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MUTUAL RESPECT AND RESIDUAL TENSIONS BETWEEN THE SYSTEMS OF PROTECTION…
the absence of affecting a rule or a principle inherent to the constitutional identity of
France, the Constitutional Council has no jurisdiction to monitor compliance with
the rights and freedoms guaranteed by the Constitution of statutes which merely
draw necessary consequences from unconditional and precise provisions of an EU
directive; in this case, it belongs only to EU Courts … to monitor compliance by this
Directive of fundamental rights guaranteed by [EU law]”.
40
Accordingly, unless the applicant proves that the alleged violation of fundamental
rights affects a rule or principle inherent to the national constitutional identity, the
French Constitutional Council will not review whether EU law respects these rights.
Moreover, it seems to follow from its case-law that such a proof will be accepted only in
exceptional circumstances and that the review is not dependant on respective levels of
protection provided by the EU standard and by the national standard of fundamental
rights.
41
Consequently, it can be assumed that the French Constitutional Council
renounces, in principle, to control the compatibility with fundamental rights by EU
law and that it recognises, in this respect, the competence of the Court of Justice.
The second approach is less favourable for EU law. It was introduced by the
German Constitutional Court in
Solange II,
42
and this court reaffirmed it in the
Data
Retention Ruling
in 2010 (even though this ruling hinted a possible radicalisation of
the court’s attitude – see
infra
).
43
The approach is based on a “latent review” of the
EU standard of fundamental rights, which means that the constitutional court does
not, in principle, carry out a control of the constitutionality of the contested act
insofar as its content is determined by EU law. Such a systematic review would be, in
its view, inconsistent with the primacy of application of EU law. However, as a sort of
an “emergency brake”, the court declares its readiness to proceed to such a control if
the EU standard of protection of fundamental rights is not equivalent to the national
standard any more. The perspective of that review is thus presented as a Damocles
sword for the EU legal order and, more specifically, as a warning for the EU legislator
and for the Court of Justice.
40
Judgement of 17 December 2010,
Kamel D
., n° 2010-79 QPC. See also Judgement of the French
Constitutional Court of 10 June 2004,
Loi pour la confiance dans l’économie numérique
, n° 2004-496
DC. This approach is also followed by the Conseil d’État (Supreme Administrative Court, see Decision
of 8 February 2007,
Société Arcelor Atlantique
, n° 287110).
41
See rulings cited in previous note.
42
It can be briefly recalled that this decision follows the
Solange I
ruling, in which the German
constitutional court held that the European legal order did not guarantee an adequate standard of
protection of fundamental rights, and that “as long as” (
solange
) it had not developed such a standard, it
would not apply rules of this legal order if they violate fundamental rights enshrined in German Basic
Law. In
Solange II
, the German Constitutional Court recognised that, in the meantime, the Court of
Justice had begun to adequately protect the fundamental rights, and it abandoned these reservations.
It added that “as long as” (“
solange
”) the Court of Justice continues to protect fundamental rights
adequately, it would no longer examine the compatibility of Community legislation with German
fundamental rights.
43
Ruling cited above in note 19, paragraph 181.