The EU & the Rule of Recognition

The emergence of the European Union and of its judicial organ, as well as the further development of an extensive regulation scheme for the member States, have created through the years a growing tension between the National law of the Member States and European law. This tension has manifested itself in various manners. For instance, questions about what is the supreme law to be applied in concrete cases and about which is the organ entitled to determine such supreme law and/or its validity have been raised by legal scholars as well as by the Justices of various of the ultimate courts of the Member States. Yet, the approaches posited thus far to deal with this conflict have proven to be insufficient. The reason for such failure is that these approaches have disregarded for the most part the underlying reason for the conflict, namely the change in the rule of recognition that took place with the emergence of the European Union. Once jurists recognize that as the basic problem, they will be able to elucidate successfully the new rule of recognition which in turn holds the key to resolve the tension between National and European law.

The failure to deal with the real issue at stake is present in the simplest approaches developed to deal with the issue as well as in the more complex formulations. For instance, the simplest approaches – under which either the National or the European law is chosen to be the supreme law[1] – have disregarded the fact that what has created the growing tension between the National Courts and the European Court of Justice is precisely the incapacity of the Courts to accept that the creation of the European Union precipitated a change in the rule of recognition in the legal systems of the Member States which needs to be elucidated. For example the arguments made for the adoption of the NCS approach has been that NCS has been the practice in the Nation States members of the European Union. Yet, this reasoning does not recognize the fact the ultimate rule of recognition can be changed by the legal actors as it indeed happened with the creation of the European Union. Another argument that has been posited to further both the NCS and the ECS is whether it can be asserted that an European demos in fact does exist and that this constituent power has established a new rule of recognition, namely the ECS. This reasoning is feeble – even though it might be able to accommodate concerns with the rule of recognition – since it relies on the notion that the emergence or existence of an European demos would inevitably mean the selection by the citizens of the Member States of the ECS approach and the non existence of such a demos would imply the selection of the NCS approach. But this is a fallacy since both approaches can be sustained under either scenario. Thus, the capacity for accepting a change in the rule of recognition and its latter elucidation are hampered by the a priori conceptions embedded in the models.

Another approach posited to resolve the issue between National and European law has been the use of the Principle of Best Fit. Under this approach, neither ECS nor NCS applies; rather courts are called to construct an adequate relationship between the European and the National law by looking into the underlying principles of both regulations. This approach is focused on the content of the regulation rather than on a principle of decision-making free from the content of the law. Hence, the Principle of Best Fit does not attend the real issue behind the conflict between National and European law, namely the confusion or lack of certainty with regards to the ultimate rule of recognition. Yet, professor Kumm asserts that the Principle of Best Fit is a good starting point to a possible solution which he designates with the name “Constitutionalism Beyond the State” (CBS).

CBS is an approach which tries to move away from the binary choices of the ECS or NCS, as the Principle of Best Fit does. Yet, unlike the Principle of Best Fit the CBS goes beyond the examination and weighing of the underlying principles of National and European Law. The approach is basically an approach of conflict of laws that takes into account as restricting factors on the primary analysis principles of legality, jurisdiction, subsidiarity and procedural principles of democracy. Although this approach seems to be a very practical solution to the issue of conflict between National and European Law, I am not sure it tackles with the real issue: the uncertainty with regards to the ultimate rule of recognition under the European Law supranational regulation; or if it does, it should do it explicitly since to a great extent it is dependent on the content of the laws at issue. It also conflates the questions about what is the supreme law to be applied in concrete cases and about which is the organ entitled to determine such supreme law and/or its validity, which in reality are not tied and should be answer separately in order to come up with a theoretical framework that can serve better the courts to solve the current conflicts they are facing.

Thus, I would argue for a framework which posits explicitly the conflict between National and European law as a problem in determining the rule of recognition. Yet, I do believe the rule of recognition after the creation of European Union does not necessarily have to be constructed as vertical one. Indeed, I think the problem in determining the rule thus far has been precisely the insistence on constructing the rule of recognition in vertical formulation, which leads to binary choices. The problem of conflict between European and National law can be solved by removing the uncertainty about a rule of recognition and by realizing and accepting that indeed a change in the rule of recognition took place with the emergence of the European Union. That change has produced a more complicated configuration in the rule of recognition, which in the best speculation has both vertical and horizontal dimensions. The rule of recognition must also include restrictions based on principles shared by both the Union and National legal systems, which permits their successful integration and interaction. Finally, I believe that this new rule of recognition does not say anything with regard to the organ entitled to determine the validity of the norms under the ultimate rule of recognition. In fact, both the National Courts and the European Court of Justice should have the capacity of make such determinations and apply the rule of recognition to the cases they hear.

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[1] Professor Mattias Kumm has designated these approaches as the National Constitutional Supremacy (NCS) and the European Constitutional Supremacy (ECS) respectively.