CYIL Vol. 4, 2013

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.