Just a few days before the attorney general of the EU makes public his conclusions on the adaptation of the Amnesty Law to community law, the judge of the Constitutional Court (TC) José María Macías has once again demonstrated his objections to the actions of the court of guarantees chaired by Cándido Conde-Pumpido by endorsing the controversial norm – with four votes against – without first seeking the opinion of the Court of Justice of the European Union (CJEU) or without wait at least for Luxembourg to resolve the preliminary questions raised by four Spanish courts, including the National Court and the Court of Auditors, in relation to the fit of the Amnesty Law into Union Law.
Macías, who was removed from the deliberations and decision-making in this regard for having signed a report against the law as a member of the General Council of the Judiciary (CGPJ), considers that the TC “is not a friendly court either with the Law of the European Union or with the European preliminary ruling question or with the CJEU” and even points to a “constitutional arrogance” in its way of approaching its relationship with the CJEU. This is what he explains in his recently published book “The Constitutional Court facing the European challenge” (Colex).
The Constitutional magistrate questions especially in his work that the TC justified its refusal to raise a preliminary ruling before the CJEU, leaving its decision suspended (as the conservative magistrates unsuccessfully requested), arguing that the amnesty for the leaders of the independence process in Catalonia “is closely related to underlying political issues, rooted in the History of our country and related to the territorial structure of the State and the integration of our nationalities and regions.” The TC put these issues on the table, which “are eminently national.”
The “Spanish singularity”
Macías does not share “the allusion made to Spanish uniqueness as a justification for a particular understanding of the rule of law that excludes the need to clarify that concept from a European perspective.” And, he emphasizes, the ruling that endorsed the Amnesty Law alludes to this supposed Spanish uniqueness “which could justify interpretations of the requirements of the Rule of Law that are different from those of the rest of Europe and which therefore would not be accessible to the CJEU.”
“Is it maintained as a doctrine of the TC that in Spain there are political issues so “rooted in its History” that they make the notion of the Rule of Law its own and unique?” he asks before warning that this interpretation means that the concept of the Rule of Law enunciated in Article 2 of the EU Treaty may be in our country “different, inferior or of lesser content and quality.” “Is this what can justify disregarding the interpretation of Article 2 carried out by the CJEU?” asks Macías, who wonders if this argument implies a “covert application” (without raising a preliminary question) of the national identity safeguard clause of Article 4 of the Treaty of the Union” (which determines that the EU will respect the “national identity” of the Member States).
Throughout the book, the former CGPJ member points out the TC for “attributing mere interpretative value to the jurisprudence of the CJEU.” And I know that he defends that “the consequences of the primacy (of community law) are not applied to the full extent that should result from the jurisprudence of the CJEU.”
In fact, he warns of a “double standard” in the jurisprudence of the TC when it comes to omitting a question of unconstitutionality or a prejudicial question “depending on whether it results in the application or non-application of a national law.” That is to say, for Macías in the actions of the Constitutional Court there is a “notable disparity” in terms of the scope of this primacy of community law “when it refers to ordinary judges and courts than when it refers to the TC itself”, in view of what happened in the case of the amnesty.
“Tension the principle of primacy”
Macías alludes to the “concern” expressed in the dissenting votes of the judges who opposed the ruling of the Amnesty Law and recalls that some of them warn that the court chaired by Conde-Pumpido “has placed itself, and has placed Spain, outside the European judicial system.” Some dissident opinions that, he emphasizes, “are strong enough to impose a reflection on where the TC is going.” An issue that, as he points out, must be addressed “peremptorily.”
“This is not precisely – he underlines in his reflection – the most appropriate moment to stress the principle of primacy and for this tension to serve as an excuse or alibi to justify the resistance of some Member States to abide, to the fullest extent, values that constitute the foundation of the Union.” Like those of the rule of law, division of powers and judicial independence, remember.
Otherwise, he argues, “there is a risk that what the CJEU built will be destroyed, or at least diluted, by the national courts, opposing the principle of primacy” a kind of “inverted primacy” (in the words of magistrate Alessandro Bernardi) that according to his criteria “is incompatible with the subsistence of the Union.”
Macías aligns himself with the magistrate of the Italian Constitutional Court Giovanni Pitruzzella in arguing that when it comes to addressing who should define the limits – the CJEU or the constitutional courts of each country – between the obligatory respect for the values of the Rule of Law proclaimed by the EU Treaty and that which the Union owes to the “national identity” of each Member State, “it cannot be reduced to a conflict of power between courts.”
Respect for the principle of equality
As the Italian magistrate highlighted at the Conference of Constitutional Courts held in Spain in September of last year, Macías recalls, this fact “affects the functioning of European integration and constitutional democracy.”
This “conflict”, in any case, “cannot be accepted” – Pitruzzella warned and Macías also defends – if “its basis is none other than that of a possible constitutional arrogance”, which the TC magistrate also judges “undesirable”, of the constitutional courts of each State.
Macías also agrees with the president of the CJEU, Koen Lenaerts, in arguing that the principle of primacy of Union Law “not only constitutes a fundamental structural requirement of the EU Law system and a technical resource to resolve dissonances that arise between two systems, but it is also a requirement derived from respect for the principle of equality of the Member States before the Treaties.”
Hence, the TC magistrate warns, “the unilateral actions” of a State and, also, “of its courts that impose their national provisions above the interpretation of Union Law” established by the CJEU, “even omitting the necessary dialogue” with the court of Luxembourg (as he understands that the Conde-Pumpido TC has done), represent “a lack of respect for the States that comply with the constitutive treaties on the basis of reciprocity.”