Emily Hancox – Max Weber Fellow, European University Institute
Usually, within a legal order there are certain tools for resolving conflicts between legal norms. Most well-known are the principle of lex superior (granting priority to the higher-ranking norm), the principle of lex specialis (granting priority to the more specific norm) and the principle of lex posterior (granting priority to the norm which is later in time). However, these principles cannot resolve all instances of norm conflict; in those circumstances, how do and how should courts decide which norm takes precedence? In the context of EU law, this question has gone largely unexplored. This short post draws attention to constitutional weight of such decisions and highlights the need for further research into how the European Court of Justice (ECJ) prioritises between conflicting norms when traditional principles do not apply. To do so, this post focuses on the case of France v Parliament (Exercice du pouvoir budgétaire).
Caught Between Space and Time
The dispute in France v Parliament (Exercice du pouvoir budgétaire) concerned the adoption of the EU’s annual budget for 2017. The European Parliament faced competing requirements in terms of where it exercises its budgetary powers and the timescale within which it must do this.
In terms of where the European Parliament must carry out budgetary-related activities, Protocol No 6 on the location of the seats of the institutions (which has the same legal value as the Treaties) specifies that the ‘[t]he European Parliament shall have its seat in Strasbourg where the 12 periods of monthly plenary sessions, including the budget session, shall be held.’ To satisfy Protocol No 6, the European Parliament schedules twelve plenary part-sessions in Strasbourg per year and it is during these sessions that it should exercise its budget powers. When the European Parliament must carry out budgetary-related activities is determined by Article 314 TFEU. This Treaty provision essentially formalises a relationship of give-and-take between the institutions by setting out different stages for deliberations of the Council and the European Parliament. There are a series of specific time periods within which the Council and the European Parliament must send their amendments to the draft budget to one another and within which each institution must approve the budget.
During the procedure for adopting the 2017 budget, difficulties arose after what is known as the conciliation stage. At this point, the Conciliation Committee (composed of members of the Council and the European Parliament) must agree on a joint text. Once an agreement is reached, the European Parliament and the Council then have fourteen days within which to either approve or reject the joint text.
In 2016, the Conciliation Committee agreed on a joint text on 17 November 2016. At this point the fourteen-day period started running. What created problems was that, due to a series of necessary technical revisions, the finalised version of the draft budget only reached the European Parliament on 24 November 2016. This was last day of a plenary part-session in Strasbourg and the Rules of Procedure did not allow for debate on the joint text (Rules 156 and 158 require a document be distributed 24 hours in advance and translated in all EU official languages). The next plenary part-session in Strasbourg was on the 12-15 December, which fell outside the fourteen-day deadline.
The European Parliament was thus caught between the demands of Protocol No 6 and the need to approve or reject the draft budget within fourteen days. After the European Parliament chose to debate and approve the joint text of the budget in Brussels on 30 November – 1 December, France challenged the decision not to hold the vote in Strasbourg as required by Protocol No 6.
Reconciling the Irreconcilable?
The core legal dispute in the case concerned the irreconcilability between Protocol No 6 of the seats of the institutions and the times limits in Article 314 TFEU. What made the dispute particularly tricky was the lack of any hierarchy between the two provisions. As the ECJ noted, ‘the Protocol concerning the seats of the institutions and Article 314 TFEU have the same legal value, the obligations arising under the [Protocol] cannot, as such, prevail over those arising under Article 314 TFEU, and vice versa’ (para. 42).
The other conflict principles also did not appear relevant here, even if the ECJ does not make this point explicit. Since both provisions were ratified at the same time as part of the Treaty of Lisbon, neither provision was later in time. The principle of lex posterior could not then apply. Furthermore, given the distinct subject matter of the provisions – one relating to the procedure for adopting the EU budget and the other to the seats of the institutions – it is difficult to understand one provision as a lex specialis in relation to the other. In such circumstances, what criteria and methods the ECJ should employ to resolve conflicts between norms?
In the instant case, ECJ answered this question by holding that determining priority between the competing provisions ‘must be on a case-by-case basis and in a manner that reconciles those obligations and strikes a fair balance between them’ (para. 42). Framing the ECJ’s search for a balance were, on the one hand, the duties of mutual respect and sincere cooperation between the Member States and the institutions (para. 43) and, on the other, the European Parliament’s discretion ‘deriving from the essential requirements relating to the proper conduct of the budgetary procedure’ (para. 45). Bearing these considerations in mind, the ECJ concluded that the Parliament did not exceed its discretion (para. 66).
The case-by-case approach adopted by the ECJ in France v Parliament (Exercice du pouvoir budgétaire) does not shed much light on how the ECJ will reconcile competing provisions in future cases. Furthermore, it is not clear from the ECJ’s decision how it determined the relevant values and concerns to be balanced against one another and their relative weight. Yet, how the ECJ reconciled competing provisions here was decisive for the outcome of that case and involved complex constitutional questions on the role and functioning of the EU institutions.
This post concludes with a call for further consideration of how the ECJ resolves norm conflicts and what approach the ECJ should be adopting. In thinking about this question, one cannot ignore the various ‘Principles’ of the EU found in Articles 1-17 TFEU, setting out the various values and objections of Union action. When prioritising between competing provisions, should these principles not also inform the ECJ’s conclusions.