• The French Council of State - refused to check the legality of the EU emissions law under the French constitution (Photo: Wikipedia)

French sovereignty passions clash with EU legal primacy

20.02.07 @ 17:43

  1. By Mark Beunderman

BRUSSELS - A passionate debate has emerged in France over the challenge posed by EU law to national sovereignty, focusing on the question of whether the ultimate legal authority lies with the French constitution or with the European Court of Justice.

The country which in 2005 rejected the European Constitution has this winter seen an intense public discussion on the supremacy of EU law, with French president Jacques Chirac receiving open letters from academics and with apocalyptic terms flying around.

The debate has partly come as an unintended side-effect of the EU's efforts to fight climate change, which formed the subject of a landmark ruling by the Council of State (Conseil d'Etat) - France's highest administrative court - on 8 February.

In the case before the Council of State, steel company Arcelor complained about its alleged unequal treatment under the EU's Emission Trading Scheme (ETS) which was transposed by France into national law.

Arcelor argued that the EU legislation violates the principle of equality in the French constitution, as it obliges steel firms to pay for polluting CO2 while at the same time exempting competing industries such as the plastics sector.

But the Council of State refused to check the legality of the EU emissions law under the French constitution, instead referring the case to the European Court of Justice (ECJ).

The French court's decision not to conduct a constitutional test on EU legislation is seen as significant as it arguably places France's constitution below the ECJ in the legal hierarchy.

Although the supremacy of EU law over national law has been well-established, the status of national constitutions has been less clear not only in France but also elsewhere, including Germany.

Leading newspaper Le Monde was quick to predict on the day of the ruling that sovereignists and eurosceptics would probably interpret the judgement as a "Waterloo" of French sovereignty - something which became a self-fulfilling prophecy as sovereignists were eager to stress that even Le Monde called the ruling a "Waterloo."

Patrick Louis, a member of the European Parliament for the Mouvement pour la France defending French sovereignty, said "here we've got another flagrant denial of democracy by this latest concession of French judges who have judgement after judgement put their signature under the abandoning of French legal sovereignty on the altar of a federal Europe on the march."

Breakthrough?

The Council of State has been the last French high-level court to refer constitutional questions related to EU law to the ECJ - a move which was earlier made by the country's two other top courts, the Court of Appeal and the Constitutional Council.

"This all comes despite the rejection by the French of the European constitution on 29 May 2005," Mr Louis said.

It is however not only eurosceptics who view the 8 February ruling as important. Philippe Moreau Defarges, a senior researcher calling himself a "federalist," stated the judgement "marks the acceptance by the Council of State of the subordination of the French constitution under EU law."

"It is an inevitable step towards the federal future which I'm convinced we are heading," said Mr Defarges who works for the French Institute of International Relations (IFRI).

Not all analysts however see the judgement as a major breakthrough, with Renaud Dehousse, law professor at the Paris-based Institute of Political Studies (IEP), saying "it is just a confirmation of a trend which was already there."

Mr Dehousse also stressed that the Council of State's referral of the Arcelor case to the ECJ should not be seen as a simple precedent for future cases.

In this particular case, the Council of State argued that the equality principle invoked by Arcelor under the French constitution "is also a general principle of [European] community law," saying that therefore, legal protection of the steel firm by the ECJ would be guaranteed .

But the French court added that in cases where EU law does not offer the same level of protection, "It is up to the [French] administrative judge to directly examine the constitutionality" of EU law - still keeping the ultimate legal authority in its own hands.

'Apocalyptic'

Meanwhile, France in December saw another row over EU law as 40 French professors wrote in a letter to French president Jacques Chirac that legislation deriving from the EU institutions' "excess of power" lacks legitimacy, threatening to no longer "disgrace themselves" by teaching it.

The outburst was followed by a counter-letter by 80 professors denouncing the "dramatic and even apocalyptic tone" of the letter by their colleagues, reassuring that they by contrast did not feel "disgraced" by teaching EU law to their students.

Mr Dehousse said commenting on the intensity of the debate that "In France there has always been a fierce debate between sovereignists and pro-integrationists," but he added that the 2005 referendum on the EU constitution "perhaps put some oil on the fire."

Meanwhile, France is not the only European state where the hierarchy between EU law and the national constitution has been under discussion, with the German constitutional court also making its referral of cases to the ECJ conditional on human rights protection.

Germany's constitutional court is also set to rule whether a revised version of the planned EU constitution - currently under negotiation - is compatible with the German constitution once a new EU text is agreed.