Each structured community needs a regulation of competences, that is true for all conceivable forms of interrelated communities and it therefore applies to a federal state as it does apply to sovereign states that have grouped together to form a supra-national organisation. There have to be binding rules which specify exactly what tasks are to be carried out by what authority and at what level. A system professing to be based on the rule of law has to be structured in such a way that this regulation of competences is legally binding because that is the only way in which it is sufficiently predictable and calculable and it has to be so for reasons of the rule of law and in the interest of efficiency: predictable and calculable, both for the institutions of the member state and for the institutions of the community and also for the individual citizens.
Compliance with these legally established competences and their levels is something which - in a system that purports to fulfil the requirements of a well-functioning separation of powers - has to be subject to judicial review. That is a lot more than just legal formality because sticking to these various levels of competences is something that we absolutely need if a structured community is supposed to survive.
The principle on which this attribution of competences is based is the principle of subsidiarity.
We had a long discussion concerning the legal quality of this principle of subsidiarity and in this discussion a conception won the day which was no longer queried afterwards and which shows, I think, that we have forgotten the fact that for decades we were not aware of what exactly this principle means. In literature it is quite clear, it says that the principle of subsidiarity – because of its high degree of abstraction – is not in itself suitable as a basis for decisions on concrete questions of law and that is exactly in line with what President Skouris said, namely that the principle of subsidiarity as such is not so important for jurisprudence, but it is a legal principle, a transparent but not fully specified benchmark for the activities of the State, which explains value judgments, offers points of reference for decisions and it sets normative limits to the discretion of each law maker. It is something similar to what we in Austria call an intrinsic principle of the Constitution. Which means it cannot in itself as a rule be implemented directly but in the light of this principle you have to interpret the various competence regulations. In a country which came up with the invention of these various levels, President Skouris, the principle of subsidiarity is seen as the main function which allows you to establish the various competences and which is defined in more concrete terms by the system of individual authorisations for community acts and the principle of precedence to be given to the member states when exercising competing competences. In addition there is the principle of proportionality when exercising community competences.
These provisions of community law which deal with the various attributions of competences and which define in greater detail the principle of subsidiarity, are primarily directed at the community legislator. Due to this system of limited individual authorisations, the community legislator must look at the competence basis each time for each regulation, and must abstain from any regulations that would infringe the distribution of competences between the community organs and the organs of the member states or that go beyond what is necessary in order to achieve the aims of Treaty. That is why the criticism that the competences of the community organs are enlarged even further, is a criticism that has to be directed at the legislative organs of the Community, in particular the Commission and the Council.
The European Court of Justice has repeatedly taken into account this aspect in its reviewing activity, most impressively I think, in those decisions in which it found against the opinion of the Commission and also against the opinion of some Advocates General, saying that the measures aimed at realising the single market cannot be based on the sole and exclusive competence of the Community.
But, of course, I have to admit that there are also examples going in a different direction, where the European Court of Justice when assessing the basis for the competences, took as a yardstick only what was desirable and expedient and not what was necessary. I am thinking, for example, of the decision on the directive on working hours from 1906.
The danger of an application of the competence rules of the primary law that is not in compliance with the principle of subsidiarity lies in the new “supporting and complementing competences” as they are called. In order to give you a concrete example, Article 149, paragraph 1 of the Treaty says: The Community shall contribute to the development of quality education by encouraging cooperation between Member States and by supporting and supplementing their action, while fully respecting the responsibility of the Member States among others for the … organisation of education systems ….
This type of competences “supporting and supplementing national measures” as it is applied to some important areas of culture, health, consumer protection, research and the environment - to mention just a few - this principle entails the danger of a “usurpation of competences”. These competences must not be used in such a manner that genuinely national competences are undermined or their content becomes illusory. I know the political dilemma here very well: member states want support for some specific measures that are important for them, and this support is sometimes more important for them than the preservation of the member state’s national competences. And, the other way round, if you support something you want to have to define what is supported by the community organs. In Vienna we say he who pays the fiddler calls the tune.
All this attitude is politically understandable, however from a legal point of view it is not admissible. This sort of attitude leads to political problems. The examples mentioned at the beginning of today’s morning session where very, very impressive. That means that the primary law of the Community in this area of supporting and supplementing competences is based on the fundamental responsibility of the member states.
As I have already pointed out, the rules on the attribution and exercise of competence are primarily addressed to the Community legislator, but the European Court of Justice has the task to control and to verify whether the legislator has really remained within the scope allotted to him and has not transgressed it.
I dare to suggest that in today’s system of a clearly specified and differentiated Community law, which gives priority to primary law as against secondary legislation, and which also says that it is necessary to secure the distribution of competences between the member states and the Community, the European Court of Justice probably has a different role to play than it had in the first decades when the European Economic Community was developing. Whereas in those days the European Court of Justice was seen primarily as the engine of integration, it no longer has this task now. Especially in the light of the principle of subsidiarity, now the task of the European Court of Justice is, I think, to have regard to the limits of competence of the community organs and thus to secure the very core of the member’s state sovereignty vis-à-vis the Community.
One should always be careful when talking about a “change in paradigm” because what might create this impression at first sight and what might make you think it is a change in paradigm could very well turn out - if you look at it closer - to be a continuous development. But a development of the European Court of Justice towards a competence court has been reinforced by the subsidiarity principle and its realisation through the Treaty.
There is a second point I would like draw your attention to, based on my experience as a judge of constitutional law. Like all our institutions, the European Court of Justice has to keep a balance between the provisions of European Law and the discretion granted to the member states when it comes to their concrete implementation.
For a constitutional court that has to control the legislator, it is a matter of balancing the specific constitutional principles on the hand, and the legislative leeway on the other. If one wants to be serious about the constitution, one would have to abolish a law which for example, disproportionately limits a fundamental right or differentiates without factual justification. In that respect it is necessary for the Constitutional Court to further specify the relatively open concepts of the constitution. But a constitutional court must never become a supreme law-maker who knows everything better. As a rule, the constitution gives the legislator a number of possibilities of legislating and it is not the task of a constitutional court to decide which of these possibilities is most in line with the established constitutional principles.
This is very much the case, ladies and gentlemen, for the European Court of Justice. The European Court of Justice has to keep the balance between the member states’ sovereignty to legislate and the realisation of the necessary uniformity of Community legislation, on the other hand. Here again, the right balances is what counts. In the last analysis, President Skouris, please allow me to say that just now, it is the old Aristotelian mean that one has to strive for this balance between the various extremes. Certainly, the European Court of Justice should not stand by and just watch things happen, otherwise the European internal market would disintegrate, the single economic area would no longer exist, and we would probably have discriminations again. But, on the other hand, the European Court of Justice also has to accept that there are often different possibilities, different ways in which the national legislator can avoid discrimination. Under the principle of subsidiarity the national freedom to specify the content of legal rights, has to be complied with as far as possible.
I have given you a few and necessarily short sketchy indications here. Can they serve as a basis for a wish list? Let me
First of all, just as every state organ exercising its competence has to do this in full respect of the competences of the other state organs, in the same way community institutions and state organs have to handle their competences in full respect of the competences of their respective counterpart.
Secondly, constitutional courts and the European Constitutional Court have to strive for a balance between the necessary concretisation and realisation of the provisions established in the Constitution or in European Law, on the one hand, and the freedom of the national legislator to establish the detailed content of the rules to implement them on the other hand. It is absolutely essential to develop a certain sensitivity in this respect.
Thank you very much.
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