Taxonomy of competence conflicts

Conflicts of competences arise in multiple forms. Their discussion can be facilitated if these forms are distinguished by means of the following taxonomy. First, conflicts of competences can be interpreted as possessing either a political or a legal nature. If interpreted in the political sense competence conflicts are representing the brute facts of colliding claims to power and address the question of the correct political handling of these claims. Consequently solutions are searched for in the political sphere, like simply enforcing one’s claim to competences or negotiating compromise. Pointing towards the informal dialogue of judges^{Footnote 18} or appealing to judicial self-restraint ultimately also supposes a political nature of the conflict since both are referred to as empirical facts and as being dependent upon the professional ethics of the judges. The common core of political approaches is the assumption that the solution to conflicts of competences is not to be found in legal norms. In sharp contrast to these approaches this article interprets conflicts of competences as a legal problem which has to be solved by employing legal rather than political or ethical means.

Second, competence conflicts can be classified as either logical or functional. A conflict is functional if divergent normative positions lead to teleological tensions, without the necessity of deontic contradiction.^{Footnote 19} A conflict is logical, in contrast, if the colliding competences amount to deontic antinomy.^{Footnote 20} The functional concept of conflict exhibits the weakness of blurring the line between political and legal conflicts. I will hence employ the logical concept of a conflict here.

Third, conflicts of competence must not be confused with material conflicts. Material conflicts consist of contradicting substantial decisions. They occur, for example, if different courts interpret the same legal norm differently. In contrast, formal conflicts concern colliding abilities to make substantial decisions. Conflicts of competence are formal conflicts. There are, however, connections between material and formal conflicts. On the one hand, any material decision is not only a decision about the substantial matter in question. At the same time, it is also a decision on the assignment of competences. This can be seen in the case of judicial review. A constitutional court delivering a judgment on a statute which violates fundamental rights does not only settle that substantial issue, but also decides upon the delineation between its own competence to exercise judicial control and the competence of the democratically elected legislature to decide.^{Footnote 21} To put this point more generally: Any decision upon a substantial matters entails an implicit claim that the authority has the relevant competence. On the other hand, material conflicts may arise if colliding competences are exercised in such a way that they result in substantial conflict. This is not necessarily so: If two authorities claim a specific competence, there is formal conflict, but if they deliver identical material decisions upon the same matter or if one of the authorities chooses not to act upon its competence at all, then no material conflict arises. If, in contrast, they deliver divergent material decisions, then a material conflict arises over and above the formal conflict. Competences establish a possible Ought (dispositivity) which is only be transformed to a definite Ought if the competence is acted upon (declarativity). This institutional act can thus figure as a bridge between formal and material conflicts. We may hence characterize material conflicts as a form of outbreak of formal conflicts.

Fourth, conflicts of competence can either be actual or potential. This differentiation follows from the definitional element of dispositivity. Since the very concept of a competence draws to the legally established possibility to change the normative situation, having a competence is not automatically tantamount to acting upon it. Rather, the competence holder is free whether she will act upon the competence. As long as one of the competence holders does not act upon her competence, the conflict of competences is merely potential. Only when she issues the institutional act the conflict may become actual.

Fifth, conflicts of competence can either be abstract or concrete. An abstract conflict is independent of any concrete circumstances of specific cases. The relation between the competences of two authorities is then discussed without regard to any cases. A concrete conflict, in contrast, is dependent upon specific circumstances. I shall employ the concrete concept in this article.

In sum, I will analyse a specific concept of conflicts of competences which interprets these conflicts as having a legal, logical, formal, actual and concrete nature. One of the most imminent examples for a conflict with these five characteristics is the contested protection of fundamental rights in the so-called Bermuda Triangle of courts in the European Union.

The Bermuda Triangle of rights protection in the European Union

The process of European integration is a process of an expansion of fundamental rights protection. The growing constitutionalization of the EU legal order has significantly strengthened the relevance of fundamental rights within the EU legal order, given that the role of human rights is characterized by processes of optimization, activity and ubiquity.^{Footnote 22} An important promoter of this increased relevance is the inherent connection between fundamental rights and the proportionality test.^{Footnote 23} The current multilevel system of rights protection in the EU comprises national fundamental rights, the Charter rights, the European Convention and the market freedoms.

These overlapping protection layers can bring about ‘multiple points of access’ to rights protection for the individuals and ‘healthy competition’ among the different authorities.^{Footnote 24} However, the disintegrated coexistence of ‘multiplicities and divergences’ causes also severe disadvantages.^{Footnote 25} These disadvantages can be classified as either material or formal conflicts.^{Footnote 26} Material conflicts arise when two legal orders profess to protect the same right, but interpret this right differently or strike different balances when it comes to a collision with competing values.^{Footnote 27} In that respect, an overabundance of fundamental rights protection can attain ‘Kafkian complexity’.^{Footnote 28} Formal conflicts, in contrast, arise between the respective competences of the courts involved. In particular, the delineation of the competences of the ECJ, the ECtHR and national constitutional courts is a matter of concern.

Formal conflicts endanger the rule of law, legal certainty and the coherence and effectiveness of fundamental rights protection. Judges playing ping-pong may cause effective rights protection to disappear in a Bermuda Triangle of courts. The ECJ has long established the clear and straightforward position that it is the sole and final arbiter on EU law.^{Footnote 29} This claim to an exclusive competence follows from a legal monism that establishes the strict and absolute supremacy of EU law over any Member State’s law in order to ensure the uniform application of the EU’s legal order and, ultimately, the rule of law in the supranational sphere.^{Footnote 30}

The ECJ’s competence to constitutional review is contested, however, by a number of national constitutional courts, including the FCC.^{Footnote 31} On the basis of a democratic statism accentuating statehood, sovereignty and democratic self-government, the FCC has put forward quite an array of concerns oscillating between an affable position towards the EU and a position emphasizing national sovereignty.^{Footnote 32} These concerns regard the protection of national fundamental rights, the protection against EU legal acts which are ultra vires and the protection of the identity of the national constitution.^{Footnote 33}

The details and variations of this development do not interest here. It suffices to note the conflict between the two courts’ competences. In order to pinpoint the conflict of competences between the ECJ and the FCC as clearly as possible, I would like to reconstruct it with the help of the notion of preference relations. If we note K _l for the ECJ’s competence, K _m for the FCC’s competence and P for preference, the competence claim raised by the ECJ can be put like this:^{Footnote 34}

Figure 1. Preference Relation according to the ECJ

Figure 1 reads: The ECJ’s competence has preference over the FCC’s competence. From the perspective of the FCC, however, the picture is different: The preference of the ECJ’s competence is dependent upon certain circumstances, namely the EU legal order providing sufficient protection of both fundamental rights and the identity of national constitutions and the EU legal act not being ultra vires. In order to acknowledge this dependency on circumstances, we can add the variable C ₁:

Figure 2. Preference Relation according to the FCC

It is important to note that, if the circumstances were different, the preference relation may well be the other way round, according to the FCC. This is the case, e.g., if the EU legal order would not protect fundamental rights in an appropriate way anymore, a situation that can be described as circumstances C ₂:

Figure 3. Preference Relation according to the FCC (reversed)

In Figure 3 the FCC’s competence has preference over the ECJ’s competence. A comparison of all three Figures allows for three important insights. First, there is a clear contradiction between Figure 3 (preference of K _m) and Figure 1 (preference of K _l), demonstrating the conflict between the ECJ’s and the FCC’s competences. Second, there is an important difference between Figure 1, representing the view of the EJC, on the one hand, and Figures 2 and 3, representing the view of the FCC, on the other. Figure 1 is an unconditional preference relation, signalling an unconditional supremacy of the ECJ: K _l has always preference over K _m. In contrast, Figures 2 and 3 are conditional preference relations, making the preference of either of the competences dependent upon certain circumstances. Third, we can note that the difference between Figures 2 and 3 pictures precisely the change between Solange I and Solange II. In Figure 2, representing Solange II, the preference of the ECJ’s competence K _l is justified by and dependent upon the ECJ guaranteeing the protection of fundamental rights to a degree essentially equivalent to the level of protection prescribed by the German Constitution.^{Footnote 35} Hence the FCC suspends its own competence K _m for the time being. This is not equivalent to the situation in Figure 1, since the FCC only refrains from exercising its competence on a case-by-case basis.^{Footnote 36} In Figure 3, which in contrast represents Solange I, the preference of the FCC’s competence K _m is justified by and dependent upon the absence of an appropriate protection of fundamental rights in EU law.

Why political solutions are insufficient from the perspective of the law

Given the serious difficulties in coming to terms with conflicts of competences, political solutions enjoy an enormous popularity. The view that conflicts of competences need to be resolved politically has been labelled as the ‘no legal issue thesis’ by Kumm.^{Footnote 37} Legal scholarship encourages political solutions by pointing to radical pluralism.^{Footnote 38} Radical pluralists salute the resolution of competence conflicts on the basis of politics rather than law.^{Footnote 39} Krisch even resigns from advancing any solution ‘[b]y leaving questions of fundamental norms and ultimate authority undecided’.^{Footnote 40} Political solutions ask the judges to cooperate in a friendly, harmonic, strategically clever, mutually respectful manner. The informal dialogue of judges is supposed to be supportive in that respect.^{Footnote 41} The overall aim is to exercise colliding competences in ‘judicial comity’.^{Footnote 42} However, these solutions ultimately delegate the solution of competence conflicts to the personality and cooperative attitude of individual judges. Political solutions depend on the mere empirical fact of ‘voluntary’ and ‘spontaneous’ practices.^{Footnote 43} The political character of these solutions becomes very clear when they are labelled ‘supranational judicial diplomacy’.^{Footnote 44} Irrespective of whether these political solutions are accurate as an empirical description of legal reality, law is a primarily normatively oriented discipline and must therefore endeavour to provide guidance and legitimacy on the basis of normative criteria.^{Footnote 45} All models which delegate the solution of competence conflicts to personal cooperative attitudes and voluntariness ultimately leave the solution to chance. Cooperation and judicial self-restraint may be relevant from the observer’s perspective, but they do not provide guidance for the normatively structured participant’s perspective.^{Footnote 46} Judicial comity and judicial dialogue belong to the extralegal, factual dimension of motives and power-preserving strategies, rather than to the dimension of legal reasons.^{Footnote 47} All in all, political approaches ‘too hastily’ give up ‘on what law, and constitutional law in particular, is all about: legal certainty and the legal constraint of power’.^{Footnote 48}

Strict legal solutions

Legal solutions are distinguished from political solutions by raising a claim for legal correctness, rather than a claim to political adequateness.^{Footnote 49} Legal solutions have two subtypes, namely strict and flexible approaches. The strict approach solves conflicts of competences by referring to strict legal hierarchy in Kelsen’s sense. Strict legal solutions establish clear orders of precedence between the colliding legal systems and the competences of its authorities.^{Footnote 50} Strict legal approaches solve competence conflicts by giving either the one or the other competence absolute, unconditional precedence. Such solutions to competence conflicts are well established in the constitutional order within a state, e.g. in the different appeal stages of the judiciary. They are also sought after for conflicts beyond the state. The ECJ’s position on the unconditional supremacy of EU Law over any Member State’s law is a strict legal solution.^{Footnote 51} The same is true of the diametrical opposite which calls for an absolute precedence of the respective national constitutional court.^{Footnote 52} Both positions share the same premise, namely that supremacy must be strict, hierarchical and unconditional.^{Footnote 53} Suggestions to establish a special competence court to resolve the conflicts also rely on a strict legal solution, in this instance a procedural one.^{Footnote 54}

A serious weakness with strict legal solutions, however, is that they aim at ‘mutual exclusion rather that the coordinated coexistence’ of different legal orders and judiciary actors.^{Footnote 55} Yet the main task in the multilevel system of European fundamental rights protection is coordination, not subordination. Strict legal solutions fall short of the plurality of constitutions in the multilevel system. The major drawback of strict legal solutions is that they cannot account for the coexistence and validity of more than one Grundnorm in the European Union.^{Footnote 56} As a matter of principle strict legal solutions are incapable of giving resilient answers to competence conflicts between entangled legal systems. In the competition of competences they necessarily and completely blind out one of the competitors. I conclude that strict legal approaches do not help to solve the conflict of competences in the multilevel system of European Fundamental rights protection.^{Footnote 57}

Tertium datur: Flexible legal solutions

The inadequacy of strict legal solutions tempts many legal scholars to turn to politics. The serious weakness with this approach is that it rests on the mistaken premise that the abandonment of strict hierarchies would inevitably lead into the domain of the political. Thereby it overlooks the possibility of a third option, lying in between the Scylla of strict legal solutions and the Charybdis of political solutions. This third option the model defended here belongs to, a model of flexible legal solutions.^{Footnote 58} Scholars often overlook this third option.^{Footnote 59} Weiler and Haltern, e.g., represent the problem as if the alternative were purely between having ‘a conversation’ of many actors or a ‘hierarchical structure with the ECJ at the top’.^{Footnote 60} The former alternative is political, while the latter is strictly legal in character.

As for the character of flexible legal solutions, I would like to stress three points: First, it provides truly an effective solution of competence conflicts. This is relevant because the idea of having various degrees of competence may lead to the objection that it was hard to see how an institution or a legal order could be competent to a certain degree only, e.g., ‘three-quarters competent’. In the end of a balancing procedure a preference relation between the colliding competences is established, allowing for a clear judgment as to which competence prevails in the circumstances of the case. The outcome is a full competence, not just a fraction of a competence. Thus it truly settles the matter as far as this case is concerned, rather than stepping down to sceptical pluralism’s quietism. Flexible legal solutions thereby avoid the unappealing self-resignation of constitutional law theory in regard to transnational phenomena à la Krisch.^{Footnote 61}

Second, the solution is legal rather than political. It applies legal principles. The possibility of anchoring a flexible solution within the law is often overlooked. Von Bogdandy, for example, claims that the relation between the EU legal order and Member States’ constitutional law was ‘unregulated’.^{Footnote 62} Likewise, Jestaedt has put forward the claim that in a situation of collision between various legal systems, a choice is necessary between different instances of a Grundnorm which can ‘neither be justified nor criticized on normative grounds’.^{Footnote 63} Contrary to von Bogdandy I argue that the relation is indeed legally regulated, however, not by legal rules, but by legal principles. In contrast to Jestaedt I would like to submit that a choice between different instances of a Grundnorm may be legal in character, if legal reasons are applied to justify this choice.

Third, the solution defended here is flexible rather than strict. It is flexible because the preference relation between the colliding competences will always be relative to the legal and factual circumstances of the case at hand. This is similar to the dynamic institutional balance among the authorities of the EU which is also dependent upon the particular procedure and may also shift over time.^{Footnote 64} From the perspective of EU constitutional law the most important consequence of a flexible legal solution is that it enables us to separate primacy and supremacy as two distinct categories of relation between levels of the law.

The separation of primacy and supremacy

The possibility of separating primacy and supremacy is often neglected. Jestaedt claims that ‘a precedence of EU law cannot be verified legal-theoretically without accepting a hierarchy’.^{Footnote 65} Krisch also assumes that ‘normative authority flows exclusively from hierarchy’.^{Footnote 66} However, a precedence relation between competences is well possible without implying a monolithic structure.^{Footnote 67} The Spanish Constitutional Court has lucidly argued that due to the distinction between supremacía (supremacy/highest rank) and primacía (precedence/primacy) a precedence of EU law is not in contradiction to the supremacy of Member States’ law:

My own model well matches this account. It allows for conditional preference relations between the colliding competences which establish a primacy without depending upon a higher rank of the competence that enjoys precedence. Thus, contrary to Jestaedt, precedence without strict hierarchy is possible, namely in the form of a soft, flexible hierarchy based on conditional precedence. GA Cruz Villalón has also argued in this direction:

The idea of institutional practical concordance

Getting colliding competences into balance is equivalent to achieving a status of institutional practical concordance.^{Footnote 70} Neither competence is denied validity or abolished completely, but both of them must recede as much as is necessary to realize a certain degree of the other competence respectively.^{Footnote 71} This idea is equivalent to what the ECJ has established in regard to the relation between the various authorities within the EU, namely the principle of institutional balance: ‘Observance of the institutional balance means that each of the institutions must exercise its powers with due regard for the powers of the other institutions.’^{Footnote 72} It is submitted that the same idea is relevant to the relation between the EU and the Member States.^{Footnote 73} In result, a conditional preference relation between the various layers of sovereignty is established.^{Footnote 74} Contrary to the ECJ’s opinion, the supremacy of EU law is not to be constructed as a formal superiority. Rather, it is ‘created by deference to Union law’s claim to supremacy whose extent has to be determined by balancing’.^{Footnote 75}

The main advantage of institutional practical concordance is that it allows for overcoming the aporia of understanding legal authority as binary-coded by establishing different degrees of sovereignty. This is very much resembling what Glenn has insinuated under the label of ‘institutional cosmopolitanism’.^{Footnote 76} Until now this idea has not been sufficiently explored in the literature. Only few researchers have followed this route. Von der Groeben has claimed that any solution ‘must provide for a balancing of the competing sovereignty claims between the European Union and the Members States’.^{Footnote 77} It is Mattias Kumm’s achievement to have advanced the idea of an optimization model of competence to the utmost degree to date.^{Footnote 78} It allows for the unity of the multilevel system in spite of the plurality of constitutional layers without relying on the existence of only one Grundnorm.^{Footnote 79} Notwithstanding the idea of balancing competences is already present in the literature, the details of how institutional practical concordance is to be established are missing to date. It is the main aim of the present article to provide further insights in that respect.

Conflicts of competences as conflicts of formal principles

Conflicts of competences can be constructed as conflicts of rules or as conflicts of principles. The difference between the two options lies in the solution of the conflicts.^{Footnote 80} Rule conflicts are solved by either reading an exception clause into one of the rules, or by declaring one of the rules invalid. In contrast, conflicts of principles are solved by means of balancing. Balancing results in a conditional preference relation between the colliding principles which realizes each of them optimally, given the legal and factual circumstances in a concrete context.^{Footnote 81}

Competences can only be submitted to a balancing procedure if they are reconstructed as principles. It is submitted that competences are a specific kind of principles, namely formal principles, as opposed to material principles.^{Footnote 82} Both kinds of principles must be strictly separated.^{Footnote 83} Material principles, e.g., human rights or the principle of the social welfare state, directly establish substantive legal content. In contrast, formal principles establish who is in charge of deciding upon substantive legal content. Democracy, for example, is a formal principle since it establishes the competence of the democratically elected legislature to decide upon the most important normative issues of society. Formal principles depict the authoritative dimension of certain legal decisions within a legal system.^{Footnote 84}

Some scholars think that formal principles do not have any content unless the material decision is made by the competent authority, and when such decision is made, then that material content figures as the content of the formal principle.^{Footnote 85} In sharp contrast to that view, the present article argues formal principles require that the competence granted must be optimized. This precisely is their content. The object of optimization is the authoritative power to establish material content. In the constitutional state, for example, the constitution requires to realize as much unfettered freedom of the legislature as possible. This entails the competence of the legislature to restrict human rights in order to protect other important values and interests. At the same time constitutional states often establish a control competence of a constitutional court, exercising judicial review in the light of human rights.^{Footnote 86} Again, the constitution prescribes to optimize this control competence as much as possible. Both the legislature’s competence to decide and the court’s competence to constitutional review must prima facie be realized to the greatest extent possible. However, they pull into different directions. Only a balancing procedure can establish the definite degree of realization of both formal principles.

Understanding competences as (formal) principles rather than rules allows for establishing a variability of competence, a ‘sliding scale of competence’.^{Footnote 87} Legal authority admits of degrees.^{Footnote 88} This variability of competences qua formal principles is of the utmost importance in reconstructing transnational scenarios and multilevel systems like the European Union. The question is therefore not, whether the ECJ should always have the ultimate say or, alternatively, this is the task of the Member State court. The problem of European constitutionalism is not a matter of either/or, but a matter of degree. Any decision by the ECJ or by a national constitutional court is not only a material decision on which rights citizens enjoy, but also necessarily an (often implicit) decision on the distribution of competences between the EU and the Member State.^{Footnote 89} Both the ECJ and the Member State courts engage in rational discourses. There is a competition of these discourses, and formal principles are the key to determine whether the ECJ or the Member State court shall decide the issue.

Balancing competences

The structure of balancing follows from Alexy’s law of balancing, which reads: ‘The greater the degree of non-satisfaction of, or detriment to, one principle, the greater must be the importance of satisfying the other.’^{Footnote 90} Originally this law of balancing was meant by Alexy to cover the balancing of material principles. I would like to submit that it is also applicable to the balancing of formal principles, i.e. competences. According to this law of balancing, the balancing of competences consists of three steps.^{Footnote 91} The first step consists in establishing the degree of non-satisfaction to a first competence. In the second step, the importance of satisfying the competing competence is established. Finally, in the third step it is established whether the importance of satisfying the latter competence justifies the non-satisfaction of the former. These three steps operationalize the idea of practical concordance of competences.

As a heuristic instrument a triadic scale may be employed to determine the concrete weight of a competence. This scale consists of the stages light, moderate and serious.^{Footnote 92} The weight of a Member State’s constitutional court’s competence to decide, in a given case, could be light, moderate, or serious, depending on the circumstances. Conversely the ECJ’s competence to decide could also be light, moderate, or serious. Depending on which values are assigned to the colliding competences, the third step of balancing will then establish a preference of either of the two competences.^{Footnote 93} For example, a competence with a serious weight prevails over a colliding competence with a moderate or light weight.

The law of balancing determines the internal structure of balancing competences. Any solution to a conflict of competences that follows this internal structure is internally justified.^{Footnote 94} This, however, does not settle the issue. It is decisive to justify the evaluation of the weights of the competences. This is the task of the so-called external justification. It must be done with regard to the specific circumstances of a concrete case because formal principles ‘can adopt different weights in different situations’.^{Footnote 95} External justification depends on arguments external to the balancing itself, regarding the concrete weight of an interference with a competence. External justification is the linking bridge between balancing as a distinct legal method and the general theory of legal argumentation.^{Footnote 96}

In order to shed more light on the external justification, we may consider a variety of factors that can be employed to determine the concrete weight of a competence.^{Footnote 97} Following the principle of universalizability as a fundamental principle of discourse theory, these factors adopt the form of weighting rules.^{Footnote 98} A first factor that influences the weight of the competence of a certain authority is the democratic legitimacy of that authority.^{Footnote 99} The higher the democratic legitimacy of a competence is, the more important this competence is. Democratic legitimacy admits of degrees.^{Footnote 100} In the UK the democratic legitimacy of Parliament is used to pay ‘greater deference to an Act of Parliament than to a decision of the executive or subordinate measure’.^{Footnote 101} Kumm has used this factor to justify a control competence of the national courts over EU Law, ‘given the persistence of the democratic deficit on the European level’.^{Footnote 102} This factor is also present in the ECtHR’s practice of determining the scope of the margin of appreciation.^{Footnote 103}

A second factor is the significance of the material principles at stake. The more intensely a decision interferes with a material principle, e.g., a human right or a collective good, the less important is the authority’s competence to decide autonomously and the greater the weight to be accorded to a court’s competence to control that decision.^{Footnote 104} If material principles are not affected at all, the importance of the competence of the primary decision-maker is very high and the importance of the competence of judicial review is quite low.^{Footnote 105} The factor of material principles is used by the ECtHR to determine the scope of the margin of appreciation:

A third factor that influences the weight of the competence of the primary decision-maker is the quality of the decision. The better the quality of the primary decision, the more weight is to be assigned to the competence of the decision maker and the more serious is any interference with that competence by means of judicial review.^{Footnote 107} For example, the quality of parliamentary engagement with the human rights issue is used as a ‘deference-increasing factor’ by the United Kingdom courts.^{Footnote 108} The quality of the primary decision can be assessed by evaluating the arguments given for its justification. The more extensive and convincing those arguments are, the better is the quality of the decision. It also matters whether the primary decision-maker has special expertise relevant to the issue. Special expertise presumptively strengthens the weight of the competence to decide. This factor is familiar from US federalism.^{Footnote 109} Lastly, the quality and effectiveness of the particular legal system as a whole may also influence the assessment of the quality of the primary decision. The better the performance of the legal system in general is, the more weight is to be assigned to the primary decision-maker. Clear procedural rules and consistency of political aim-setting, for example, can be indicative here. Conversely, if the legal system displays a great extent of legislative or administrative dysfunction, the weight of an international court’s competence to control is strengthened.

The last factor that shall be considered here is subsidiarity. The more a certain authority is protected by the principle of subsidiarity, the more weight is to be assigned to its competence and the more serious any infringement with that competence is. This factor protects the Member States against usurpation of power by EU institutions.^{Footnote 110} It is also present in ECHR law.^{Footnote 111} An aspect indicating a greater protection by the principle of subsidiarity is a situation where one of the colliding authorities is closer to the issue of the case as far as time, location, or the facts are concerned.^{Footnote 112} The principle of subsidiarity is weakened, in contrast, if homogenization or coordination requires a more centralized approach.^{Footnote 113}

It is a vital aspect of the balancing approach that none of these factors is determinative per se.^{Footnote 114} Rather, all relevant factors have to be considered.^{Footnote 115} Balancing competences is therefore a quite complex endeavour.^{Footnote 116}

The objection from Kompetenz-Kompetenz

It may be objected to the model proposed here that it leaves the decisive question in the open, namely who is competent to balance competences. This is the issue of Kompetenz-Kompetenz. A Kompetenz-Kompetenz is an instance of a competence, since it can be defined as the normatively established ability to create a competence norm or to change the legal situation with regard to a competence by means of an institutional act. It is thus a second-order competence. Since the Kompetenz-Kompetenz is a competence it follows that the model of balancing competences could also be used for determining who is competent to balance competences. This, however, would only take the problem one level higher and seems to lead to an infinite regress problem.

I would like to stress that the model of balancing competences is not designed to resolve the issue of Kompetenz-Kompetenz in the first place. Rather, its main point is to demonstrate how legal discourses on competence conflicts can and should be framed. It provides a solution to the problem of what kinds of arguments have to be used in order to justify, challenge, or defend a claim to competence inherent in an official legal proposition. All legal authorities are bound to justify their own competence vis-à-vis any colliding competences. Brandom’s game of giving and asking for reasons and Alexy’s discourse-theoretical theory of legal argumentation provide the background here.^{Footnote 117} In this sense, the objection from Kompetenz-Kompetenz misses the point of the present article.

Furthermore, solving competence conflicts by pointing to a second-order Kompetenz-Kompetenz in a way would reintroduce the strict hierarchical model by the back door. Balancing competences, in contrast, is anchored in the flexible legal model. As for the specific example discussed below, namely the competence conflicts between the EU and Member States, Avbelj has lucidly demonstrated that the challenge is to regulate ‘the relationship between the autonomous legal orders, ie between the two sovereign levels in European integration’, precisely because there is no hierarchy between the legal orders’.^{Footnote 118} There is no overarching Kompetenz-Kompetenz in the pluralist European legal setting. Rather, each authority is ultimately supreme within its own legal order. The present article seeks to provide remedy to this situation by spelling out the details of the argumentative exercise capable of solving competence conflicts notwithstanding a Kompetenz-Kompetenz is lacking.

Fundamental rights protection and the Solange method

The balancing approach matches perfectly with the Solange method. This is not only true in respect to the balancing results, namely case-sensitive, conditional preference relations between the control competences of the ECJ and the FCC. The so-long-as terminology clearly indicates the dependency on the circumstances of the case. It is also true in respect to the argumentative justification of those preference relations. In Solange I the circumstances of the case were such that the EU had not developed a protection of rights equivalent to the protection under the German constitution. Hence, the factor of material principles strongly supported the control competence of the FCC.^{Footnote 121} Due to the lack of adequate rights protection in the EU legal order, the consequences for the protection of material principles would have been very serious if the control competence of the FCC had been denied. At the same time the control competence of the ECJ is weakened by the factor of material principles because the consequences for rights protection which result from denying the ECJ any preference are negligible if the EU does not provide a substantial rights protection anyway. In Solange II the circumstances had changed considerably since the EU standard of fundamental rights had by then ‘been formulated in content, consolidated and adequately guaranteed’.^{Footnote 122} Therefore the factor of material principles at that time operated exactly the other way round: The weight of the ECJ’s competence is strengthened, while the FCC’s competence is not strengthened any more.^{Footnote 123} As for the other factors, it is worth noting that in Solange I the FCC used also the factor of democratic legitimacy to underline the weight of its own competence.^{Footnote 124} Furthermore, the FCC in Solange II uses the factor of the quality of the ECJ’s jurisdiction as far as rights protection is concerned to emphasize the higher weight of the ECJ’s competence.^{Footnote 125} All in all, these considerations justify an evaluation of the FCC’s competence as high and an evaluation of the ECJ’s competence as moderate in Solange I as well as an evaluation of the FCC’s competence as moderate and an evaluation of the ECJ’s competence as high in Solange II. Thus, the preference relation between the colliding competences is dependent upon the ‘present state of integration of the Community’.^{Footnote 126} The dynamics which follow from this dependency can be very well reconstructed in the balancing model.

Banana Market

Building upon the Solange II jurisdiction the FCC introduced a general standard of review in its Banana Market decision in 2000:

In consequence, the Solange II criterion (whether the EU provides adequate rights protection) is not to be evaluated with regard to the specific case at issue, but by means of a general comparison of abstract protection standards at the national and the supranational level.

This decision is referred to by the current FCC president as the ‘procedural solution’.^{Footnote 128} This is a false labelling, downplaying the decision’s relevance. The solution is procedural only insofar the FCC declares constitutional complaints inadmissible from the outset if their grounds do not state that the evolution of EU law generally has declined below the required standard of fundamental rights. However, the relevance of the judgment does not end with stating new requirements of admissibility. Rather, in substance the judgment alters the criterion for deciding upon the merits of the complaint and this criterion merely acts forwards upon the admissibility as well. Commentators agree that the barrier of admissibility erected by the general standard in Banana Market is so high that it is extremely unlikely that any complaint will ever meet this criterion.^{Footnote 129}

The key question is whether the general standard can be rationally justified. There are basically two possibilities for reconstructing the general standard, a simple and a complex one. The simple reconstruction uses the general high standard of rights protection in the EU as an external argument to evaluate the importance of the FCC’s control competence as moderate, maybe even as light, and the weight of the ECJ’s competence as high. Thus ceteris paribus the ECJ’s competence prevails. This simple reconstruction, however, suffers from a category error. The weights of the competences are concrete variables, pointing to the importance of realizing the respective competences in certain cases with specific circumstances. The FCC’s general standard, however, abandons the case-sensitivity. The general standard is by definition irrelevant for determining the concrete weights of the competences. Concrete weights can only be justified by means of concrete considerations.

This leads the way to the more complex reconstruction. It adds a new pair of variables to the balancing, namely the abstract weights of the competences. The abstract weight is the weight a competence has relative to other competences, but irrespective of concrete circumstances of specific cases. It is submitted that the general standard introduced in Banana Market is relevant for the abstract weight of the competences. Now several constellations have to be considered. The most easily solvable constellation is when the concrete weights of the colliding competences are identical. They cancel each other out, and in consequence it is solely the abstract weights that will determine the balancing result. It is this constellation that the FCC may have had in mind in Banana Market. However, the concrete weights remain to be relevant, in particular when they are not identical. Hence, the FCC is mistaken in simply ignoring the concrete weights by introducing the general standard.

Moreover, it is possible that we see a reversal effect in the balancing result: Suppose a constellation where the EU level generally provides a high protection standard, but fails extraordinarily in the concrete case. The concrete weight of the FCC’s control competence will then, following the factor of material principles, increase. If this increase is strong enough, due to heavy consequences for the rights holder, it may well outweigh the higher abstract weight of the ECJ’s competence, bringing about a reverse preference relation: The FCC’s competence prevails.

The general standard in Banana Market is incapable of capturing this reversal effect. The criterion used by the FCC for determining the formal merits of the case is incomplete. It simply ignores the concrete weights of the competences and pretends as if one could determine the preference relation between colliding competences by means of abstract considerations alone. This shortcut, however, is only possible in the constellation where the concrete weights are identical. Even then they have to be considered in order to establish that they are identical. In essence, the FCC not only forgoes to determine the specific case as far as material principles are concerned, it also resigns from establishing the concrete weight of its own control competence. It also follows that the view that it was extremely unlikely that any complaint would ever meet the admissibility barrier is mistaken. A single outlier case in which the infringement with fundamental rights is very serious in spite of the general satisfactory protection suffices.

Reverse Solange

The Solange method has been transferred to the perspective of the Union by the proposal of a ‘Reverse Solange’: ‘[O]utside the Charter’s scope of application, a Union citizen cannot rely on EU fundamental rights as long as it can be presumed that their respective essence is safeguarded in the Member State concerned.’^{Footnote 130} This proposal can be reconstructed as the result of a balancing of competences. The arguments brought forward by the authors to justify their proposal match quite well with the factors of my balancing model as spelled out above. By drawing on the principles of subsidiarity (Article 5, 1 TEU) and the protection of the identity of national constitutions (Article 4, 2 TEU), they use the factor of subsidiarity to justify a higher concrete weight of the control competence of the Member States’ courts.^{Footnote 131} Under the specified circumstances (it can be presumed that the essence of fundamental rights is protected in the Member State concerned), the competence of Member States’ courts has a higher concrete weight. If, on the other hand, the overall protection level in the particular legal system declines significantly, then the ECJ’s control competence may prevail, according to the factor of the quality of the decision, because the performance of the legal system in general matters for that quality. The authors refer to the situation of media freedom in Hungary in that respect.^{Footnote 132}

However, the authors of the Reverse Solange proposal neglect that the factor of the quality of the decision and the factor of material principles may weaken the national control competence under certain circumstances. The balancing of competences must always be sensitive to the circumstances of the concrete case. Whenever Member States’ courts, for example, provide only rudimentary protection, the factor of the quality of the decision weakens their control competence, and in consequence the competence of the ECJ may prevail. However, the proposal does not account for these situations since it borrows the general standard approach from Banana Market: ‘How then, could the presumption of compliance be rebutted? In light of what has just been said, not by simple and isolated fundamental rights infringements. Instead, one has to look for violations of the essence of fundamental rights which in number or seriousness account for systemic failure and are not remedied by an adequate response within the respective national system.’^{Footnote 133} This general standard approach is a serious weakness. The Reverse Solange proposal is vulnerable to the same objection as Banana Market. It does not distinguish between concrete and abstract weights of competences, and in result it ignores situations in which the concrete weight of the ECJ’s competence is so high that the Member State court’s competence is overridden.

Data Retention

The last case I would like to consider is the judgment concerning the constitutionality of the data retention in the Telecommunications Surveillance Act.^{Footnote 134} While paying lip service to its established Solange II jurisprudence, the FCC in effect departed from it. It exercised a de facto fundamental rights review of secondary EU law, in spite of the fact that settled case law as spelled out above did not allow for it.^{Footnote 135} It held that the complaints were admissible even insofar as the challenged provisions implement a Directive which does not allow for any discretion of the Member States in that particular respect.^{Footnote 136} This is clearly in contradiction to the established jurisprudence since with the circumstances being identical (non-discretionary, cogent Directive; provision of adequate protection of fundamental rights at EU level), the FCC had previously accepted the precedence of the ECJ’s competence, whereas it proclaimed a preference of its own competence in Data Retention.

The FCC, without explicitly saying so, rests this most significant change to the established jurisprudence on the difference between a competence to control and a competence to dismiss a legal provision. The established Solange II criteria are no longer relevant for the competence to control, but only for the competence to dismiss. The FCC in fact reformulates the conditional preference relation between the competences. On the one hand, this volte-face allows for reconciling a preference of the ECJ’s competence to dismiss with the FCC’s competence to control. It is of course logically possible to maintain divergent preference relations if they are referred to different competences. On the other hand, understanding the difference between the competence to control and the competence to dismiss is only the first step. The decisive question is whether the change in the preference relations between the competences to control can be rationally justified.

This question is to be answered by balancing the FCC’s competence to control and the ECJ’s competence to control, using the factors outlined above. Two aspects are vital in that respect. Both of them are only briefly mentioned as an aside in the FCC’s judgment. First, the FCC stresses that the storage of telecommunications traffic data without occasion constituted a particularly serious infringement with fundamental rights.^{Footnote 137} The FCC uses the factor of material principles here to strengthen the weight of its own competence to control. This is all the more important since the ECJ in its previous decision on data retention failed completely to address the fundamental rights concerns raised by the applicant.^{Footnote 138} I conclude that the Data Retention case can be interpreted as an instance of the possibility of a reversal effect which I underlined above in my criticism of the Banana Market decision. Ceteris paribus, the seriousness of the infringement with fundamental rights justifies the higher weight of the FCC’s control competence.

The second aspect regards the fact that the constitutional complaint directly challenged the implementing Act. Thus, the complainants had been unable to achieve a preliminary reference to the ECJ before the non-constitutional courts. Only a referral to the ECJ, however, could ensure that the latter may make a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union declaring the Directive void and thus opening the way for a review of the challenged provisions by the standard of German fundamental rights. Consequently, only the constitutional complaint to the FCC could open the way for a review of the challenged provisions by the standard of German fundamental rights. This way would have been blocked completely if the FCC had applied its established Solange II criteria to its competence to control, rather than merely to its competence to dismiss. The circumstances of the case signal a new factor not mentioned in my list above, namely the factor of reasonable evasion. The easier it is for the complainant to gain legal protection with the help of other means, the less important is the court’s competence. Since in the present case there was no other possibility for the complainant to reasonably evade, the FCC’s competence to control was strengthened.