25 April 2021

A Securitarian Solange

France has launched a cluster bomb on the EU’s legal and political order

There is sigh of relief across Europe after the BVerfG has rejected the injunction order by the plaintiffs against the Own Resources Decision. But a decision by the French Conseil d’Etat (the highest administrative court) taken on the same day might be the far more important political decision.

Indeed, the decision by the BVerfG considers that the cost of blocking the agreement far exceeds the risks (including for the international reputation of the German Government).

However, this is not a ruling on the substance of the matter, it is only a decision on the injunction. The Court is still liable (and likely) to refer the case to the ECJ and this could play an important role in future debates to expand and extend the Recovery and Resilience Facility.

It is therefore fair to assume, despite this positive development, that we still have not crossed the Hamiltonian Rubicon and that the legal and political struggle for the RRF to become a permanent mechanism is only starting. This time however, it is quite possible that the ECJ could side with the BVerfG and consider that the legal basis under which the RRF was built is unsuitable to make it a permanent mechanism. On the debates regarding the legal basis used for the RRF and what lies ahead see here and here.

But the more important decision this week is that of the French Conseil d’Etat, which was ruling following a referral to the ECJ. The case is rather simple: the French security services are mandating sweeping collection of personal connection data to internet providers and telecommunication operators in violation of the e-privacy directive. The ECJ has considered in its October 2020 ruling that this practice was not only violating the directive but also violating the EU’s Charter of Fundamental Rights.

Following the ECJ ruling, the French Government doubled down and asked through its General Secretariat of the Government to challenge the European Court of Justice and to possibly follow two legal avenues to mount this challenge:

  • Consider the ECJ as acting ultra vires, thereby effectively take the rather confrontational line of adjudicating on a matter of European Law (in a similar fashion to what the BVerfG did in its PSPP ruling).
  • Claim that this decision was creating a conflict with the French Constitutional order and that these provisions were undermining France’s constitutional identity.

In its conclusions, the Rapporteur Public (equivalent to the Advocate General before the CJEU) has raised a number of quite fundamental questions including the conflict between the Constitutional obligation for the government to ensure national security and the EU’s Charter of Fundamental Rights. Interestingly, the Rapporteur Public raised the possibility to refer the case to the French Constitutional Court potentially cementing the view that France’s Constitutional identity and its mandate to the government to provide security was imperative and unreconcilable with the EU’s Charter of Fundamental Rights.

In its decision, the Conseil d’Etat chose both a less confrontational course than the BVerfG by refusing to consider the ECJ ruling ultra vires, a decision welcomed by Jacques Ziller and many legal scholars, but it also chose to create more assertive and confrontational objection to the Court’s ruling which could have very profound and long lasting consequences on the EU’s legal and political order, something that has been largely unreported.

Indeed, the French Court goes further than the BVerfG by openly resisting the application of EU law. The BVerfG had paved the way for such action in its ultra vires ruling against the PSPP but the German Government and the Bundesbank effectively held back and never effectively disobeyed European law and the ECJ ruling. In this case, the French Government will indeed reject EU law for an extended (and potentially unlimited) period of time.

First, in the case at hand by defying the ruling of the CJEU, the Conseil d’Etat disregards key elements of the ruling that it referred to the CJEU. This open confrontation is a very important precedent that stands in sharp contrast with the decision of the Belgian Constitutional Court taken the day after that complied with the ECJ’s ruling by mandating to strike down the Belgian data collection law.

Second and perhaps more importantly, the French administrative supreme court is, without formally referring to, abusing a legal route akin to what the BVerfG undertook with its 1986 Solange Ruling, where it effectively considered that in the absence of Fundamental Rights and Civil Liberties being protected by the European Court of Justice, the German Constitutional Court reserved the right to rule against the EU to protect the German Constitutional Identity and the protection of fundamental rights.

The 1986 German ruling and the tension it created in the EU’s legal order had an historical importance and eventually led to the adoption of the EU Charter of Fundamental Rights 20 years later. France is trying to use this legal precedent arguing that there are no equivalent security clauses in the EU’s primary law and therefore that France’s constitutional identity warrants protection until the EU’s primary law does empower the EU on internal security matters – a securitarian Solange.

Indeed, the Conseil d’Etat has created a double lock, not only it will allow the Government to continue its surveillance program until the EU is endowed with security provisions in its primary law, but it will also keep its option opens if these provisions are deemed insufficient. This is effectively creating the domestic legal ground for a permanent confrontation between the EU and the French legal order in the field of security.

Furthermore, it is striking that the Conseil d’Etat decided not only to consider public order and security as forming part of France’s Constitutional identity (something that neither the constituent, nor the legislator has done), but more importantly that it gave such a loose and vague definition to national security: “safeguard of the Nation’s fundamental interest, the prevention to threats to public order, breaches to security of persons and goods, fight against terrorism and investigations against penal offence”. With such a definition of public order and national security, France can oppose virtually any piece of European legislation.

The BVerfG was often dubbed, the Court that barks but does not bite. The French judges might well be judges who bite by stealth. Indeed, this legal precedent is potentially historical.

The glass half-full take of this event is that France is pushing through a legal challenge for a real leap in integration in internal security matters. This seems in line with the political strategy pursued by the French government in Brussels where it is currently lobbying to amend both the Charter and secondary EU law, possibly to create an equal protection for security matter at the EU level.

The glass half-empty view is that this challenge is effectively creating a precedent of opposition between national constitutional order and the Charter of Fundamental Rights, which is likely to have serious consequences across Europe and in particular in Poland, Hungary and elsewhere.

Germany’s Solange case used Germany’s Constitutional identity to establish a charter of fundamental rights in the EU and strengthen the kernel of the EU’s constitutional order. France’s Conseil d’Etat ruling might be the first step of its undoing. It might also be a turning point in a battle of the judges which has been fairly civil over the last 50 years has shaped the EU’s legal and political order. By openly challenging the EU’s legal order both in its form (the ruling), as well as in its substance (the Charter of Fundamental Rights), France might be doing both: paving the way for further weakening of the Rule of Law across the EU, and it might also pave the way for more challenges coming from France on other issues so much so that French Constitutional Lawyer Paul Cassia referred to the ruling as akin to a “Frexit”. Given the stakes, the European Commission will be key. In order to avoid setting a disastrous precedent, the European Commission could trigger an infringement against France. It might also consider it politically expedient to do so at the same time against Germany after the Karlsruhe PSPP ruling, demonstrating at this critical time that it won’t be impressed even by the biggest Member States and that it is prepared to meet force with force.


SUGGESTED CITATION  Vallée, Shahin; Genevoix, Gerard: A Securitarian Solange: France has launched a cluster bomb on the EU’s legal and political order, VerfBlog, 2021/4/25, https://verfassungsblog.de/a-securitarian-solange/, DOI: 10.17176/20210426-101431-0.

4 Comments

  1. Jacques Ziller Mo 26 Apr 2021 at 10:10 - Reply

    With all due respect I think your commentary is exaggerating the „confrontational“ aspect of the Conseil d’Etat’s decision. Neither the tone, nor the argumentation is in any way as confrontational as the BVerfG has been in the Gauweiler OMT referral and in the PSPP judgement of last years.

    The reasoning of the Conseil, leads it to annul some provisions of the decrees that were challenged – not all, indeed – and to send an injunction to the French Governement to further adapt them to the needs that follow from the CJEU’s judgement is, as I indicated in my own post, a further development of an already established jurisprudence for the cases where there is no equivalent protection of fundamental rights in the Charter or in general principles of EU law, a jurisprudence developped with Arcelor case n Case C-127/07. The reasoning of the Conseil recalls is indeed a kind of Solange, comparable to so many other controlimiti or other doctrines.

    The judgement cannot be read as challenging the EU legal order, contrary to the very strange position of the representative of the French Governemnt. Mind you, as far as I know, this kind of legal position is not discussed in the Council of Ministers…

    Indicating that „France might be doing both: paving the way for further weakening of the Rule of Law across the EU“ and „ave the way for more challenges coming from France on other issues“ is simply fantasy, totally contrary to both French policies and the way its supreme courts act. On 15 april, the Conseil d’Etat made a first preliminary reference for advisory opinion to the European Court of Human Rights: is this weakening the rule of Law? I prefer not to commento on Paul Cassia – whom I know since long – but for indicating that I totally reject his argumentation…

    There is a real debate in France as how to addr’ess the everlasting terrorist attacks by overexcited and sectarian individuals which have yet again resulted in killing an innocent woman who was simply working in a police office open to the public. As far as I’m concerned I am convinced that the Conseil d’Etat, the Cour de Cassation and the Conseil Constitutionnel are always looking for a balance between security and freedom which is very difficult to establish. They are currently doing the same with the pandemic. And I’m convinced in the same way that the CJEU is also doing its best keep the balance.

    Differently from the PSPP judgement which could have undermined the economic situation of many, if not all Member States, the Conseil d’Etat’s judgement has no systemic impact on the other Member States; it only allows for a longer retention of data in France. I admit this is not a legal, but a political argument.

    I agree with you that if the Commission were to start an infringement procedure against France it would be politically expedient in „demonstrating at this critical time that it won’t be impressed even by the biggest Member States and that it is prepared to meet force with force“. Mind you, the Commission already did this for a judgement of the Conseil d’Etat, with the procedure that led to Commission v France 4 October 2018, C-416/17. I have argued in a paper published in European Public Law Vol. 27 (2021) Issue 1it should do the same for the PSPP Judgement.

    • Shahin Mi 28 Apr 2021 at 19:00 - Reply

      Dear Jacques (if I may), thank you very much for your careful read and comments. I think you see the glass half full, where I see the glass half empty. But we should both agree on the very fact that the Conseil d’Etat, despite the injunctions made to the French Government to amend its decrees, allows the government to continue, in violation of the ECJ to collect personal connection data. The fact that the Conseil d’Etat is enabling such a violation after the ECJ has specifically clarified the illegal nature of these measures is worth calling out. I am pretty sure the Polish Constitutional Court, which was due to rule today on its own conflict with the ECJ will take cue from the decision of the Conseil d’Etat. They might even quote the decision in their own ruling… now due on May 13th…

  2. Lukas Küppers Mo 26 Apr 2021 at 15:05 - Reply

    Launching an infrigement action against Germany with regard to the PSPP judgment is a very difficult matter.
    It could result in BVerfG opposing the next treaty amendment. In its first referall to the CJEU, BVerfG argued that ultra-vires-review with regard to Art. 20(1) and (2) GG cannot be waived. Both provisions are coverd by the GGs eterntiy clause Art. 79 (3). In its jugdement on the European Banking Union, BVerfG confirmed that ultra-vires-review is rooted in Art. 79(3) GG. If the CJEUs holds ultra-vires-review to be contrary to EU law, BVerfG might stop the next treaty amendent. In the lisbon proceedings, the complainants argued that Declaration No. 17 regarding primacy (of EU law) precludes BVerfG from exercising ultra-vires-review. Karlsruhe rejected this argumend an viewed declaration No. 17 as an confirmation of its EU related case law. It will have difficulties making that statement again, if the CJEU finds ultra-vires-review to be in violation of EU law.
    So if an infrigement action is launchend, ultra-vires-review should not be made subject of it. Instead it should only focus on BVerfG not referring the case to the CJEU for a second time. If none of the litigants mentiones ultra-vires-review, there is no need for the CJEU to comment on its conformity with EU law. It could instead leave the matter to its advocate general.

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