Op-Ed: “The Portuguese Constitutional Court judgment 422/2020 – a ‘Solange’ moment?” by Rui Tavares Lanceiro
In a historic move, the Portuguese Constitutional Court (PCC) issued its first ever ruling on the relationship between EU law and the Constitution of the Portuguese Republic (CPR) last Monday. The PCC’s judgment 422/2020, recognising its lack of jurisdiction to review the constitutionality of EU law provisions (and the cases where that jurisdiction could resurface), was unanimous, with no concurring or dissenting opinions, which is unusual in a decision of this significance by this Court. In this judgment, the PCC was asked to decide on the constitutionality of an EU Regulation but declined jurisdiction to adjudicate that question. It is a lengthy, nuanced, and complex decision, showing that the Court was aware of its importance and wanted to issue what could be considered a landmark judgment in this subject. After the recent PSPP decision of the German Constitutional Court (BVerfG), the PCC must have also been aware of its context.
The background to the Judgment
The PCC’s decision was taken in the context of proceedings between a wine exporter, on the one hand, and the Fisheries and Agriculture Financing Institute (IFAP) and a bank, on the other hand, concerning the refusal to release a bank guarantee ensuring the repayment of an advance on an export refund. During the proceedings, preliminary questions were submitted to the Court of Justice of the EU (CJEU) by the Tribunal da Relação de Lisboa on the interpretation of Article 19(1)(a) of Commission Regulation 2220/85 and gave rise to both the Cruz & Companhia judgment (C-128/13) and order (C-152/15).
The wine exporter appealed to the PCC claiming that the EU rules violated the principle of equality enshrined in the Portuguese Constitution because other operators, not having asked for the refund to be advanced, were not obliged to provide security. A constitutionality review of a legal provision relevant in the main proceedings, takes the form of a ‘constitutionality appeal’ before the PCC, following the exhaustion of ordinary remedies.
This was the first time that the Court was asked to judge the compatibility of an EU Regulation with the CPR. The reason for this only happening 34 years after Portugal became a Member State is probably related to the strict nature of the formal requirements that must be met in this kind of ‘constitutionality appeal’.
Confronting the principle of primacy
The PCC begins by expressly recognising that this judgment will represent its participation in the debate over the relationship between the EU legal order and the Portuguese legal order. The Court presents the principle of primacy of EU law and explores its possible justifications, as well as the role played in its creation by the CJEU. It concludes that primacy is a ‘mechanism of effective projection of [the EU’s] global intentions when confronted with the [national] parceled reality’ – not to be mistaken with the principle of the supremacy present in federal legal orders. The reasoning also refers extensively to the judgments on this matter of the Italian Constitutional Court, mentioning the Frontini decision and the Taricco saga (and the dottrina dei controlimiti), as well as of the BVerfG, namely the Solange I and II, the Maastricht, and the Lisbon judgements.
After this introduction, the PCC analyses the application of the principle of primacy to the relationship between EU law rules and national Constitutions. After quoting the Lisbon judgment of the BVerfG, it states that ‘Although the EU has its own legal order, reflected in the fact that its rules lie outside of the chain of validity connected to a national Constitution, the material basis of that legal order is the decision of the Member States to agree on the joint exercise, in cooperation or by the institutions of the Union, of competences of which they are sovereign holders’.
Primacy and the Portuguese Constitution
In preparation for the abandoned Constitutional Treaty, the Portuguese Constitution was amended in 2004, with changes being made to Article 7(6) – which authorises the joint exercise of powers in the context of the EU – and the introduction of an express reference to the value of EU law in the Portuguese legal order (Article 8(4)). This provision expressly allows the application of EU law in the national legal order ‘in accordance with Union law and with respect for the fundamental principles of a democratic state based on the rule of law’. Thus, there is a constitutional basis for primacy in Portugal.
In its recent judgment, the PCC sees the framework of Article 8(4) (and Article 7(6)) as providing an ‘openness’ to EU law that was drawn by the constitutional legislator. This implies a limitation to the national system of constitutional review with EU law becoming ‘immune’ from control. The Court accepts that primacy means that the CJEU has exclusive jurisdiction over the validity of EU law and that the level of protection of fundamental rights in such a framework is functionally equivalent to that provided by the PCC.
This limitation of jurisdiction of the PCC is, however, conditional on the respect of specific ‘controlimiti’ or ‘limitations of the limitation’. It is for the EU law to define the terms in which it is applicable in Portugal, ‘to the extent that such application is not in conflict with the fundamental principles of the democratic rule of law, or going beyond the agreement on the joint exercise (…) of the powers necessary for the construction and deepening of the EU’. That would be the case when the constitutional identity of the Republic is at stake or in face of ‘constitutional commitments’ that, due to their ‘essentiality or particularity, can only be effectively guaranteed by the guardian of the Constitution’. Examples: the national territory (Article 5), or the unitary state (Article 6). In these cases, the CJEU cannot ensure a protection that is functionally equivalent to the one provided by the PCC.
The disrespect of these limits ‘re-establishes’ the jurisdiction of the PCC, based in its Kompetenz–Kompetenz – the competence to determine what falls within its jurisdiction, while interpreting the Constitution, in this case, Article 8(4). This provision, therefore, is considered to: (i) exempt EU law from the need to comply with the Constitution and from constitutional review; but also (ii) limit this exemption in cases of incompatibility with a ‘fundamental principle of the democratic rule of law’. That is only considered possible when such principle does not enjoy a ‘materially parametric value [in the EU legal order] equivalent to that recognised in the Constitution’, namely because it is part of ‘the constitutional identity of the Republic’. If such an equivalence exists, the PCC will decline to review the constitutionality of the EU provision. Only if an appellant demonstrates this lack of equivalent protection, will the PCC agree to review such a case.
Rui Tavares Lanceiro is an Assistant Professor at the University of Lisbon Law School, having recently published his PhD thesis. He is researcher of the Lisbon Centre for Research in Public Law (CIDP) and advisor to the Portuguese Constitutional Court.