SOVEREIGNTY AND EU MEMBERSHIP: LIMITS SET TO THE TRANSFER OF POWERS AS SET BY CONSTITUTIONAL COURTS
The cornerstone of national constitutions is the idea that sovereignty is vested in the people. Accordingly, national constitutions establish the pouvoir constituant’s agreement on how sovereign powers are distributed and exercised in the state.
Sovereignty comprises two facets. The first is internal sovereignty, connoting the supreme decision-making power in the state. The second is external sovereignty, which refers to the autonomy of action in the international arena. In both internal and external sovereignty, the national constitutions embody the idea that no supreme power can be imposed outside the constitutionally established mechanisms. As noted previously, constitutions have been amended to allow delegation or transfer of powers to the European Union specifically or to international organizations in general. Notwithstanding the differences in the means of authorization, all constitutions share the basic idea that the Member States continue to hold the ultimate authority, and only the exercise of delimited sovereign powers can be transferred.47 Several national constitutional courts have reasserted this view and defined the criteria to delineate the permissible extent of any such delegation. In particular, the creation of the European Union and the deepening of integration by the Maastricht Treaty sparked an intensive debate on the extent of powers that a Member State may delegate without incurring the loss of its sovereignty. This question was referred to the highest courts in Germany, Denmark, and France. For instance, in the German Maastricht case, the plaintiff argued that the entry into force of the Maastricht Treaty threatened the “existence of the Federal Republic of Germany as an independent sovereign State, something which under Article 79 (3) of the Constitution… cannot be subject to constitutional amendment.”48The German and Danish highest courts established a number of criteria to assess the level of integration permissible so that sovereignty would not be lost.49 The Maastricht decision of the German Constitutional Court has come to be central to the EU’s constitutional discourse, although some points were also repeated in the Maastricht decision of the Danish Supreme Court.
Both courts established that through constitutional procedures these countries have accepted to delegate some competences in order to exercise them in common with the other Member States. Such delegation has to remain strictly within the limits set by the Accession Treaty. In assessing the Maastricht Treaty, both Courts found that the Treaty did exceed these limits nor involved a critical degree of delegation of competences. In the German Maastricht decision, seven broader factors or criteria were established in reaching the conclusion that sovereignty is preserved in the context of EU membership.The first and the main consideration for the German Constitutional Court was that the Member States remain the “Masters of the Treaties.” They maintain this position because each new delegation of competences is subject to their unanimous approval, combined with ratification under the national constitutional procedures. The second main criterion for preserving sovereignty was that the so-called Kompetenz-Kompetenz remains with the Member States: the EU possesses no power over jurisdictional conflicts. The Member States have transferred only limited individual powers, which have been specified in a sufficiently clear and foreseeable manner. Third, the Constitutional Court pointed out that the Union’s competences are mainly confined to the economic field, whereas fundamental spheres of state sovereignty, such as defence, foreign policy, and internal affairs, fall under inter-governmental co-operation, requiring the unanimous consent of all Member States. Fourth, the Court found that the Maastricht Treaty did not exceed the extent to which new powers and functions of a state can be delegated, in that substantial powers still remained with national institutions, thereby upholding the state’s sovereignty. Fifth, the Court noted that democratic legitimacy predominantly derives from the national level. It stems from the national authorisation to delegate new powers and from the accountability of governments vis-à-vis national parliaments for their decision-making activity in the Council.
The European Parliament’s complementary role and the absence of a European people as such further exemplifies the non-state character of the Union according to the German Constitutional Court. Sixth, reference was made to the fact that the EU (at the time) had no legal personality and that the Member States can withdraw from the Union. Last but not least, the Court maintained that ultimate supremacy lies with the national constitutions. In combination with the concept of sovereignty, the Constitutional Court therefore ultimately remains responsible for controlling whether EU institutions act within the limits of the powers conferred upon them by the Member States under the treaties.A set of criteria to delineate the transfer of sovereignty has also been set by the French Constitutional Council, albeit in a different context. Owing to the system of preliminary rather than posterior constitutional review of treaties enshrined in the French Constitution, the Constitutional Council has assessed the need for constitutional amendment rather than issuing warnings about the limits of permissible integration. This was also the case with the ratification of the Maastricht Treaty, where the French Constitutional Council maintained its earlier reasoning that changes to the European treaties may be acceptable provided that they do not undermine “the essential conditions for the exercise of national sovereignty.”50 These “essential conditions” are the state’s institutional structure, the independence of the nation, territorial integrity, and the fundamental rights and liberties of nationals.51 The Constitutional Council found that these conditions had indeed been affected by the provisions of the Maastricht Treaty concerning the Monetary Union, the common visa policy, and the voting rights of EU citizens in local elections. Therefore, the French Constitution was supplemented by a new title on the EU, which included the above-mentioned “European integration clause” (Article 88 (1)) as well as explicit provisions concerning the issues noted (Article 88 (2) and (3)). A similar method was also applied prior to the ratification of the Amsterdam Treaty, leading to what has since been portrayed as a “gradual evaporation” of national sovereignty.52