18.1.3.1. General Considerations
In the context of Title VI, the third pillar,107 the measures that may be adopted by the Council are listed in Article 34 EU. The Council may adopt common positions, framework decisionsand decisions, and may establish con- ventions which it shall recommend to the Member States for adoption.
Framework decisionsare adopted for the purpose of approximation of the laws and regulations of the Member States and are binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of methods and form. They are, if you will, the third
107It is, I agree, not correct to speak of ‘pillars’ as in the pillar structure of a Greek temple, since the image over-emphasises the separation and distinctiveness of the pillars, rather than the unity of the entire construct. If an image must be used – images, even if they are never perfect, do make a theory visible – those of the ‘Gothic cathedral’ or the ‘holy trin- ity’ are to be preferred, as they reflect better the complex reality, the unity and interwo- venness of the ‘sub-organisations’ in one European Union. See JHH Weiler, ‘Neither Unity nor Three Pillars. The Trinity Structure of the Treaty on European Union’, in J Monar, et al, (eds), The Maastricht Treaty on European Union. Legal Complexity and Political Dynamic (Brussels, EIP, 1993) 49; B De Witte, ‘The Pillar Structure and the Nature of the European Union: Greek Temple or French Gothic Cathedral’, in T Heukels,et al, (eds), The European Union After Amsterdam (Deventer, Kluwer, 1998) 51; The image of the Russian doll is less well chosen since it seems to presume that the various sub-organisa- tions are fitted one inside the other; it does have the advantage of being less ‘architec- turally ambitious’, see D Curtin and I Dekker, ‘The EU as a “Layered” International Organization: Institutional Unity in Disguise’, in P Craig and G de Búrca (eds), The Evolution of EU Law (Oxford, OUP, 1999) 83, at 132. However, in EU law parlance, it is still common to speak of the ‘third pillar’, more than of ‘Title VI’ or PJCC, for instance, terms which are known almost only to ‘insiders’. I will therefore, also use the notion of ‘second and third pillar’.
pillar version of directives. They shall not, according to Article 34(2)(b) EU, entail direct effect. Decisionsare binding, but, again, they shall not entail direct effect according to Article 34(2)(c). The Council shall, acting by qualified majority, adopt measures necessary to implement those decisions at the level of the Union. Conventions established by the Council within Title VI shall be recommended for adoption to the Member States, in accordance with their respective constitutional requirements.
In contrast to Title IV, the mainstream Community provisions on the Court’s jurisdiction do not apply in Title VI. The jurisdiction of the Court in the context of Title VI is limited to what is specifically provided for in Article 35 EU. Under that provision, the Court of Justice has juris- diction to give preliminary rulings on the validity and interpretation of framework decisions and decisions on the interpretation of conventions established under Title VI and on the validity and interpretation of measures implementing them,108ifthe Member State has agreed accept jurisdiction of the Court of Justice to give these preliminary rulings.
Member States are not obliged to accept the jurisdiction of the Court of Justice to give preliminary rulings. Under Article 35(2) EU, the Member States may, at the time of signing the Treaty of Amsterdam or any time thereafter make a declaration accepting the jurisdiction of the Court of Justice to give preliminary rulings. Under Article 35(3) EU a State mak- ing a declaration must specify whether (a) any court or tribunal of that Stateagainst whose decisions there is no judicial remedyunder national law mayrequest the Court of Justice to give a preliminary ruling on a ques- tion raised in a case pending before it and concerning the validity or interpretation of an act referred to in paragraph 1 if that court or tribu- nal considers that a decision on the question is necessary to enable it to give judgment; or (b) anycourt or tribunal of that State mayrequest the Court of Justice to give a preliminary ruling on a question raised in a case pending before it and concerning the validity or interpretation of an act referred to in paragraph 1 if that court or tribunal considers that a decision on the question is necessary to enable it to give judgment.
Several Member States have opted for a third version: they have reserved the right to make it obligatory for the courts of final instance to
108Note that Art. 35 EU does not give the Court jurisdiction to rule on the interpretation of Title VI itself, in contrast to Art. 68(1) EC on Title IV. Yet, it seems impossible to refrain from interpreting the basis of an act when interpreting the act itself. Say that the validity of a decision is challenged on grounds of lack of competence: in order to assess the valid- ity the Court will have to interpret the text of the Title to be able to decide the case. Any doubts are removed by Art. 46 EU (former Art. L) which provides that the provisions of the Community Treaties on the powers of the ECJ and the exercise thereof shall apply (b) to the provisions of Title VI under the conditions provided for in Art. 35 EU, see also S Peers, art. cit., at 376.
refer. This possibility is not provided for in Article 35(3) EU but is clearly inspired by the system of Article 234 EC and was also mentioned as a possible choice in the Declaration on Article K7 of the Treaty on European Union adopted at Amsterdam.109
Under Article 35(5) EU the Court has no jurisdiction to review the validity or proportionality of operations carried out by the police or other law enforcement services of a Member State or the exercise of the respon- sibilities incumbent on Member State with regard to the maintenance of law and order and the safeguarding of internal security. There is also a parallel with actions for annulment: under Article 35(6) EU the Court has jurisdiction to review the legality of framework decisions and decisions in actions brought by a Member State or the Commission, but not by private applicants, on the same four grounds as provided for in Article 230 EC.
Finally, Article 35(7) EU creates a dispute settlement mechanism for dis- putes between Member States regarding the application or interpretation of all types of acts which may be adopted under this Title: if such dispute cannot be settled by the Council within six months, the Court has juris- diction to rule on it. The Court also has jurisdiction to rule on any dispute between Member States and the Commission regarding the interpretation or the application of conventions established under Article 34(2)(d) EU.110 Private applicants and the European Parliament remain completely absent from these procedures.
Before the entry into force of the Amsterdam Treaty, the Court of Justice has on one occasion ruled on the validity of a Council act adopted under Title VI in an action brought under Article 173 of the EC Treaty (now Article 230 EC).111The Commission brought an action for annulment chal- lenging the validity of the Council Joint Action regarding air transit visas on grounds that the act should not have been adopted on the basis of the provisions of Title VI, but rather on Article 100(c) of the EC Treaty (old).
109On 1 May 1999, the state of the declarations made under Art. 35 EU was the following:
Spain has recognised jurisdiction of the ECJ on references made by courts of final instance (Art. 35(3)(a) EU); Belgium, Germany, Luxembourg, Italy, the Netherlands, Austria have recognised jurisdiction of the ECJ on references from any court (Art.
35(3)(b) EU) and reserved the right to make provisions in national law to make refer- ences compulsory for highest courts (as did Spain); Greece, Portugal, Finland and Sweden have recognised jurisdiction of the ECJ on references from any court (Art.
35(3)(b) EU); OJ 1999 L 114/56. Ireland, Denmark, the United Kingdom and France had accordingly made no declaration by the time the Treaty of Amsterdam entered into force. The ECJ has handed its first decision under Art. 35 EU references on 11 February 2003 concerning the interpretation of Art. 54 of the Convention implementing the Schengen Agreement, in Joined Cases C–187/01 and C–385/01 Criminal proceedings against Hỹseyin Gửzỹtok and against Klaus Brỹgge[2003] ECR I–1345, on references from the Oberlandesgericht Kửln and the Rechtbank van eerste aanleg Veurne respectively.
Neither was a final instance court.
110By virtue of Art. 35(7) second sentence EU.
111 Case C–170/96 Commission v Council (airport transit visas)[1998] I–2763.
The Court accepted jurisdiction112with reference to Articles L and M of the EU Treaty.113
The issue of the competences of the national courtsin the context of Title VI is even more critical than in the context of Title IV, given the restricted competences of the Court of Justice. The prohibition of national courts to rule on the validity of secondary Community law derives from the prin- ciple of supremacy of Community law and the Foto-Frost principle con- cerning the jurisdiction of national courts. Two central issues thus also arise to answer the question whether national courts have jurisdiction to rule on the validity of acts under the third pillar: the first relates to the effect of the decisions adopted in the context of Title VI in the national legal order, the second to the possibility of transposing Foto-Frostto Title VI. The Foto-Frostissue arises with even more force given the complicat- ing element that the competence of the lower (and the highest) courts to refer a question for preliminary ruling to the Kirchberg varies in accor- dance with the declaration made by the Member State. It is hard to believe that whether or not a national court has the competence to rule on the validity of a decision adopted in the context of Title VI could depend on whether or not its Member State has accepted the jurisdiction of the Court, and in what form. These issues will be analysed in turn.
18.1.3.2. The Supremacy of Acts Adopted under Title VI
No special provision is made on the supremacy of framework decisions and decisions, and indeed, of other acts adopted in the framework of Title VI. Article 34(2)(b) and (c) EU denies direct effect of framework decisions and decisions, but says nothing about their relation to national law. The absence of direct effect does not imply the absence of supremacy. There is no reason why that should automatically follow: Indeed, for Community law also, there is no conclusive link between direct effect and supremacy:
also provisions lacking direct effect are supreme over conflicting national law. What is different, however, is what the court can do with a non-directly effective supreme provision of Community law, and this is
112In Case C–167/94 Grau Gomis and Others[1995] I–1023 where a request for a preliminary ruling which was clearly intended to obtain a ruling on the obligations of the Member States under Art. B EU was dismissed as inadmissible, the Court held that by virtue of Art. L, it ‘clearly has no jurisdiction to interpret that article in the context of such proceedings’.
113Art. L provided that the Court had jurisdiction with respect to Arts. L to S of the EU; Art.
M stated that apart from the provisions of the EU Treaty which expressly amend the Community Treaties, ‘nothing in [the TEU] shall affect the Treaties establishing the European Communities or the subsequent Treaties and Acts modifying or supplementing them’. On ‘bor- der disputes’ see S Peers, ‘Who’s Judging the Watchmen? The Judicial System of the
‘Area of Freedom, Security and Justice’, YEL, 1998, 337, at 393 et seq; RA Wessel, ‘The Inside Looking Out: Consistency and Delimitation in EU External Relations’, 37 CML Rev, 2000, 1135, at 1151.
substantially different from the case of a directly effective provision. On the other hand, is not self-evident that the supremacy of Title VI acts should be accepted. The Court of Justice does have jurisdiction to give preliminary rulings on the interpretation of framework decisions and deci- sions, of conventions and of implementing measures. The question of supremacy of these acts may come up before a national court and be referred to the Court of Justice. While the Court may not grant direct effect to framework decisions and decisions, it may nevertheless declare them, and other Title VI measures, supreme over conflicting national measures.
Will it? Given that whatever the exact nature of the Court of Justice, it is at least an international court, it seems that it will in any case hold Title VI measures superior over national law in cases before it. Any international court gives priority to international law over national law and the general principle that a State cannot plead its own domestic law as a justification for non-compliance with a Treaty obligation applies here.114
Yet, the real question is whether the Court will also award ‘internal supremacy’ to decisions and framework decisions and oblige national courts to grant them precedence over conflicting national law. The first difficulty then is that the Treaty denies direct effect to these acts. In the easiest direct effect – supremacy cases in Community law, supremacy and direct effect operate as a conflict of laws rule:115in the case of a con- flict between Community law and national law, the directly effective Community norm should apply. Yet, the superiority of a framework decision over conflicting national legislation cannot operate as a con- flict of laws rule: the provision of the framework decision ‘shall not entail direct effect’, and for the time being, that seems to mean that
‘individuals cannot derive rights from them and that national courts are not bound to apply them’. What else could be the practical conse- quence of a declaration that the provision is supreme, given the absence of direct effect? The parallel with prevailing Community law would lead one to come up with the doctrines of ‘indirect effect’ or conform interpretation,116 and State liability, the ‘other ways to give effect to Community law’. Even in the absence of direct effect,117the supremacy issue is highly relevant.
114See also JHH Weiler, ‘Neither Unity nor Three Pillars. The Trinity Structure of the Treaty on European Union’, in J Monar et al, The Maastricht Treaty on European Union. Legal Complexity and Political Dynamic (Brussels, EIP, 1993) 49, at 55.
115A rule of conflict decides a case where there are two conflicting applicable norms, whether the court should choose the later, more specific, or higher norm as the case may be.
116Which is in fact also a ‘natural’ reflex of courts confronted with conflicts of norms, includ- ing conflicts with treaty provisions, even, or perhaps even mostly so, in dualist systems.
117There are many provisions of Community law which equally lack direct effect, either because of the nature of the norm, its wording or the nature of the parties in the legal dispute.
In Costa v ENELthe Court based the supremacy of Community law over national law on an amalgam of reasons and arguments,118particu- larly the ‘special and original nature’of Community law, distinguishing it from classic international law, which did not, according to the Court,119by and of itself impose supremacy.120In Internationale Handelsgesellschaft the main ground was again ‘the very nature’ of the law stemming from the Treaty and its character as Community law, and, in addition, the unifor- mity and efficacy of Community law. Now, what does all this say about Community law which cannot be said of the law stemming from the Treaty on European Union in the context of Title VI? According to the unity thesis, which rejects the ‘classic’ presentation of the European Union as a three-pillared Greek temple, the European Union forms one entity from the point of view of the organisation, its actions and its laws. It has been argued121that the same principles on the relationship with national law, including its supremacy, apply to what is known as the second and third pillar. Yet, there are differences between Community law on the one hand and Title V and VI on the other. The very fact that these matters are not inserted in the Community law pillar proves the point. However, several
118To cite the Court, once again: ‘It follows from all these observations that the law stem- ming from the Treaty, an independent source of law, could not, because of its special and original nature, be [judicially] 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. The transfer by the States from their domestic legal system to the Community legal system of the rights and obligations aris- ing under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail’, Case 6/64Costa v ENEL[1964] ECR 585, at 593, my addition, see French version: ‘(..) se voir judiciairement opposer (..)’.
119The Belgian Cour de cassationtook a different stance and argued that the very nature of international law commanded its supremacy, and that this applied a fortiori for Community law, Cour de cassation (B), decision of 27 May 1971, Franco-suisse le Ski, JT, 1971, 460; [1972] CMLR 330; Oppenheimer, The Cases, 245, at 266: ‘The primacy of the treaty results from the very nature of international treaty law’.
120Though this may have been a mistaken position at the time as has been argued by O Spiermann, ‘The Other Side of the Story: An Unpopular Essay on the Making a the European Community Legal Order’, 10 EJIL, 1999, 763.
121A von Bogdandy and M Nettesheim, ‘Ex Pluribus Unum: Fusion of the European Communities into the European Union’, 2 ELJ, 1996, 267, at 283–4; see also A von Bogdandy, ‘The Legal Case for Unity: The European Union as a Single Organization with a Single Legal System’, 36 CML Rev, 1999, 887; for a more nuanced view, see B De Witte,
‘The Pillar Structure and the nature of the European Union: Greek Temple or French Gothic Cathedral’, in T Heukels et al, The European Union After Amsterdam, (The Hague, Kluwer, 1998) 51. De Witte considers the Communities as sub-organisations which have their own legal existence, while Nettesheim and von Bogdandy take it one step further and argue that the Communities are completely encapsulated within the one entity of the European Union while the European Community no longer has a legal existence but is merely a separate legal regime; for a similar view see also D Curtin and I Dekker, ‘The EU as a “Layered”
International Organization: Institutional Unity in Disguise’, in P Craig and G de Búrca (eds), The Evolution of EU Law (Oxford, OUP, 1999) 55; RA Wessel, ‘The Inside Looking Out:
Consistency and Delimitation in EU External Relations’, 37 CML Rev, 2000, 1135.