respect the Bundesvefassungsgericht, in a rather vague wording, took a critical position vis-à-vis the „openhanded" or „generous" treatment of Article 308 EC Treaty and warned against an interpretation of the Treaty, e.g. by the Court of Justice, that amounts to a Treaty extension.

b. This reasoning received mixed comments in the German doctrinal literature: hailed by a number of authors, who are specialized in constitutional law, it was, at the same time, widely criticized by those specialized in Community law. The basic problem of the judgment is, indeed, easy to grasp. Taken seriously, the Court's position jeopardizes, albeit restricted to single occasions, the direct applicability of secondary Community law and interpretation by the Court of Justice. This contradicts in its core the objective, function and quality of Community law to serve as a common law in all Member States. And, indeed, a first consequence was a certain confusion not only among some German professors of constitutional law, but also in some lower courts in Germany which started to use a somewhat weird language, as if it were their task to assess on their own question of whether the political institutions of the Community or the Court of Justice had exceeded the program of integration.14 In 1994 the Bundesgerichtshof, referring to the MAASTRICHT - judgment, pondered the question of whether a certain interpretation of Article 12 EC Treaty by the Court of Justice remained within the Court's competence of jurisdiction.15 In 1995 the Oberverwaltungsgericht Muster (Administrative Court of Appeal) felt competent to asses the question of whether the decision of the Court of Justice on the quota preference rules of the Women Promotion Act of the State of Bremen was within the framework of assented program of integration16. While those two courts found the Court of Justice not to be exceeding its powers, the Finanzgericht Rheinland-Pfalz (Tax Court) found to the contrary in 1995 and hence ignored a judgment of the Court of Justice concerning the lack of compatibility of a national procedural provision(& 126 V FGO) with Article 234 EC Treaty17. And in 1996 the Bundesfinanzhof considered it to be a matter of course to review for itself the applicability of valid Community law on the grounds of constitutional law18. This conduct of specialized courts (which encountered criticism19) either in reviewing the correctness of the Court's interpretation of Community law and/or in claiming not only a competence to review Community law (Prufungskompetez), but also a competence to deny its applicability (Verwerfungskompetenz) is not excluded by the wording of the Maastricht judgment. However, it contradicts the reasons which led the Bundesvefassungsgericht in its famous SOLANGE- jurisprudence20 to concentrate the „Verwerfungskompetenz" on itself, and also conflicts with general principle of the division of powers between the judiciary and legislature.

Only recently, the political debate on this topic gained some new momentum, spurred by the Court of Justice's finding in TANJA KREIL that the Equal Treatment Directive precludes the application of national provisions which impose a general exclusion of women from military posts involving the use of arms. This hit Article 12 a par. 4 Grundgesetz that provided that women „may on no account render service involving the use of arms." The chairman of the Bundestag- committee on justice affairs, who is a member of the biggest opposition party and a constitutionalist with a sometimes skeptical attitude to the EC- legislation and the Court if Justice, has already publicly declared that the KREIL -judgment fulfils „evidently" the „deviation from the program of integration"- criterion of the MAASTRICHT judgment and therefore inapplicable in Germany: rather rash conclusion21.

c. In my opinion the proper solution in the general conflict between the scope of the national Act of Assent and an exceeding measure on Community level cannot be found in the allegation of absolute national legal or constitutional autonomy. On the contrary, account has to be taken not just of the fact that Community law enjoys only a relative supranationality, but that also national law enjoys only a relative autonomy: because, as mentioned already, it is bound to comply with Community law within the mutually consented, ratified and hence binding program of obligations. The adoption of a measure, which exceeds the scope of national Act of Assent to the Treaty, is indivisibly a problem of exceeding the empowerment provisions of the Treaty.

Hence from the very beginning of the Communities, the Contracting Parties provided procedural devices to handle disputes on the scope of powers of Community institutions. As a consequence, secondary Community law is supposed to lose its binding force and direct applicability not as a result of unilateral action by public authorities in a single Member State, but only if it is declared to be void, invalid or inapplicable by the Court of Justice within the proceedings of Articles 230, 234 (and the supplementing rule established in the case FOTO-FROST22) or 241 EC Treaty. It is true that in this respect the Court of Justice has the last word. This consequence, however, was consented to and ratified by the Contracting Parties for good reasons when they established the task of the Court of Justice in the words of Article 220 EC Treaty: namely that it shall ensure that in the interpretation and application of the Treaty the law is observed.

Otherwise the law stemming from the Treaty would be deprived of its character as Community law and the legal basis of the Community itself would be called into question.

The KREIL issue proves this case. The uniform binding force and interpretation of the Equal Treatment Directive would be avoided if its application were left to absolute autonomy of state authorities. Is the Court's interpretation in the KREIL judgment evidently wrong? Sure not.23 Without doubt, one can debate whether or not the Directive, based on Article 308 EC Treaty, can also affect the realms of national defense. Since the sheer existence of the second pillar of the Union (CFSP) does not limit the scope of Community law, the basic issue is whether Community law itself contains a general public security exception from applicability of Community law, although it leaves the organization of their armed forces and their internal and external security with the Member States This has been rejected by the Court with reasonable arguments, which need not be repeated here. If, however, more convincing arguments against the Court's finding should be brought up, a new preliminary reference procedure could be started. But the final decision has to rest with the Court of Justice.

2.2 Supremacy

Turning to the second supranational element of Community law, the supremacy rule, it is also well known that, as established by the Court of Justice in COSTA/ENEL24, this rule requires that in a conflict between Community law and international law the latter is set aside in order to give effect to the Community law.

2.2.1 Principle

Although coherent empirical research does not exist and would be difficult to carry out anyway, based on the assessment of rather randomly observed judgments, it seems that the supremacy rule is accepted by the German judiciary in principle25. This is shown in particular in the area of vertical agreements between companies that restrict competition, with respect to which Community law contains a basic prohibition in primary law26 - regardless of the new block exemption regulation of 1999 - while German competition law differentiates already in principle27. The supremacy rule is also honored in cases in which national rules are assessed in the light of the basic freedoms.28

2.2.2 The Fundamental Rights Problem

However, a dormant barrier to supremacy rule has been established by the famous "SOLANGE" - jurisprudence of the Bundesverfassungsgericht concerning the relationship between secondary Community law on one hand and guarantees of fundamental rights in the Grundgeset on the other. In 1974 is held in a widely quoted summary:

"As long as the integration process has not progressed so far that Community law also receives a catalogue of fundamental rights decided on by a parliament and of settled validity, which is adequate in comparison with the catalogue of fundamental rights contained in the Constitution, a reference by a court in the Federal Republic of Germany to the Bundesverfassungsgericht, following the obtaining of a ruling from the European Court, is admissible and necessary if the German court regards the rule of Community law which is relevant to its decision as inapplicable in the interpretation given by the European Court, because in so far it conflicts with one of the fundamental rights in the Grundgesetz"29.

Since this somehow shrilly judgment encountered sharp and broad criticism in scholarly literature30, the Bundesverfassungsgericht reversed itself by a new assessment 12 years later when it started:

"It must be held that, so long as the European Communities , and in particular the case law of the European Court, generally ensure an effective protection of fundamental rights as against the sovereign powers of the Communities which is to be regarded as substantially similar to the protection of fundamental rights requires unconditionally by the Grundgesetz, and in so far as they generally safeguard the essential content of fundamental rights, the Bundesverfassungsgericht will no longer exercise its jurisdiction to decide on the applicability of secondary Community legislation....and it will no longer review such legislation by the standard of the fundamental rights contained in the Grundgesety; references to the Court for that purpose are therefore inadmissible."31 This position was affirmed in the Maastricht-ruling32.

Although the potential tension seems to be settled by this turnaround, it has to be noted that the Bundesverfassungsgericht didn't give up its claim to hold jurisdiction over applicability of secondary Community law in principle. The Court only concluded that it would no longer exercise its jurisdiction as long as the general level of protection of fundamental rights could be deemed as being substantially similar to the level required by the Grundgesetz. However, the assertion of this dormant jurisdiction is not really convincing in the light of the mutual relation of the relative supranationality and relative national legal autonomy. Since the Contracting Parties conferred upon the Court of Justice the task of ensuring that in the interpretation and application of the Treaty the law is observed, it cannot be the task of national courts to deny the supremacy and validity of secondary Community law according to national standards. On the contrary, it is the genuine task of the Court of Justice to develop an effective Community standard for protection of fundamental rights against the exertion of public power by the institutions of the Community33.

2.2.3 Recent Development

Recently an attempt was made to test the scope and content of the Bundesverfassungsgericht's conditioned formula in a reference by the Administrative Court of Frankfurt34 which was triggered by the notorious banana-market regulation and its positive, but only sparsely reasoned assessment by the Court of Justice35. The Administrative Court took the view that the level of protection of fundamental rights to be obtained from the Court of Justice was characterized by a "structural deficit" when compared to the level of protection required by the Grundgesetz. According to the Administrative Court, the Court's jurisprudence on fundamental rights shoes methodical differences that could lead, in the overall assessment of a Community act, to a "systematic distortion" at the expense of individuals (headwords: no inquiry and weighing of individual interests; shortening of the test of proportionality). However, this reasoning of the Administrative Court already lacks conclusiveness, since it equates the style of reasoning with the act of decision.

Only recently, and three years after this reference, the Bundesverfassungsgericht declared it inadmissible (unzulassig)36 on the grounds that the Administrative Court had not confronted nor compared the Community level and the national level of protection in a substantial manner, but only in an abstract way concerning the method of reasoning.

2.3 Obligation of Directive-Conform Interpretation

Looking at the third supranational element of Community law, the obligation of national courts to interpret and apply national law in the light of directives in particular37 and in conformity with the requirements of Community law in general, the national courts are not bound by that obligation to exceed the limits of interpretation that are inhered in national law38. However, they are supposed to use the proper tools of interpretation available to them under the respective national legal order in order to give effect to directives and to other Community law. This obligation roots in Article 249 par. 3 and Art.10 EC Treaty, that addresses the Member States and, thus, also encompasses the national courts in their respective realm.

2.3.1 Principle

A survey of Community law before the German courts, carried out some years ago39, showed that the requirement of directive-conform interpretation has been widely internalized by all the different branches of the judiciary, in particular in labor law courts, tax law courts and social law courts, due to important directives in these areas, such as the Equal Treatment Directive, the Sixth VAT Directive and the Migrating Workers Directive. Only some marginal objection based on the idea of national legal autonomy emerged, but in the wake of the KREIL- judgment, the idea of simply reinterpreting Art. 12a Grundgesetz in the light of the directive might well trigger such a discussion. Nevertheless, again limits of national legal autonomy have been ratified by establishing a legal instrument that is binding, as to the result to be achieved, upon each Member State (Article 249 par.3 EC Treaty), and by inserting the obligation of the Member States to facilitate the achievement of the Community's tasks and to obtain from any measure which could jeopardize the attainment of the objectives of the EC Treaty (Article 10 EC Treaty).

One of the most spectacular examples of a directive-conform interpretation was concerned with the provision for civil sanctions in the Equal Treatment Directive in relation to those sanctions available under the Civil Code(BGB) in the case of an employer's non-compliance with the prohibition of discrimination on the grounds of gender. The specific original provision of sec.61 la par.2 BGB limited the compensation of damages to those called "Vertrauensschaden" (damages caused by the reliance of the applicant on the legal requirement that the employer would not discriminate on grounds of gender) and thus to rather symbolic amounts (e.g. 7.20 DM in the case "VON COLSON"40). Since this was considered as not complying with the Directive, the Federal Labor Law Court (Bundesarbeitsgericht) activated a general tort provision (sec. 847 BGB) which now allows for the collection of immaterial damages (Scmerzensgeld) caused by the violation of the general right of personality (allgemeines Personlichkeitsrecht; sec. 823 par.1 BGB)41.

2.3.2. Legislative Consequences

It should be added that the directive - conform interpretation has already generated legislativeactivities designed to clearly fix the state of law. Hence in the case of sec. 61 1a par. 2 BGB, already mentioned, the provision was repealed and replaced by a new device granting the collection of immaterial damage, but limited to amount equivalent to three months' wages. However, this rule was again found not to be in conformity with the Directive by the Court of Justice42. As a consequence, the German legislator amended the provision for a second time.

2.4 Mandatory Reference Procedure

Taking up the fourth and last supranational element, the mandatory preliminary reference procedure, this rule is expressly contained in Community law, in particular in Article 234 par. 3 EC Treaty. Aimed at achieving the uniform application and interpretation of Community law by national courts and public authorities throughout the Community, the rule takes away the procedural autonomy of national courts of last instance as far as certain issues of Community law are concerned: namely questions of interpretation and of validity of Community acts. The latter issue is also removed form procedural autonomy of lower courts (FOTO-FROST)43. It is well known that the Court of Justice tries to limit its role to new questions44 and to the core aspects of interpretation and generally leaves the "implementation"(in the sense of consumption, which no doubt also contains elements of interpretation from a hermeneutical point of view) to the national courts, e.g. in assessing health risks under Article 30 EC Treaty or in assessing, if a violation of Community law by a Member State is a "qualified violation" in the sense of the - BRASSERIE-jurisprudence45, which was eventually denied by the Federal Civil Law Court (Bundesgerichtshof)46. Nevertheless the mandatory reference covers a potentially wide range of questions.

2.4.1 Principle

The already mentioned survey of Community law in German courts47 also showed that German courts of last instance increasingly refer questions to the Court of Justice: in particular the Bundesgerichtshof, the Bundesarbeitsgericht and the Bundesverwaltungsgericht, but also the Bundesfinanzhof. However, it is naturally not known how often these courts and how often lower courts of last instance avoid or don't realize the necessity of a reference by simply dodging or overlooking a Community law question in a pending procedure. Open resistance took place in case of the aforementioned KLOPPENBURG- procedure before the Bundesfinanzhof48, but was reprimanded by the Bundesverfassungsgericht on grounds of constitutional law49.

2.4.2 Problems

The fact remains that there has not been a single reference by the Bundesverfassungsgericht itself, which constantly maintains and pretends that it handles only constitutional law questions, even when questions of the "lawful judge"(Art. 101 Grundgesetz) imply the understanding of the mandatory reference procedure. Moreover, the wording of the MAASTRICHT- judgment leaves open the possibility that the Bundesverfassungsgericht will not refer questions which focus on the problem (or will not leave the last word to the Court), if a Community act exceeds the program of integration as assented and ratified in accordance with the national constitutional and (in particular) democratic requirements.


3. Differences between EC law and EEA law

Moving on to the third and last question, the differences between EC law and EEA law in this respect, it can be observed that the different elements of supranationality do not show up in the same manner in EEA law as in EC law.

3.1 Direct Applicability

As to the question of whether the provision of the Agreement are directly applicable in the same way as parallel, directly applicable provisions of EC law, the Agreement itself contains no explicit answer. In the scholarly literature the option varies. Very early Koller, Director in the Swiss Federal Office for Justice (Bundesjustizamt), held that the principle of direct applicability is "without doubt" valid for EEA law and drew his conclusion from Article 3 and 650. Article 6 states that the provisions of the Agreement, in so far as they are identical in substance to corresponding rules of EC law, shall be interpreted in accordance with the relevant rulings of the Court of Justice given prior to the date of signature of the Agreement(i.e.: May 2, 1992). Article 3 copies the core of Article 10 EC Treaty, which was already used by the Court of Justice as a basis for the concept of direct applicability before 1992. However, it has remembered that the EEA Agreement can hardly be said to constitute a legal order identical to Community law, if the basic VAN GEND EN LOOS- criteria51 are applied. There, the Court relied on the combination of several aspects of Community law: first, on the objective of the EEC Treaty (seen in the establishment of a Common Market as being of direct concern to interested parties in the Community, which could also be said in an analogous way about the EEA being conceived to be a homogeneous area based on common rules that have been taken from the pattern of the Common Market52); second, on the preamble(reference not only to governments but to peoples, which can also be said about the EEA-preamble); third, on the establishment of institutions endowed with sovereign rights, the exercise of which affects Member States and also their citizens(in this respect the parallels in the EEA-construction fade out); and eventually on the Art. 234 EC - procedure (which confirms that the States have acknowledged that Community law has an authority which can be invoked by their nationals before national courts; here again the parallel in the EEA is pale, since no EEA Court exists and Article 34 SCA does not provide a mandatory procedure for courts in EFTA States referring questions to the EFTA Court53).

Hence, though the EEA Agreement comes close to the EC Treaty in certain aspects, it has not established its own court and corresponding procedures. This analysis in matched by the EFTA Court's subtle and distinguishing wording in "SVEINBJORNSDOTTIR", where it held on one hand that "the EEA Agreement is an international treaty sui generis which contains a distinct legal order of its own"54 , but on the other hand that the depth of integration of the EEA Agreement is less far reaching than under the EC Treaty. Already the "RESTAMARK"-decision55 of the EFTA Court has ignited disputes in scholarly literature. While Baudenbacher understands the jurisprudence of the EFTA Court as having affirmed direct effect56, Graver has pointed to important distinctions in "RESTAMARK": first to the distinction between the rather technical requirements which a provision must fulfill to procedure direct effect on one hand and the actual legal effects in the legal system of the EFTA States on the other57; and second to the distinction between the obligation imposed on EFTA States by the EEA Agreement (namely: to give direct effect) on one hand and the question on the other hand as to what extent the failure of a EFTA States to fulfill such an obligation produces rights and duties within the legal orders of the EFTA States58.

Therefore, in the question of direct applicability, several distinctions have to be made59 : first, according to the legal nature of the provisions (in other words: Main Agreement provisions or other provisions) and, second, according to the Contracting Parties concerned (in other words: EFTA States or EC or EC States).

3.1.1 Main Agreement

As far as the provisions of the Main Agreement are concerned, a principle of direct applicability cannot be deducted from the Agreement alone, but only in combination with the legal order of the respective Contracting Party. It seems that this is not contradicted by the cautious wording of the "RESTAMARK"-decision (see below).

a. Hence the direct applicability of the EEA Agreement in an EFTA Statedepends upon its specific rules on the relationship between international law and national law. Consequently, in States with a monistic tradition(Liechtenstei), Agreement provisions can be held to be directly applicable, while in States with a dualistic tradition(Norway and Iceland), the direct applicability has, in principle, to be founded on the national transformation act. If in latter case there to be no such act concerning a certain provision, the EFTA State would have violated its obligation to give direct effect, but direct effect could not be generated by the EEA Agreement alone. However, it might seem that the EFTA Court went farther by holding in "RESTAMARK" that it is inherent in the nature of provision such as Article 16 EEA Agreement that individuals in cases of conflict between implemented EEA- rules and nationals provisions must be entitled to invoke at the national level any rights that could be derived from provisions of the EEA Agreement as being part of the respective national legal order60; and in "SVEINSBJORNDOTTIR" that it is natural to interpret national law which implements the main part of the Agreements as also comprising the principle of state liability61. This idea of implied interpretation by the nature of the objectives of the provisions sounds like direct effect, supremacy and state liability based on the EEA Agreement, but this conclusion is doubtful. The decision can also be understood as giving a persuasive argument for the way the national courts in EFTA States should(or ever must) interpret their own national implementing rules if there is no express barrier enacted by the national legislator. This implies that- in contrast to EC States under Community law- EFTA States under EEA law have kept their legal autonomy to deviate expressly from the EEA Agreement, without the consequence of sanctions directly imposed by the EEA Agreement and applicable by national courts.

Hence one can concur with Grave's skepticism that it remains to be seen whether state liability is also normal for all the national courts in EFTA States62. On the other hand it is doubtful to argue that, if the line of reasoning of the EFTA Court will be followed in later cases and respected by the national courts, one could say that direct effect and primacy of implemented rules other statutory provisions in the EFTA States will be established as a principle "which follows directly from the EEA-A". Rather this follows from an autonomous interpretation of the national implementation act in conformity with the obligations of the EEA-Agreement with the intention of realizing the inherent ideas of the EEA-objective of a homogeneous economic area based upon common rules that are taken from the internal market law of the EC.

b. For the EC States and the two contracting Communities, the situation is in no so far different as- according to the rulings of the Court of Justice in "DEMIREL"63 and "KZIBER"64 - any provision which is contained in a Treaty concluded by the Communities with a third country and which is clear and precise has to be considered to be directly applicable. It should be added that this holds true for the EEA Agreement, as far as its provisions concern competences of the Communities.

3.1.2 Other Provisions

As to other provisions or acts other than Agreement provisions, again distinctions have to be drawn65.

a. Acts referred to or contained in the Annexes to the Agreement and decisions by the Joint Committee to amend Annexes are binding upon the Contracting Parties according to Article 8 EEA Agreement. They are not generally directly applicable, but "shall be, or be made, part of their internal legal order according to the legal nature of corresponding EC act". This wording does not even exclude an obligation that non-implemented rules have to be given direct applicability and supremacy by national law66. In the light of the "RESTMARK"- decision67 of the EFTA Court the main remaining problems centre in the effect of non-implemented secondary legislation68.

Hence, an act corresponding to a regulation shall as such be made part of the internal legal order of the Contracting Parties. While in EFTA States this requires an act of incorporation if the monistic concept does not apply, in the EC an amendment of the EC regulation would be sufficient, but not even necessary. If a decision of the Joint Committee extends a regulation to the EEA, one could deduce the direct applicability of its extension in the EC from judgment in the SEVINCE-case69 in which the Court of Justice declared decisions of an Association Council which has been set up by an agreement between the Community and third countries to be directly applicable under defined circumstances (clear, unconditional).

An act corresponding to a directive shall (in a parallel to Article 249 par. 3 EC Treaty) leave to the authorities of the Contracting Parties the choice of forms and method of implementation. Whether the lack of proper implementation by an EFTA State can generate the consequence of direct applicability depends again upon the prevalence of the monistic and dualistic doctrine in the EFTA State concerned, and upon the general or particular compliance of a dualistic EFTA State with the inherent obligations of the EEA Agreement as spelled out in "RESTAMARK"70 and "SVEINBJORNSDOTTIR"71.

b. Special rules apply to decisions under the EEA Agreement by the EFTA-Surveillance Authority and the EC Commission, which impose a pecuniary obligation on persons other than States. According to Art. 110 par.1 of the Agreement they shall be enforceable. The same shall apply to such judgments under the EEA Agreement by the Court of Justice, the Court of First Instance and the EFTA Court. Enforcement shall be governed by the rules of civil procedure in force in the State in whose territory it is carried out.

3.2 Supremacy

Secondly, as far as the supremacy - rule is concerned; the EEA Agreement again contains no express provisions on this question in relation to Agreement provisions and subsequent decisions. However, several authors (e.g. Koller72, Lombardi73 or not Jacot-Guillarmod74) have long since drawn a parallel to the jurisdiction of the Court of Justice of the EC. However, if the Agreement does not create a new legal order in the sense of the COSTA/ENEL-decision 75(criteria: unlimited duration, own institutions, own personality, on legal capacity, own capacity of representation on the international level, real powers), distinctions must be made.

3.2.1 EFTA States

It follows from the observations on direct applicability that the supremacy of Agreement provisions, of other provisions, and of decisions taken in the framework of the EEA Agreement in relation to contradicting national laws, again depends in EFTA States upon the specific rules of the respective State as to the relation between international law and national law, however embodied in the obligations of the EEA Agreement as laid down in "RESTAMARK"76 and "SVEINBJORNSDOTTIR"77. Hence, in principle, in the monistic concept the Agreement and other directly applicable provisions should enjoy supremacy, while in the dualistic concept the inner-state rank depends on the national transformation act. However, several provisions of the Agreement point to a qualified obligation under international law to secure the supremacy of EEA-provisions in analogy to EC law: in particular the preamble, Articles 1, 3, 6 and Protocol 35. As a consequence, the advice which the EFTA Court has given to national courts regarding the way the national implementation acts78 are interpreted "naturally" and/or "inherently" does not imply an unreasonable argument.

3.2.2 EC States

As far as the EC States are concerned, supremacy in relation to national law can be deducted from the character of the Agreement as a Treaty of Communities in the realm of provisions of its competences.

3.3. Directive Conform Interpretation

As far as the third element, the obligation of directive-conform interpretation in concerned, this question should be decided in line with the binding force of an act corresponding to a directive. In other words: the obligation of implementation under the EEA Agreement also entails the obligation of national courts to interpret national law in accordance with such an act. The basis and the consequences of this obligation should be understood according to the general relationship between EEA law and national law.

3.4. Preliminary Reference

Finally the fourth element, the mandatory reference procedure, does not exist under the EEA Agreement, since an EEA-Court could not be established and the EEA arbitration, which is restricted to very specific questions, is only a pale reminder of the original project. Concerning the EFTA Court, its former President Bjorn Haug had already pointed out in 1996 that, unlike the preliminary rulings procedures of the Court of Justice, the national courts are not under an obligation to seek the opinion either80. Haug came to this conclusion:"Thus, the EFTA Court is in no sense a supranational or superior court in relation to national court proceedings"81. In 1998, in conformity with this assessment, Graver held that whereas national courts under Community law are limited in their jurisdiction, no such limits exist under EEA law82.

3.5. Summary

Summarizing all these observations, it emerges that on the surface, clear parallels exist, but that in the depth of the legal waters there are also substantive differences between EC law and EEA law concerning the question of supranationality and national legal autonomy. This again mirrors the distinctive differences in the legal natures of the EEA and the EC, but also- once again- the hybrid concept of the EEA-construction: homogeneity without supranationality.



1 See, e.g., H.P. Ipsen, Uber Supranationalitat, in: H.P. Ipsen, Europaisches Gemeinschaftsrechen in Einyelstudien, 1984, S.97ff.; H. Lecheler, „Supranationalitat" der Europaischen Gemeinschaften-Rechtliche Beschreiburg oder unverbindliche Leerformel?, JuS 1974, 7 ff.; M. Zuleeg, Wandlungen des Begriffs der Supranationalitat, integration 1988, 103ff.; G. Nicolaysen, Europarcht I, 1991, S.28ff.; T. Opperman, Europarecht, 1991, S. 776; Streinz, Europarecht, 4. Aufl.1999, S.41.

2 Slg. 1963, 1.

3 Slg. 1974, 1337.

4 Slg. 1964, 1141.

5 Slg. 1984, 1891.

6 See note 2.

7 See note 4.

8 BFH EuR 1985, 191.

9 Slg. 1982, 53.

10 Slg. 1982, 2301.

11 Slg. 1984, 1087.

12 BverfGE 75, 223.

13 BverfGE 89, 155.

14 Vgl. G. Hirsch, Kooperation oder Konfrontation?, NJW 1996, 2460 f.

15 NJW 1994, 2609.

16 EuZW 1996, 158.

17 EuZW 1995, 588.

18 NJW 1996, 126.

19 See note 14.

20 BverfGE 73, 339.

21 See as an analysis of the judgement P/ C. Muller-Graff/F.G.Bulst, New Isseues in a Sensitive Relationship, Europarattslig Tidskrift 200, 295.

22 Slg. 1987, 4199.

23 See note 21.

24 See note 4.

25 See P.-C Muller-Graft, Diritto privato communitario, Rassegna di dirito civile 1997, 281, 284.

26 See Article 81 par.2 EC Treaty.

27 Slg. 14ff. GWB..

28 See, e.g. BGH EuZW 1996, 761.

29 BverfGE 37, 271.

30 See, e.g. H.P. Ipsen, EuR 1987, 1ff.

31 BverfGE 73, 339.

32 See note 13.

33 This task was already understood by the Court of Justice in 1969: see Slg.1969, 419 (Stauder); for the development see e.g., P.-C. Muller-Graff, Europaische Verfassung und Grundrechtscharta- Die Europaische Union als transnationales Gemeinwesen, Integration 2000, 34 ff.

34 VG Frankfurt, EuZW 1997, 182.

35 Slg.1994 I-4973.

36 BverfG, BeschluB v. 7.6.2000.

37 See note 5.

38 See P.-C. Muller-Graff, Gemeinsames Privatrecht in der Europaischen Gemeinschaft, in P.-C. Muller-Graff (Hrsg.), Gemeinsames Privatrecht in der Europaischen Gemeinschaft, 2. Aufl. 1999, S.52.

39 See See P.-C. Muller-Graff, Europaische Normgembung und ihre judikative Umsetzung in nationales Recht, DriZ 1996, 259ff., 305ff.

40 See note 5.

41 BAG NJW 1990, 65.

42 Slg.1997, I-2195 (Draempaehl).

43 Slg. 1987, 4199.

44 For the case of Art. 234 par. 3 EC Treaty see Slg. 1982, 3415 note 13.

45 See Slg. 1996, I-1029.

46 See note 28.

47 See note 39.

48 See note 8.

49 BVerfGE 75, 223.

50 H. Koller, O Jacot-Guillarmod (Hrsg.), EWR-Abkommen/Accord EEE/EEA Agreement, 1992, 825.

51 See note 2.

52 See P.-C. Muller-Graff, EEa Agreement and EC law: A Comparison in Scope and Content-Overview on the Baic Legal Link between Norway and the European Union, in : P.-C. Muller-Graff/E. Selving (eds), The European Economic Area, 1997, 17 (Skriftserie for Tysk-Norsk Rett, Bind 1); for the procedural side see F. Sejersted, Between Sovereignity and supranationalism in the EEA Context - On the Legal Dynamics of the EEA Agreement, id. p. 43, 51; C. Baudenbacher, The EFTA Court and the European Court, in : P.-C. Muller-Graff/E. Selving (Hrgs.), EEA-EU-Relations, 1999, p. 69, 72 (Skritserie for tysk-Norsk Rett, Bind 1).

53 See H.P. Graver, The EFTA Court and the Court of Justice of the EC: Legal Homogenity at stake?, in P.-C. Muller-Graff/E. Selving (eds), EEA-EU-Relations, 1999, p.48 (Skritserie for tysk-Norsk Rett, Bind 2)

54 See Case E 9/97.

55 See case E 1/94.

56 C. Baudenbacher, Between Homogeneity and Independence: The Legal Position of the EFTA Court in the European Economic Area, 3 Columbia Journal of European Law 201 (1997).

57 See note 53.

58 Id., p.55.

59 For these distinctions and consequences see already P.-C. Muller-Graff, note 52.

60 See note 55.

61 See note 54.

62 See note 53.

63 Slg. 1987, 3717 at note 14.

64 Slg. 1991, 199 at note 15.

65 For this see P.-C. Muller- Graff, note 52.

66 See W. Van Gerven, The genesis of EEA Law and the Principles of Primacy and Direct Effect, 16 Fordham International Law Journal, 955 (1992/93); H.P. Graver, note 53.

67 See note 55.

68 See H.P. Graver, note 53.

69 Slg. 1990, 3461 at notes 7 to 26.

70 See note 55.

71 See note 54.

72 See H. Koller, note 50 at p.825, 828.

73 A. Lombardi, ibid., at p 726.

74 O. Jacot-Guillarmod, ibid., at p. 70.

75 See note 4.

76 See note 55.

77 See note 54.

78 See above.

80 B. Haug, The EFTA Court, in P.-C. Muller-Graff/E. Selvig (eds.), The European Economic Area, 1997, p. 75, 79 (Skriftserie for Tysk-Norsk Rett, Bind 1).

81 Ibid., p. 80.

82 See note 53.


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