As illustrated by the recent requests for a preliminary ruling from the Italian and German Constitutional Courts (see, for this latter, the Gauweiler case), the Member State’s Constitutional Courts have entered into a direct dialogue with the Court of Justice. This evolution should be welcomed. However, whitin the framework of Art. 267 TFEU, this dialogue must be based upon mutual trust. Consequently, the Constitutional Courts should fully acknowledge the jurisdiction of the Court of Justice. This would enable the Court of Justice to take into account more accurately their worries, in particular concerning possible encroachments by the EU institutions upon the Member States’ competences (ultra vires control) and the respect of Member States’ constitutional identify. In this way, Art. 267 TFEU would fully play a pacifying role in the relationship between these courts.

SOMMARIO:

I. Introduction - Section 1. From indirect to direct dialogue between the EU Court of Justice and Constitutional Courts of Member States - II. Indirect Dialogue - III. Direct Dialogue - IV. The reasons explaining why direct dialogue did not come into life until recently - V. The jurisdiction of the Court of Justice and the admissibility of the questions referred to it as conditions for direct dialogue. – Section 2. The contribution of a direct structural dialogue with the Court of Justice on ultra vires and constitutional identity reviews - Section 2. The contribution of a direct structural dialogue with the Court of Justice on ultra vires and constitutional identity reviews - VI. The mechanisms referred to and used by Constitutional Courts to review the constitutionality of EU acts - VII. Ultra vires - VIII. Constitutional identity - NOTE

I. Introduction

 The topic of the relationship between EU law and the EU Court of Justice, on the one hand, and the Member States Constitutional law and their Constitutional Courts, on the other [2], has been high on the agenda for the past years [3]. This issue is today enriched by the first preliminary ruling requested under Article 267 TFEU by the Bundesverfassungsgericht to the Court of Justice in the Gauweiler case concerning in particular the validity of the Outright Monetary Transactions (“OMT”) programme announced in September 2012 by the President of the European Central Bank (“ECB”), Mario Draghi [4]. This article appraises the general issues raised by that case from the angle of judicial dialogue and cooperation. In this respect, it cautiously considers the views of certain scholars who schematically describe the Court of Justice as embracing an “intolerant approach” towards the concerns of national constitutional designs [5] or as having elaborated a “doctrine of displacement” aiming at marginalising Constitutional Courts [6]. On the other hand, the views expressed in this article are more nuanced than other authors who depict the Constitutional Courts case law in relation to European integration and their reluctance to refer preliminary rulings to the Court of Justice, as essentially or even solely motivated by “judicial ego” [7]. This paper is divided in two parts, taking as a starting point the issues raised by the reference for a preliminary ruling in Gauweiler. The first part relates to the evolution of the dialogue, which was only indirect for many years, that has taken place between the Constitutional Courts and the Court of Justice and especially the way in which the Court of Justice has favoured a direct dialogue within the framework of art. 267 TFEU. The second part deals with the substantial concerns expressed by some Constitutional Courts, in particular those which arose in the request for a prelim

Section 1. From indirect to direct dialogue between the EU Court of Justice and Constitutional Courts of Member States

II. Indirect Dialogue

 Indirect, non-institutionalised, dialogue between the Court of Justice and the Constitutional Courts of the Member States can take place thanks to informal meetings or conferences. A manifestation of this form of indirect dialogue already existed between the Constitutional Courts themselves. Hence, the often celebrated Bundesverfassun­gsgericht “Solange II” decision [8] followed a meeting held at the Faculty of Law of the University of Bologna between Antonio La Pergola, who had acted as Reporting judge in the ground-breaking 1984 Granital case of the Corte Costi­tuzionale [9] and Wolfgang Zeidler, the President, at that time, of the Bundesverfassungsgericht. As a consequence of that meeting, although Solange II did not mention Granital, it explicitly made reference [10] to an article written by La Pergola [11], that explained the philosophy at the origin of the case delivered by the Corte Costituzionale [12]. As far as the relationship between the Court of Justice and the Constitutional Courts is concerned, the most prominent example of institutionalised indirect dialogue, which is often mentioned and discussed, admittedly more often described as a confrontation rather than a dialogue, is the Court of Justice’s reaction to the Corte Costituzionale’s Frontini judgement of 1973 [13] and to the Bundesverfassungsgericht’s “Solange I” decision of 1974 [14] in the area of the protection of fundamental rights. In these cases both Constitutional Courts, admittedly in a different way and reasoning [15], allowed themselves to rule on infringements of fundamental rights by Community institutions. Particularly in “So­lange I”, the Bundesverfassungsgericht deliberately aimed to place pressure on the Court of Justice to improve fundamental rights protection to a standard equivalent to that at the national level, with the objective of increasing convergence between the two legal orders [16]. History teaches that the Court of Justice is not deaf. It is since Nold (1974) [17] and Rutili (1975) [18], with the first explicit references to the European Convention of Human Rights (“ECHR”), that the Court of Justice progressively developed, within approximately 20 years of jurisprudence, an open-ended [continua ..]

III. Direct Dialogue

As emphasised by the Court of Justice, the EU «judicial system has as its keystone the preliminary ruling procedure provided for in art. 267 TFEU, which, by setting up a dialogue between the Court of Justice and the courts and tribunals of the Member States, has the object of securing uniform interpretation of EU law, thereby serving to ensure its consistency, its full effect and its autonomy as well as, ultimately, the particular nature of the law established by the Treaties» [29]. To that effect, national courts act as EU courts in full cooperation with the Court of Justice with the aim of ensuring judicial protection of an individual’s rights under EU law [30]. With the exception of the Belgian [31] and the Austrian [32] Constitutional Courts, it is merely in the past seven years that references for preliminary ruling have been submitted by the Lithuanian [33], Italian [34], French [35], Spanish [36] and German [37] Constitutional Courts. Although limited in quantitative terms, those requests have emerged on such a scale in the recent years that one may wonder why such a direct dialogue took that long to develop.

IV. The reasons explaining why direct dialogue did not come into life until recently

Three main intertwined reasons may explain why direct dialogue did not come into life until recently. One important reason may be that in a number of Member States, the Constitutional Courts do not consider that their national constitutions allow them to include EU law in the constitutional norms used for reviewing the constitutionality of domestic laws. Consequently, few issues of interpretation of EU law occur which would necessitate to refer the case to the Court of Justice. This is basically the position of the Czech Constitutional Court and of the French Conseil Constitutionnel [38]. Conversely, the important number of preliminary references made by the Belgian and Austrian Constitutional Courts may, at least partly, be explained by the fact that EU law, including the principle of primacy, is part of the constitutional norms that those Courts take into consideration when reviewing the constitutionality of national law [39]. A second reason may relate to the function of Constitutional Courts. Since ordinary courts are entrusted with the daily application of EU law, many constitutional courts have traditionally perceived their role as solely or essentially ensuring that the former courts properly fulfilled their role. In this respect, the Bundesverfassungsgericht [40], the Austrian, Czech and Spanish Constitutional Courts [41] have considered that failure by a court of last instance to refer to the Court of Justice a preliminary ruling concerning the validity or the interpretation of EU law without valid justification infringed the right to a “lawful judge” (“droit au juge légal”). This leads us to a third possible reason, namely the position of constitutional courts within the EU framework. Indeed, some of those courts do not consider themselves as “national” courts within the meaning of Article 267 TFEU [42]. That was chiefly the case as far as the Corte Costituzionale is concerned [43] until it decided to refer its first preliminary ruling to the Court of Justice in 2008 [44]. In the light of the reasons at the origins of the very slow progression towards a direct dialogue, the first preliminary reference made by the Bundesverfas­sungsgericht in the Gauweiler case could be interpreted, to some extent, as taking part in a process of “normalization” whereby Constitutional Courts assume their status of [continua ..]

V. The jurisdiction of the Court of Justice and the admissibility of the questions referred to it as conditions for direct dialogue. – Section 2. The contribution of a direct structural dialogue with the Court of Justice on ultra vires and constitutional identity reviews

 A preliminary condition for direct dialogue to take place, however often overlooked, is that the Court of Justice finds that it has jurisdiction to reply to the referred questions and that these questions are admissible. In Gauweiler, a number of Member States having submitted observations to the Court of Justice raised doubts concerning both the jurisdiction of the Court of Justice to answer the questions referred by the Bundesverfassungs­gericht and the admissibility of the preliminary ruling. As far as the first aspect is concerned to which I will confine myself, they chiefly pointed out that the preliminary ruling sought by the Bundesverfassungsgericht did not properly fit into the spirit of sincere cooperation which these proceedings entail. Indeed, a reference for a preliminary ruling is not a procedural mechanism intended to make it easier for national courts to carry out their own review of the validity of EU acts, such as the review the Bundesverfassungsgericht intends to carry out in Gauweiler. It is instead meant to ensure that the review of validity is entrusted to the Court of Justice. They also argued that, if a national court or tribunal were to reserve for itself the last word on the validity of an EU act, the preliminary ruling procedure would then be merely advisory in nature, and its function in the scheme of actions provided for by the Treaties would thus be severely undermined [50]. The Advocate General Cruz Villalón did seem to share a large number of these concerns [51]. However, he considered that the mere fact of requesting the Court of Justice to examine the validity of a Union act with the principles which define the constitutional identity of the Member States constituted the manifestation of sincere cooperation by the Bundesverfassungsgericht towards the Court of Justice. The Advocate General added that, seen in that light, the reference for a preliminary ruling would show the sincere intention that the interpretation given by the Court of Justice should serve as a sufficient basis for resolving the claims in the main proceedings. Against this background, he urged the Court of Justice to abide by the principle of sincere cooperation and to reject the plea that the it lacked jurisdiction to reply to the preliminary ruling. First, Advocate General Cruz Villalón suggested that the Court of Justice should respond with the greatest spirit of [continua ..]

Section 2. The contribution of a direct structural dialogue with the Court of Justice on ultra vires and constitutional identity reviews

VI. The mechanisms referred to and used by Constitutional Courts to review the constitutionality of EU acts

The mechanisms referred to and used by Constitutional Courts to review the constitutionality of EU acts. Obviously and understandably, Constitutional Courts have a mandate to uphold the values, the rights and the fundamental national concepts, such as national sovereignty, democracy or identity, enshrined in the Constitutions of their States. This mandate has led some Constitutional Courts, more or less openly under the model of the case law of the Bundesverfassungsgericht, to review the constitutionality of legal acts adopted by EU political institutions, as well as of the Court of Justice’s decisions. In practice, three review mechanisms [57], have so far been referred to and used by Constitutional Courts, namely the fundamental rights review, the ultra vires review and the constitutional identity review. As far as Germany is concerned, the fundamental rights review has been (hopefully) solved through the indirect dialogue described above, although in other Member States fundamental rights are regarded as integrated in the notion of constitutional identity, consequently triggering a single mechanism for controlling the constitutionality of EU acts [58]. However, as illustrated, on the one hand, by the Slovak pensions saga which culminated in 2012 by the Czech Constitutional Court’s declaration [59] that the Court of Justice acted ultra vires when delivering its judgment in Landtová [60], and on the other hand, by the request for a preliminary ruling in Gauweiler, the two other types of constitutional review of EU acts, including judgments of the Court of Justice, are at the very heart of the debate on settling a proper balance between centripetal and centrifugal dynamics within a Union composed of 28 Member States, which no doubt share common values but also claim that their competences and national or constitutional identity be fully acknowledged and respected. As far as the EU judicature is concerned, the only means to achieve this balance is for the Constitutional Courts to enter into a structured judicial dialogue, based on mutual trust, through the Art. 267 TFEU preliminary mechanism. In doing so, they should refrain from any unilateral attempt to calling into question the interpretation of EU law given by the Court of Justice, while indicating in a thorough, concrete and substantiated manner the content of the core and non-amendable values or principles of their [continua ..]

VII. Ultra vires

The EU and its institutions have conferred powers or competence [62]. They may consequently act ultra vires if they fail to adhere to the limits to their competence embodied in the Treaties [63].While national courts may declare EU acts valid, the Court of Justice is the only court entrusted with the power to invalidate EU secondary legislation and acts as being contrary to the provisions of the Treaties, for the sake of uniform application of EU law [64]. Some Constitutional Courts, such as the Spanish Tribunal Constitucional, explicitly accept the exclusive jurisdiction of the Court of Justice, admitting that the Constitution is not the framework for reviewing the validity of EU legislation. Accordingly, the Spanish Tribunal Constitucional «is not entitled to check the validity of law adopted by European institutions, this control being carried out, in any case, by the Court of Justice when settling, amongst others, any preliminary rulings on validity that may eventually be raised» [65]. Ultra vires review of EU acts carried out by some Constitutional Courts directly challenges this conceptual and legal construction, both on substance and procedurally. In fact, these Courts have been inclined to review the said acts a­gainst their own assessment on the delineation of competences between the EU and the Member States, claiming to be the “final arbitrators” on the transfer of powers granted by the latter to the former [66]. The Bundesverfassungsgericht has been the first Constitutional Court to grant itself that power in its 1993 Maastricht decision [67]. Although quite criticized, the Bundesverfassungsgericht has so far not rescinded its ultra vires review [68]. In Honeywell [69], delivered in 2010, it has significantly limited the possibility of positively finding that the EU acted ultra vires by introducing a set of procedural and substantial pre-conditions. Among the procedural conditions is the admission by the Bundesverfassungsgericht, like some other courts such as the Danish Supreme Court [70], that it is to refer a preliminary ruling to the Court of Justice before any such finding. This condition has been put into effect for the first time in Gauweiler and, as such, should be warmly welcomed. However, a complete, true and sincere alignment on the binding nature of the [continua ..]

VIII. Constitutional identity

The concept of constitutional identity has been high on the agenda of Constitutional Courts and among scholars in the recent past years. Quite a num­ber of Constitutional Courts have indeed stressed that EU law cannot encroach upon the core elements of the constitutional identity of their own State, among which the Bundesverfassungsgericht, the French Conseil Constitutionnel [75] and the Polish Constitutional Court in its Lisbon decision of 2010 [76]. The concept is often referred to, but the content of what constitutes the inviolable core of constitutional identity is more difficult to appraise and may vary and evolve within the same Member State; it may for instance encompass fundamental rights, but probably not all of them would fall within the hard core of constitutional identity [77]. In its reference in Gauweiler, the Bundesverfassungsgericht stated that when a measure adopted by an EU institution affects the constitutional identity protected by the German Basic Law, that measure is from the outset inapplicable in Germany. The Bundesverfassungsgericht substantially added that, although it is ready to accept the interpretation of that EU measure given by the Court of Justice in the preliminary ruling proceedings, it will still be within its powers to examine whether or not the concerned measure (as interpreted by the Court of Justice) encroaches upon the «inviolable core of the [German] constitutional identity» [78]. The Bundesverfassungsgericht also stresses that the constitutional identity enshrined in the German Basic Law is an “absolute limit” for the applicability of EU law, whereas the concept of national identity laid down in art. 4 (2) TEU, as interpreted by the Court of Justice, is merely taken into consideration as a “legitimate aim” balanced against other legitimate interests [79]. I do share the view of Advocate General Cruz Villalón that it would be an impossible task to preserve our Union, as we know it today, if it is to be made subject to an absolute reservation, ill-defined and virtually at the discretion of each of the Member States, which takes the form of a category described as “constitutional identity”, particularly if that “constitutional identity” is stated to be different from the “national identity” referred to in art. 4(2) TEU [80]. The case law of Court [continua ..]

NOTE