Abstract
A few years ago we examined the topic in the title in writing, tackling it from the two perspectives in which it might be raised (each, of course, being necessarily connected): that of the relationship (which may be termed material‐functional) between the two normative complexes, considered in themselves; and that of the relationship (which may be termed organic‐functional) likely to become established between the court systems from which, ultimately, the respective types of remedy are to be sought, namely the Portuguese Constitutional Court and the European Court of Justice.
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This is, we believe, the crucial point. In fact, the most problematic aspect is not so much the side of the question that we have labelled material‐functional – since in this regard, the TEU itself is based on the major legal values common to the Member States (Art. 2) and on the safeguarding of the constitutional traditions specific to each of them (Art. 4.2); the more difficult aspect is really knowing whether the guarantee of harmonisation thus postulated between EU law and national constitutions should be reserved exclusively to the ECJ or whether it must be shared with constitutional courts (or the supreme courts) of the Member States. We declare a preference for the latter, in the belief that although it may entail some cost in terms of instability or ambiguity, this will finally match the cost of the similarly unstable balance, a balance left deliberately unresolved, which continues to characterise, institutionally, the European Union as a political formation. For a similar opinion, see Ramos 2005, p. 375 et seq., 394 et seq.
Thus, taking into account what has just been mentioned, we think a similar response should be given today to the issue that parallels the one addressed in the main text, and that we had merely referred to in our previous article: the issue of a rule being made or a decision taken by an organ of the Union, allegedly ultra vires, i. e. beyond the functions and powers permitted by the Treaties. Here also our tendency, at least, is to favour the view that the possibility of intervention of the domestic courts (especially constitutional) in the question should not be categorically excluded, although the main word belongs, of course, to the ECJ. As is well known, it is precisely such issues that the German FCC has concluded that it possesses jurisdiction to hear. As for the Portuguese case, and in the absence of any established judicial practice related to the issue, it may however be added that the view advanced here may perhaps now find extra support in Art. 8.4 of the Constitution, as it expressly makes the domestic applicability of EU laws, with the force that it recognises them to have, dependent on them having been “issued by its institutions, in the exercise of their respective powers” (cf. infra, in the main text).
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As for the definition of that core, we believe that it cannot be derived from any generic concept of the “democratic rule of law”, but rather from the way the Portuguese Constitution conceives and fashions it (perhaps with its own idiosyncrasies and singularity), and certainly not by restricting itself to the sphere of fundamental rights: indications of principle may be provided by the list of “material limits” for constitutional revision, in accordance with Art. 288.
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While we cannot develop the point in all its detail and with all its implications, it should nevertheless be noted that the problem in question (which has been raised in practice, cf. infra) was, under the Portuguese system of judiciary review of legislation, fundamentally one of finding out if a person affected could lodge an “appeal on constitutionality” to the Constitutional Court, based on the application by a lower court of a domestic provision contrary to EU law.
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This has provoked an extended and intense doctrinal debate (in addition, predictably, to an intense political debate, heavily reported in the media): for the former see the different views expressed in the collection of articles in Ribeiro and Coutinho 2014 and Novais 2014. Note however that the constitutional issues raised by the financial crisis has given rise to widespread interest amongst scholars, in particular in the IXth IACL World Congress of Constitutional Law, which took place in Oslo in June 2014, where two of the workshops were indeed devoted to the topics of “Social Rights and the Economic Crisis” and “Constitutions and Financial Crisis”: the papers presented there (including Portuguese ones and others dealing with the case of Portugal) are still available on the website www.uio.no/wccl
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As we know, this is the position in Germany with the parallel rule in Art. 115 BL (German BL, Grundgesetz) – which, as we also know, was the source of inspiration for Art. 3 of the Treaty.
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Constitutional Court of Portugal, Acórdão n.º 374/2004 (26 May 2004), http://www.tribunalconstitucional.pt/tc/acordaos/20040374.html
References
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Cardoso da Costa, J.M.M. (2015). The Portuguese Constitution and European Union Law. In: Blanke, HJ., Cruz Villalón, P., Klein, T., Ziller, J. (eds) Common European Legal Thinking. Springer, Cham. https://doi.org/10.1007/978-3-319-19300-7_7
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