🚨Conseil d'Etat turns French national security against European liberty. 🚨
Vallée/Coauthor: In a "Securitarian Solange" it allows for the "sweeping collection" of personal data, defying EU law and the ECJ - and "abusing" Solange not to defend, but to restrict liberty. 1/11
Vallée/Coauthor: In a "Securitarian Solange" it allows for the "sweeping collection" of personal data, defying EU law and the ECJ - and "abusing" Solange not to defend, but to restrict liberty. 1/11
https://twitter.com/Verfassungsblog/status/1386452296289169409
"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." 2/ 
The Conseil refused the ultra vires route, "welcomed by Jacques Ziller and many legal scholars", but it also chose an even more "confrontational objection" to the ECJ's ruling "which could have very profound and long lasting consequences" and "has been largely unreported". 3/
(See also Ziller, anticipating this critique, verfassungsblog.de/the-conseil-de… but chosing very conciliatory formulations. 4/)
"Indeed, the French Court goes further than the BVerfG by openly resisting the application of EU law.... In this case, the French Government will indeed reject EU law for an extended (and potentially unlimited) period of time." 5/
It is "trying to use [Solange] arguing that... France’s constitutional identity warrants protection until the EU’s primary law does empower the EU on internal security matters – a securitarian Solange". 6/
The Conseil "is effectively creating the domestic legal ground for a permanent confrontation between the EU and the French legal order in the field of security". 7/
It "not only" declared "public order and security" part of constitutional identity (which "neither the constituent, nor the legislator has done"), but also gave them a definition so "loose and vague", that:
"France can oppose virtually any piece of European legislation". 8/
"France can oppose virtually any piece of European legislation". 8/
Conseil d'Etat = a dog that bites without barking?
"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." 9/
"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." 9/
Security as European supernorm?
"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,... to create an equal protection for security matter at the EU level." 10/
"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,... to create an equal protection for security matter at the EU level." 10/
The author's nail down the difference precisely:
Solange "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". This "ruling might be the first step of its undoing". 11/11
Solange "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". This "ruling might be the first step of its undoing". 11/11
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