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Multiple loyalties and dual
preliminarity: The pains of being a
judge in a multilevel legal order
Giuseppe Martinico*
This article deals with the multiple loyalties
of national judges in multilevel contexts,
and focuses on the particular issue of dual
preliminarity (doppia pregiudizialità) by
examining some selected cases taken from
national and supranational case law.
Dual preliminarity refers to those cases
where national judges simultaneously raise
both the preliminary question to the Court
of Justice of the European Union (concerning the validity or interpretation of an EU
act) and the question of constitutionality
(regarding the validity of a national norm)
to their own constitutional court.
I will analyze the issue of dual preliminarity both from the perspective of the national judges and from the perspective of
their Constitutional Courts. This article is
structured as follows: I first introduce the
issue of dual loyalty of national judges by
looking at selected cases; then I move to the
discussion of dual preliminarity.
This article deals with the multiple loyalties of national judges in multilevel contexts and focuses on the particular issue
of dual preliminarity (doppia pregiudizialità), by examining some selected cases
taken from national and supranational
case law. Let me first specify what I mean
by dual preliminarity: it refers to those
cases where national judges simultaneously raise both the preliminary question
to the Court of Justice of the European
Union (concerning the validity or interpretation of an EU act) and the question
of constitutionality (regarding the validity of a national norm) to their own constitutional court.
Undoubtedly, these two proceedings
differ in their scope, object, and effects:
while the question of constitutionality
insists on the domestic provision and
usually presents a sort of erga omnes
effect,1 the question concerning the EU
* Garcia Pelayo Fellow, Centro de Estudios Politicos y Constitucionales, Madrid; Researcher at the Centre for
Studies on Federalism, Turin. PhD Scuola Superiore Sant’Anna, Pisa. Former Max Weber Fellow (2010–11),
European University Institute. Adjunct Professor Scuola Superiore Sant’Anna, Pisa and editor of Sant’Anna
Legal Studies (www.stals.sssup.it). I would like to thank Monica Claes, Filippo Fontanelli, Arthur Dyevre, Maartje
de Visser, Leonardo Pierdominici, Aida Torres Pérez, and the anonymous r­eviewers for their comments.
1
See Alessandro Pizzorusso, Italian and American Models of the Judiciary and of Judicial Review of
Legislation: A Comparison of Recent Tendencies, 38 Am. J. Comp. L., 373 (1990).
I•CON (2012), Vol. 10 No. 3, 871–896doi:10.1093/icon/mos027
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I•CON 10 (2012), 871–896
act has different features (for instance,
the issue of the erga omnes effect is disputed2). Nevertheless, from the perspective of national (common) judges (“giudici
comuni,” i.e., ordinary and administrative
judges), both of these preliminary questions can be used in order to obtain the
same (desired) effect: obtaining an argument from a higher court in order to
exclude the application (setting it aside
or acknowledging its unconstitutionality) of a norm in a case pending before
themselves.
In this article I will analyse the issue
of dual preliminarity both from the perspective of the national judges and from
the perspective of their Constitutional
Courts. This article is structured as follows: I first introduce the issue of dual
loyalty of national judges by looking at
selected cases; then I move to the discussion of dual preliminarity.
As we will see, while to the common
judges, dual preliminarity is a technique
to enlarge their interpretative and applicative opportunities with regard to the
economy of their pending case (consistently with a logic of inter-court competition3), to the Constitutional Courts, dual
preliminarity can be used as a technique
2
3
4
5
6
7
8
of hidden dialogue4 with the European
Court of Justice (ECJ)5 (see the Berlusconi
case6). The ECJ, instead, may perceive dual
preliminarity as a menace to the effectiveness of EU law (see the Melki case7).
1. The dual role of
national judges in the
multilevel legal order: some
problematic examples
As is well known, national judges play a
fundamental role in the multilevel system, since they are both the guardians
of the application of national law and
the first defenders of the Simmenthal
doctrine:8 this is indeed one of the confirmations of the complex structure of the
European legal order. Since, in this context, national and supranational levels
share “legal materials” (common constitutional traditions or general principles of
European law are inferred from national
legal principles), their judges present
multiple loyalties: they have to be loyal to
the ECJ and to their Constitutional Court
at the same time. I think we can describe
this situation by using the formula “dual
loyalty.”
On this issue see Alberto Trabucchi, L’effet erga omnes des décision préjudicelles rendues par la Cour de
justice des Communautés européennes [The Erga Omnes Effect of Preliminary Rulings Given by the Court
of Justice of the European Communities], 10 Revue trimestrielle de droit européen 56 (1974).
Karen Alter, Explaining National Court Acceptance of European Court Jurisprudence: A Critical
Evaluation of Theories of Legal Integration, in The European Court and National Courts—Doctrine and
Jurisprudence. Legal Change in its Social Context 227 (Anne-Marie Slaughter, Alec Stone Sweet, Joseph
Weiler eds. 1998).
Giuseppe Martinico, Judging in the Multilevel Legal Order: Exploring the Techniques of “Hidden
Dialogue”, 21(2) King’s L. J. 257 (2010) [hereinafter Judging].
The official name of the Luxembourg Court is the Court of Justice of the European Union, but I will use
ECJ in this article.
Case C-387/02 Berlusconi [2005] ECR I-3565.
Joined Cases C-188/10 and C-189/10, Melki [2010] ECR I-5665.
Case 106/77 Simmenthal [1978] ECR I-629.
Multiple loyalties and dual preliminarity
It is necessary here to clarify: in politics and political philosophy possess vast
literature about this concept.9 A political
scientist would probably use the word
“obligation” rather than “loyalty”10 in
order to describe the position of national
judges in this context, but since in constitutional studies we frequently talk about
“constitutional loyalty,”11 I decided to use
this term. Generally speaking, “dual loyalty” refers to a loyalty to two separate
interests that potentially conflict with
each other.
This is exactly what we can observe in
the role played by national judges, and
my intuition is that such dual loyalty
can generate antinomies in the multilevel legal system. In fact, if national
judges are well aware of the necessity to
acknowledge the precedence of EU law
9
10
11
873
when it is in contrast with national law, it
is more complicated to understand what
they should do in the case of conflict
between EU law provisions and national
constitutional provisions.
A good example of these kinds of
antinomies is given by the Federfarma
case12 of the State Council (Consiglio di
Stato).13 The case concerned an Italian
law (law no. 362/1991) permitting pharmaceutical companies to own municipal
pharmacies in Milan. The legislation was
partly declared unconstitutional by the
Italian Constitutional Court because of
the violation of article 32 of the domestic Constitution (the right to health) “in
that section which did not envisage that
a shareholding in companies managing municipal pharmacies is incompatible with all other operations in the
On dual loyalty see Ilan Zvi Baron, The Problem of Dual Loyalty, 42(4) Can. J. Pol. Sci. 1025 (2009). “By obligation I mean rule-governed conduct, and political obligation specifically refers to laws and law
like demand, made by public agencies”: Judith Shklar, Obligation, Loyalty, Exile, 21(2) Political Theory
181, 183 (1993).
See, e.g., Austrian scholarship:
Constitutional loyalty is an intrinsic value principle of all constitutions without which a constitution cannot work properly. Constitutional loyalty particularly requests respect from state
authorities; as manifest in the oaths of loyalty that are sworn by supreme organs of the state; by
the duties imposed on civil servants and similar categories of public employees; or in the preconditions of founding a political party. Another arena where constitutional loyalty plays an important, though somewhat neglected, role is the compound state. Where a state consists of at least
two tiers, the constitution will have to take care that all tiers are bound to loyalty – loyalty to the
constitution itself, but also to each other.
12
13
Anna Gamper, On Loyalty and the (Federal) Constitution, 4(2) Vienna J. Int’l Const. L. 157, 157 (2010).
Cons. St., sez. V, n. 4207/2005. On this see: Antonio Ruggeri, Le pronunzie della Corte costituzionale come
“controlimiti” alle cessioni di sovranità a favore dell’ordinamento comunitario? (A margine di Cons. St., sez.
V, n. 4207 del 2005) [The Judgments of the Constitutional Court as "Counterlimits" to the Transfers of
Sovereignty to the EC Legal Order? (Concerning the decision of the Council of State, sec. V, n. 4207 of
2005)], www.forumcostituzionale.it/site/index3.php?option=com_content&task=view&id=350&Ite
mid=91; Oreste Pollicino, Il difficile riconoscimento delle implicazioni della supremazia del diritto europeo:
una discutibile pronuncia del Consiglio di Stato (A margine di Cons. St., sez. V, sent. n. 4207/ 2005) [The
Difficult Recognition of the Implications of the EU Law Supremacy: A Questionable Decision of the Council
of State (Concerning the decision of the Council of State, sec. V, n. 4207/2005)],www.forumcostituzionale.
it/site/index3.php?option=com_content&task=view&id=531&Itemid=91. The decision is available at the
following link: http://www.giustizia-amministrativa.it/webcds/frmRicercaSentenza.asp. Cons. St., sez. V, sent. n. 4207/2005.
874
I•CON 10 (2012), 871–896
sector including the production, distribution, intermediation and scientific
information of medicines.”14 Declaring
the unconstitutionality of the provision,
the Constitutional Court interpreted the
remaining part of the law by offering a
judgment that replaced the unconstitutional section with a new norm (a clear
example of an additive judgement/sentenza
additiva). The response of the European
Commission was:
The Constitutional Court’s interpretation
not only discourages but makes it impossible for enterprises operating or linked to
enterprises operating in the pharmaceutical distribution to purchase majority or
minority holdings in companies managing pharmacies.15
On this ground, in a subsequent case, the
Italian State Council was asked to disapply the Italian provision as interpreted by
the Constitutional Court because of its
contrast with EU law. The State Council
refused to do so.
In Federfarma, the State Council identified another exception to the Cilfit
doctrine,16 following a very eccentric
14
15
16
reasoning: since a contested Italian regulation had been interpreted by the
Constitutional Court in a certain way, it
had to be conceived as constitutional in
nature since the interpretative judgment of
the Italian Constitutional Court “had been
issued by the Constitutional Court to safeguard the right to health, which amounts
to a ‘counter-limit’ to European law insofar
as it is situated in an area, that of fundamental rights.”17 As a result of this characterization, “it, therefore, made no sense
to refer to the ECJ for a preliminary ruling
‘which cannot be taken into account’,18
i.e., which was immaterial to the case”:19
“If we cannot use the ECJ’s decision, why
refer to the ECJ?” This rhetoric seems to be
the essence of the State Council’s decision.
The Federfarma case, however, is just one
of many judgments based on an evident
misunderstanding of the basic elements of
EC/EU law by the Italian national judges:
in Federfarma, the State Council confused
the Charter of Fundamental Rights of the
EU with the Nice Treaty.20
Another interesting case is Cordero
Alonso,21 where the Spanish judge,
Translation by Giulio Itzcovich, Fundamental Rights, Legal Disorder and Legitimacy: The Federfarma Case,
Jean Monnet Working Paper, Dec. 2008, http://centers.law.nyu.edu/jeanmonnet/papers/08/081201.
html, at 16.
European Commission, letter of 16 March 2005, C (2005) 762/1, infringement proceeding 2004/4928
against Italy, as cited by Itzcovich, supra note 14, at 15. The well-known Cilfit case excluded the duty of the national judge of last instance to raise the question,
also when:
previous decisions to the Court have already dealt with the point of law in question, irrespective of the nature of the proceedings which led to those decisions, even though the questions at
issue are not strictly identical.
17
18
19
20
21
This is further confirmed by art. 104, ¶ 3, of the ECJ Rules of Procedure, where no distinction can
be traced (under this perspective) between the preliminary ruling and other proceedings. The State
Council interpreted this case as a test of the utility/necessity of the decision of the Court. Case
C-283/81, SRL Cilfit e Lanificio di Gavardo SPA v. Ministero della Sanità [1982] ECR 3415.
Itzcovich, supra note 14, at 17.
Cons. St., sess. V, dec. no. 4207/ 2005.
Itzcovich, supra note 14, at 17.
See Pollicino, supra note 12.
C-81/05, Cordero Alonso [2006] ECR I-7569.
Multiple loyalties and dual preliminarity
referring the question to the ECJ asked
about the necessity to disapply a national
statute (art. 33 of the Workers’ Statute)
which had already been acknowledged
as inconsistent with the EU principle of
non-discrimination by the ECJ in a previous judgment22 but which, after the
first ECJ judgment on this matter, had
also been interpreted in a way consistent with the constitutional principle
of non-discrimination by the Spanish
Constitutional Court:23
Since the general principle of equality
and non-discrimination is a principle
of Community law, Member States are
bound by the Court’s interpretation of
that principle. That applies even when the
national rules at issue are, according to the
constitutional case-law of the Member State
concerned, consistent with an equivalent
fundamental right recognised by the national
legal system.24 (Emphasis added.)
In this case, the national judge was not
able to decide which court he should
follow (either the ECJ or the domestic
constitutional judge) and, in order to
avoid a decision which would have been
seen as challenging the case law of the
Spanish Constitutional Court, decided
to refer an interpretive question to the
ECJ about the meaning and the scope
of the non-discrimination principle in
EU law. The ECJ confirmed its previous interpretation recalling that the
Simmenthal doctrine and the principle of
autonomy of EU law required the disapplication of national law conflicting with
European legislation. This way, the ECJ
22
23
24
25
875
offered a very different interpretation of
the same principle (i.e., the principle of
non-discrimination) from that provided
by the Spanish Constitutional Court:
although a provision is consistent with
the national Constitution it has to be disapplied if it contrasts with the EU law as
interpreted by the ECJ.
These kinds of conflicts, caused by the
dual loyalty of national judges to the ECJ
and their own Constitutional Courts,
have been nourished over the years by
the progressive constitutionalization of
the EU. The European Union is a complex
legal order, since it stems from the interlacing of national and supranational
legal systems (complexus in Latin means
“interlaced”).25 This implies the existence
of shared legal sources (see the common
constitutional traditions that are inferred
from the national constitutional materials)
and many principles of EU law have their
“roots” in the national legal traditions.
Against this background, the EU
is indebted to national constitutional
orders since they gave the Union new
blood by favoring the circulation of principles and practices that have shaped and
reshaped the substance of the Treaties.
Such a situation is the outcome of a
convergence between the starting positions held by the ECJ (monism) and the
national Constitutional Courts (dualism)
in the first years of European integration.
Over the years, this purity was overcome and the Constitutional Courts
began to talk about two “autonomous
and separated, although coordinated”
C-442/00, Rodríguez Caballero [2002] ECR I-11915.
Tribunal Constitucional, judgment no. 306/1993 of Oct. 25, 1993, available at www.tribunalconsti
tucional.es. Cordero Alonso, supra note 21, ¶ 41
I attempted to develop this idea in Giuseppe Martinico, Complexity and Cultural Sources of Law in the EU
Context: From Multilevel Constitutionalism to Constitutional Synallagma, 8 German L. J. 205 (2007).
876
I•CON 10 (2012), 871–896
systems (the Italian Constitutional Court,
for example, in case no. 170/1984).
At the same time, the ECJ has demonstrated its appreciation of the efforts of
these national actors by assuming—
sometimes—a benign and tolerant attitude: some scholars have defined such a
situation of partial convergence by using
the formula of (limited) flexibilization of
supremacies.26
Gradually, the ECJ seemed to get the
point by incorporating the concept of
the fundamental rights as a premise of
the primacy of EU law and important
new provisions have been introduced
into the Treaties, namely former articles
6 and 7 of the TEU. Despite this convergence, there has been no lack of tension
between the ECJ and the constitutional
courts because of the gradual expansion
of the ECJ activity into national fields.
Moreover, the product of this convergence gave birth to new kinds of conflicts
among interpreters, conflicts due to the
existence of legal sources (the principles
concerning the protection fundamental
rights) that are now shared by the ECJ
and the national constitutional courts:
26
27
28
29
30
31
such a scenario has produced dynamics
of interpretive competition.
The referring judge in the Cordero
Alonso case was just a collateral victim
of the interpretive competition between
constitutional courts and the ECJ—an
interpretive competition that paradoxically increased with the gradual constitutionalization of the EU: the ECJ
increasingly started acknowledging an
important role of the national constitutional materials in its decisions. This
“partial” appropriation of the fundamental rights discourse by the ECJ emerges in
a long series of judgments, and it is most
evident in cases such as Omega27 and
Dynamic Medien.28 As some authors have
pointed out, a look at those cases reveals
a certain concern over the “octroyée
methodology of construing common
constitutional traditions.”29
However, the Cordero Alonso case is
just one of the examples of cases where
the ECJ has challenged judgments given
by national constitutional courts. Other
recent examples are the Filipiak30 and
the Winner Wetten31 cases. On the other
hand, the ECJ seemed to show deference
Victor Ferreres Comella, La Constitución española ante la clausola de primacia del Derecho de la
Unión europea. Un comentario a la Declaración 1/2004 del Tribunal Constitucional [The Spanish
Constitution in the face of the Primacy Clause of European Union Law. A Commentary on Declaration
1/2004 of the Constitutional Court], in Constitución española y constitución europea [The Spanish
Constitution and European Integration] 77, 80–89 (A. Lopez Castillo, A. Saiz Arnaiz, & V. Ferreres
Comella eds., 2005).
C-36/02, Omega [2004] ECR I-9609.
C-244/06, Dynamic Medien [2008] ECR I-505.
Marco Dani, Tracking Judicial Dialogue—The Scope for Preliminary Rulings from the Italian Constitutional
Court, Jean Monnet Working Article, 10/2008, available at http://centers.law.nyu.edu/jeanmonnet/
articles/08/081001.html. See also the reactions to the Mangold case (C-144/04, Mangold [2005] ECR
I-9981): Roman Herzog & Lüder Gerken, [Comment] Stop the European Court of Justice, Sept. 10, 2008,
http://euobserver.com/9/26714. This piece is the translation of an article originally published in German:
Stoppt den Europäischen Gerichtshof, Frankfurter Allgemeine Zeitung, Sept. 8, 2008.
C-314/08, Filipiak [2009] ECR I-11049.
C-409/06, Winner Wetten, Sept. 8, 2010, unreported, available at http://curia.europa.eu/juris/liste.
jsf?language=en&num=C-409/06. Multiple loyalties and dual preliminarity
to the French Conseil Constitutionnel in
the Melki case32 on the very hot topic of
the dual preliminarity (doppia pregiudizialità)33—but I will come back to this
point later on.
The Winner Wetten case originated
in a preliminary reference raised by a
German court. In 2006, the German
Constitutional Court acknowledged that
the legislation on the public monopoly on
gambling on sporting competitions existing in two Länder violated paragraph
12(1) of the Basic Law. At the same
time, it decided not to declare the legislation in question unconstitutional and to
maintain it in effect until December 31,
2007, sending a sort of “message” to the
legislature to push it to intervene by that
date through the use of its discretionary
power in order to amend the legislation
in conformity with the Basic Law.
Despite the judgment of the German
Constitutional Court, the ECJ decided to
push the referring judge to disapply the
legal provision “saved,” for a transitional
period, by the German Constitutional
Court and concluded that:
By reason of the primacy of
directly-applicable Union law, national
legislation concerning a public monopoly on bets on sporting competitions
which, according to the findings of a
national court, comprises restrictions
that are incompatible with the freedom of
32
33
34
35
877
establishment and the freedom to provide
services, because those restrictions do not
contribute to limiting betting activities
in a consistent and systematic manner,
cannot continue to apply during a transitional period.34
Filipiak is a very similar case originating from a preliminary question raised by
a Polish judge with regard to the proceedings on tax issues between Mr. Filipiak,
a Polish national conducting economic
activity in the Netherlands (where he regularly paid his social security and health
insurance contributions as required by
Dutch legislation) and the Director of
the Poznań Tax Chamber. What is interesting to us is that, before the judgment
in the appeal, the Polish Constitutional
Tribunal ruled that the income tax law
in question infringed the principles of
equality and social justice codified in the
Polish Constitution but, at the same time,
by exploiting its powers ad hoc provided,
decided to postpone the loss of validity of
the legislation until November 30, 2008.
The ECJ concluded that “the primacy
of Community law obliges the national
court to apply Community law and to
refuse to apply conflicting provisions of
national law, irrespective of the judgment
of the national Constitutional Court
which has deferred the date on which
those provisions, held to be unconstitutional, are to lose their binding force.”35
Melki, supra note 7.
Marta Cartabia, Il processo costituzionale: l'iniziativa. Considerazioni sulla posizione del giudice comune
di fronte a casi di “doppia pregiudizialità” comunitaria e costituzionale, 5 Il Foro italiano 222 (1997). For
a very similar point of view about the dual preliminarity in English, see Marta Cartabia, Taking Dialogue
Seriously, Jean Monnet Working Paper, Dec. 2007, available at http://centers.law.nyu.edu/jeanmonnet/
papers/07/071201.html. See Corte Costituzionale, ord. no. 536/1995 available at http://www.giurcost.
org/decisioni/1995/0536o-95.htm, and Corte Costituzionale, ord. no. 319/1996, available at http://
www.giurcost.org/decisioni/1996/0319o-96.htm.
Winner Wetten, supra note 31.
Filipiak, supra note 30.
878
I•CON 10 (2012), 871–896
2. The many faces of dual
preliminarity
EU law is just one of the factors inducing
multiple loyalties in the ordinary judges.
Similarly these national judges have a crucial role in the application of the European
Convention on Human Rights (ECHR),
and recently scholars have defined them
as the natural judges of international
law.36 Against this background, what
renders EU law particular is the preliminary ruling mechanism which makes
the relationship between national judges
and the ECJ even stronger. The preliminary ruling mechanism has indeed had
36
37
38
a fundamental role in the evolution of EU
law thanks to the lucky alliance between
national judges and the Luxembourg
Court.37 That is why over the years the ECJ
has always conceived its relationship with
domestic judges as a direct one that cannot be jeopardized by the judicial hierarchies existing at domestic level.38
The consequence of this assumption
is that the preliminary question may be
revoked only by the referring judge, who
should be understood as the master of
the preliminary reference.39 This point
has been clearly emphasized by the ECJ in
a number of cases, more recently in the
famous Melki case.40
Antonios Tzanakopoulos, Domestic Courts as the “Natural Judge” of International Law: A Change
in Physiognomy, in Select Proceedings of the European Society of International Law, vol. 3, 155 (James
Crawford & Sarah Nouwen eds., 2011).
See the reports in Anne-marie Slaughter, Alec Stone Sweet, & Joseph Weiler eds, The European Court and
National Courts—Doctrine and Jurisprudence: Legal Change in its Social Context (1997).
166/73, Rheinmühlen-Düsseldorf I (1974) ECR, at 33:
National courts have the widest discretion in referring matters to the court of justice if they consider that a case pending before them raises questions involving interpretation, or consideration
of the validity, of provisions of community law, necessitating a decision on their part.
It follows from these factors that a rule of national law whereby a court is bound on points of
law by the rulings of a superior court cannot deprive the inferior courts of their power to refer to
the court questions of interpretation of community law involving such rulings.
It would be otherwise if the questions put by the inferior court were substantially the same as
questions already put by the superior court.
On the other hand the inferior court must be free, if it considers that the ruling on law made
by the superior court could lead it to give a judgment contrary to community law, to refer to the
court questions which concern it.
If inferior courts were bound without being able to refer matters to the court, the jurisdiction
of the latter to give preliminary rulings and the application of community law at all levels of the
judicial systems of the member states would be compromised.
39
See also C-210/06, Cartesio (2008) ECR I-9641.
146/73, Rheinmühlen-Düsseldorf II (1974) ECR, at 139:
A rule of national law whereby a court is bound on points of law by the rulings of a superior
court cannot on this ground alone deprive the inferior courts of their power, provided for under
article 177, to refer questions to the court for a preliminary ruling. However, in the case of a
court against whose decisions there is a judicial remedy under national law, article 177 does not
preclude a decision of such a court referring a question to this court for a preliminary ruling from
remaining subject to the remedies normally available under national law. Nevertheless, in the
interests of clarity and legal certainty, the court must abide by the decision to refer, which must
have its full effect so long as it has not been revoked. 40
See Melki, supra note 7, at 42:
The Court has concluded therefrom that the existence of a rule of national law whereby courts
or tribunals against whose decisions there is a judicial remedy are bound on points of law by
Multiple loyalties and dual preliminarity
This makes it clear why the ECJ is very
jealous of its alliance with the national
common judges and why it has always
reacted in a resolute way to any attempt
that might jeopardize such a privileged
relation that has been built over the
years. However, if we adopt a different
perspective, we can see that something
similar also happens with regard to the
relation between Constitutional Courts
and common judges, especially in those
legal orders that present an incidenter
(or direct) form of control of constitutionality. This incidenter control of constitutionality consists of a claim filed by
a common judge (known as the judge a
quo, a Latin expression meaning “from
which,” since the question stems “from”
the judge) and is carried out while the
underlying proceedings are pending
(they are suspended). It is an indirect
review of legislation that has a concrete
effect: the outcome of the constitutionality review is decisive for the determination of the dispute before the referring
judge. In these kinds of proceedings
879
(whose structure resembles that of the
preliminary ruling mechanism), national
common judges act as gatekeepers,41
entrusted with launching the proceedings, and their cooperation is essential to
the work of the Constitutional Courts.
Reviewing the key role played by
national judges in the activity of both
of these higher Courts (i.e., the ECJ and
constitutional courts), one can see how
dual preliminarity may potentially cause
frictions or at least competition between
them for the control over national judges.
This is true especially in a context characterized by different (although sometimes
compatible)42 levels of protection of fundamental rights that are simultaneously
disciplined at national (national constitution and legislation), supranational
(EU), and international (ECHR) level.
With this scenario in mind, we can now
move to the analysis of the Melki case.43
This case originated in the reform introduced in France by article 61-1 of the
French Constitution which introduced the
incidenter control of constitutionality.44
the rulings of a court superior to them cannot, on the basis of that fact alone, deprive the lower
courts of the right provided for in Article 267 TFEU to refer questions on the interpretation of
EU law to the Court of Justice (see, to that effect, Rheinmühlen-Düsseldorf, paragraphs 4 and
5, and Cartesio, paragraph 94). The lower court must be free, in particular if it considers that a
higher court’s legal ruling could lead it to give a judgment contrary to EU law, to refer to the Court
questions which concern it (Case C-378/08 ERG and Others [2010] ECR I-0000, paragraph 32).
41
42
43
44
Piero Calamandrei, Lettera dedicatoria al prof Enrico Redenti [Dedicatory Letter to Prof. Enrico Redenti],
in La illegittimità costituzionale delle leggi nel processo civile [The Constitutional Unlawfulness of Statutes
in Civil Trials] i, xii (1950).
On this issue see the judgments in Solange I, BVerfGE 37, S. 271 et seq., 1974, available at http://www.
servat.unibe.ch/dfr/bv037271.html [hereinafter Solange I]; Solange II, BVerfGE 73, 339 (1986), available at http://www.servat.unibe.ch/dfr/bv073339.html; and ECHR, Boshphorus Hava Yollari Turizm ve
Ticaret Anonim Sirketi v. Ireland (June 30, 2005) Reports of Judgmentsand Decisions 2005-VI, § 155,
available at http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=777884&portal=
hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649. .
Melki, supra note 7. Art. 61-1:
If, during proceedings in progress before a court of law, it is claimed that a statutory provision
infringes the rights and freedoms guaranteed by the Constitution, the matter may be referred by
the Conseil d’État or by the Cour de Cassation to the Constitutional Council, within a determined
period. An Institutional Act shall determine the conditions for the application of the present article.
880
I•CON 10 (2012), 871–896
This provision was implemented by
Institutional Act No. 2009-1523 which
amended Ordinance No. 58-1067 of
November 7, 1958. Following this reform,
article 23-5 of the Ordinance, paragraph
2, provided for the primacy of the question of constitutionality over the review
concerning conformity with EU Law:
provision infringes the rights and freedoms guaranteed by the Constitution,
and secondly that it runs counter to
the international commitments entered
into by France, rule in priority on the
transmitting to the Constitutional
Council of the application for a priority preliminary ruling on the issue of
constitutionality.45
In all events the Conseil d’Etat or Cour
de Cassation must, when asked to rule
on arguments claiming firstly that a
Doubting the compatibility of this provision with the EJC’s jurisprudence,46
the French Cour de Cassation47 referred a
45
46
On this, see Federico Fabbrini, Kelsen in Paris: France’s Constitutional Reform and the Introduction of
A Posteriori Constitutional Review of Legislation, 9(10) German L. J. 1297 (2008).
As commentators pointed out, this provision prescribes: [the] priority of review of constitutionality
(contrôle de constitutionnalité) over the review concerning conformity with international obligations
(contrôle de conventionnalité), including EU law. In essence, French courts are required to firstly submit the question of constitutionality to the Constitutional Council (in case of lower courts through the
supreme jurisdictions) and only then to consider possible conflicts with EU law. See Gnaeus Flavius,
A challenge to the French constitutional reform submitted to the Court of Justice by the Cour de
Cassation, Adjudicating Europe Blog (June 2011), http://adjudicatingeurope.eu/. C-106/77, Italian Finance Administration v. Simmenthal, supra note 8:
. . . [A]ny provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of Community law by withholding from the national
court having jurisdiction to apply such law the power to do everything necessary at the moment
of its application to set aside national legislative provisions which might prevent community rules
from having full force and effect are incompatible with those requirements which are the very
essence of community law. This would be the case in the event of a conflict between a provision of Community law and a subsequent national law if the solution of the conflict were to be
reserved for an authority with a discretion of its own, other than the court called upon to apply
community law, even if such an impediment to the full effectiveness of community law were
only temporary. . . . [A] national court which is called upon, within the limits of its jurisdiction, to
apply provisions of Community law is under a duty to give full effect to those provisions, if necessarily refusing of its own motion to apply any conflicting provision of national legislation, even
if adopted subsequently, and it is not necessary for the court to request or await the prior setting
aside of such provision by legislative or other constitutional means.
See also C-348/89 Mecanarte-Metalúrgica da Lagoa v. Alfandega do Porto [1991] ECR I-3277:
The effectiveness of Community law would be in jeopardy if the existence of an obligation to
refer a matter to a constitutional court could prevent a national court hearing a case governed
by Community law from exercising the right conferred on it by Article 177 of the EEC Treaty to
refer to the Court of Justice questions concerning the interpretation or validity of Community
law in order to enable it to decide whether or not a provision of domestic law was compatible with
Community law. It must therefore be stated . . . that a national court which in a case concerning
Community law declares a provision of national law unconstitutional does not lose the right or
escape the obligation under Article 177 of the EEC Treaty to refer questions to the Court of Justice
on the interpretation or validity of Community law by reason of the fact that such a declaration
is subject to a mandatory reference to the constitutional court.
47
The saga is indeed multilevel: during a proceeding initiated by Mr. Melki and Mr. Abdeli, two Algerians,
illegally residing in France. They were arrested and put in detention after a police control carried out in an
area close to the Belgian border, on the basis of art. 78-2, ¶ 4 of the French Code of Criminal Procedure.
Multiple loyalties and dual preliminarity
preliminary question to the ECJ, asking
whether article 267 TFEU precludes legislation such as that resulting from the
French reform “in so far as those provisions
require courts to rule as a matter of priority
on the submission to the Conseil constitutionnel of the question on constitutionality
referred to them, inasmuch as that question relates to whether domestic legislation,
because it is contrary to European Union
law, is in breach of the Constitution?”48
Before the ECJ pronounced on this matter, the French Conseil Constitutionnel
(on May 12, 2010)49 interpreted this provision in a manner consistent with the
Simmenthal and Cartesio doctrines. In June
2010, the ECJ decided to take into account
the decision of the Conseil Constitutionnel
(C-188/10)50 which had in the meantime
attempted to give an interpretation of the
legislation consistent with EU law and
with the ECJ’s case law.
The decision of the ECJ (June 2010) in
this respect was only the last episode of a
48
49
50
881
multilevel saga which involved all the judicial levels in the EU. In this decision the ECJ
concluded that:
Article 267 TFEU precludes Member State
legislation which establishes an interlocutory procedure for the review of the
constitutionality of national laws, in so
far as the priority nature of that procedure prevents—both before the submission of a question on constitutionality to
the national court responsible for reviewing the constitutionality of laws and,
as the case may be, after the decision of
that court on that question—all the other
national courts or tribunals from exercising their right or fulfilling their obligation
to refer questions to the Court of Justice
for a preliminary ruling. On the other
hand, Article 267 TFEU does not preclude
such national legislation, in so far as the
other national courts or tribunals remain
free:
• to refer to the Court of Justice for
a preliminary ruling, at whatever
stage of the proceedings they consider appropriate, even at the end
The judge deciding on provisional detention decided to refer to the Cour de Cassation (as we know the
French Constitutional Reform gave the Cour de Cassation and the Conseil d’État a role of filter of the questions raised by the lower courts) the a question concerning the consistency with the French Constitution
of the possibility to check the identity of persons in a border area. The referring judge had in mind art.
88-1 of the Constitution, which reads: “The Republic shall participate in the European Union constituted
by States which have freely chosen to exercise some of their powers in common pursuant to the [Treaties],”
in so far as Union law ensures the absence of internal border controls for persons. The Cour de Cassation
deciding on the possibility to pass the question to the French Conseil Constitutionnel, aware of the consequence on European Union law of a decision like that and doubting the mechanism of the priority of the
constitutional question devised by the French Reform, raised a preliminary reference to the ECJ. See Case C-189/10: Reference for a preliminary ruling from the Cour de Cassation (France) lodged
on 16 April 2010—Criminal proceedings against Sélim Abdeli, available at http://eur-law.eu/EN/
Case-C-189-10-Reference-preliminary-ruling-Cour,449081,d.
Conseil Constitutionnel, décision no. 2010-605 DC (May 12, 2010), http://www.conseil-constitutionnel.
fr/decision//decision-n-2010-605-dc-du-12-mai-2010.48186.html.
F. Donnat, La Cour de Justice et la QPC: chronique d’un arrêt imprévisible et imprévu [The Court of
Justice and the “Priority Preliminary Ruling on Constitutionality”: The History of an Unforseeable and
Unforeseen Ruling], 26 Recueil Dalloz 1640 (2010); Federico Fabbrini, La Corte di Giustizia si pronuncia sulla “legittimità comunitaria” del nuovo modello di giustizia costituzionale francese [The European
Court of Justice Rules on the Consistency of the New Model of French Constitutional Review of
Legislation with EU Law], 4 Quad. Cost. 840 (2010); D. Sarmiento, L’affaire Melki: esquisse d’un dialogue
des juges constitutionnels et européens sur toile de fond française [The Melki Case: Outline of a Dialogue
between Constitutional and European Judges against the French Background], 3, Revue trimestrielle de
droit européen 588 (2010).
882
I•CON 10 (2012), 871–896
of the interlocutory procedure for
the review of constitutionality,
any question which they consider
necessary,
• to adopt any measure necessary to
ensure provisional judicial protection of the rights conferred under
the European Union legal order, and
• to disapply, at the end of such
an interlocutory procedure, the
national legislative provision at
issue if they consider it to be contrary to European Union law.51
The ECJ concluded that it was up to
the referring judge to verify whether
the national legislation could be interpreted in accordance with the provisions
of European Union law. In doing so, as
anticipated, the ECJ exploited the interpretation given a few weeks before its
pronouncement by the French Conseil
Constitutionnel. The Cour de Cassation,
lastly, drew its own conclusions from
the Melki judgment and decided not to
refer the question of constitutionality
to the French Conseil Constitutionnel.
More generally, in France, the Cour de
Cassation was strongly criticized52 and
accused of having exploited the question
to challenge the reform of the constitutionality system.
At the same time, still in Melki, the
ECJ pointed out the necessity to respect
51
52
53
54
the “essential characteristics of the system of cooperation between the Court
of Justice and the national courts.”53 It
specified that under no circumstances is
it possible to infer from the judgment of a
constitutional court—for example in proceedings regarding the constitutionality
of national legislation implementing a
directive—declaring the unconstitutionality of the national legislation the invalidity of the supranational directive, since
this would result in a violation of the Foto
Frost doctrine.54
A few months later, the ECJ dealt with
a similar case raised by a Belgian court.
In March 2011, ECJ declared the case
inadmissible because there was no link
with EU law.55 In Belgium, the special law
of July 12, 2009 amended article 26 of
the special law of January 6, 1989 regulating the Cour d’Arbitrage (now Cour
Constitutionnelle). Basically, the Belgian
legislation now provides that, in case of
a conflict between one of the acts listed
in article 134 of the Belgian Constitution
and a fundamental right guaranteed by
Title II of the Constitution or by an EU law
or international provision, the national
judges shall first of all refer to the Belgian
Constitutional Court the question concerning the conflict between the normative act and Title II of the Constitution:
Melki, supra note 7.
On this debate, see F. X. Millet, La “question prioritaire de constitutionnalité” e il dialogo a singhiozzo tra
giudici in Europa [The “Question Prioritaire de Constitutionnalité” and the On–Off Judicial Dialogue in
Europe], 2 Giornale di diritto amministrativo 139 (2011).
Melki, supra note 7, at 51.
314/85 Foto-Frost [1987] ECR 4199:
It should also be observed that the priority nature of an interlocutory procedure for the review of
the constitutionality of a national law, the content of which merely transposes the mandatory provisions of a European Union directive, cannot undermine the jurisdiction of the Court of Justice
alone to declare an act of the European Union invalid, and in particular a directive, the purpose of
that jurisdiction being to guarantee legal certainty by ensuring that EU law is applied uniformly.
55
C-457/09, Chartry (Mar. 1, 2011), unreported, http://curia.europa.eu/juris/liste.jsf ?language=en&
num=C-457/09.
Multiple loyalties and dual preliminarity
this way, the special law of July 12, 2009
seems to imply the primacy of the question
of constitutionality.56
In Chartry, the ECJ declared the case
inadmissible because there was no link
with EU law. In order to understand what
the ECJ meant it is necessary to look at
the preliminary question as formulated
by the referring judge:
Do Article 6 [EU] and Article 234 [EC]
preclude national legislation, such as the
Law of 12 July 2009 amending Article 26
of the Law [on the Constitutional Court],
from requiring the national court to make
a reference to the Constitutional Court
for a preliminary ruling, if it finds that a
citizen taxpayer has been deprived of the
effective judicial protection guaranteed
by Article 6 of the European Convention
for the Protection of Human Rights and
Fundamental Freedoms, as incorporated
into Community law, by another national
law, [namely] Article 49 of the Law ... of
9 July 2004, without that national court
56
883
being able to ensure immediately the
direct [effect] of Community law [in the]
proceedings before it and without being
able also to carry out a review of its compliance with the Convention where the
Constitutional Court has recognised the
compatibility of the national legislation
with the fundamental rights guaranteed
by Title II of the [Belgian] Constitution?
Keeping in mind that the judge was referring to the pre-Lisbon wording of Art 6 of
the European Union Treaty (TEU),57 one
can easily see how poorly this preliminary
question was formulated, since it implied
the incorporation of the ECHR into EU law,
which is still far from being accomplished.
Even after the Lisbon Treaty came into
force, which, according to the wording
of article 6 TEU (new version),58 requires
the accession of the EU to the ECHR, this
accession will be carried out as a lengthy
process—one which is far from being
concluded at present.59
On the impact of the Melki case on the Belgian case see Patricia Popelier, Belgium. The supremacy dilemma:
the Belgian Constitutional Court caught between the European Court of Human Rights and the European Court
of Justice, in Human rights protection in the European legal order: The interaction between the European and the
national courts 149, 164 (Patricia Popelier, Catherine Van de Heyning, & Piet Van Nuffel eds., 2011):
It can be argued that the Belgian legislation can be interpreted in conformity with the conditions identified in the Melki case. Indeed the obligation to refer a preliminary question to the
Constitutional Court does not prevent the court from lodging another preliminary question
before the ECJ. Also the law allows the referring court to adopt provisional measures to ensure
judicial protection of the rights conferred under the European Union legal order. Lastly the priority given to the Constitutional Court does not prevent the courts and tribunals to review an Act
of Parliament against international or EU law of their own accord, even if in doing so they might
contradict the Constitutional Court.
57
Art. 6 TEU, ¶ 2 (pre-Lisbon Treaty):
The Union shall respect fundamental rights, as guaranteed by the European Convention for the
Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950
and as they result from the constitutional traditions common to the Member States, as general
principles of Community law. 58
Id.:
The Union shall accede to the European Convention for the Protection of Human Rights and
Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.
59
Moreover, even after accession has been concluded, it will up to the ECJ to decide whether the ECHR
will be incorporated into EU law or not. Looking at the ECJ case law devoted to international treaties
concluded by the European Communities one can see how the ECJ has sometimes limited the perfect
884
I•CON 10 (2012), 871–896
It was thus very easy for the ECJ to
avoid the “trap” of a judicial clash with
the Belgian Constitutional Court. Since
the question raised by the national
judge in this case did not regard the EU
law provisions stricto sensu conceived,
the Luxembourg Court concluded that
it was not competent to deal with the
preliminary question.60 In doing so, the
ECJ recalled article 51 of the Charter of
Fundamental Rights of the EU, stressing how the Charter is “addressed to
the institutions and bodies of the Union
with due regard for the principle of subsidiarity and to the Member States only
when they are implementing Union
law.”61
60
3. The constitutional
courts’ perspective: dual
preliminarity as a technique
of hidden dialogue
In the previous sections, we saw how
dual loyalty and dual preliminarity can
create tensions among the interpreters
in the multilevel legal order. This section
is devoted to dual preliminarity as a particular technique of dialogue. In order
to present this idea, I will introduce my
conception of “dialogue,” and then I will
present dual preliminarity as one of the
techniques of a particular kind of dialogue that I have labeled elsewhere as the
“hidden dialogue.”62
assimilation between “EC law proper” and “Community Agreements.” Moreover, recently, the ECJ has
extended the “WTO exception” (lack of direct effect for WTO law) to the provisions of some other international law treaties. On this see Marco Bronckers, From “Direct effect” to “muted dialogue”: Recent
Developments in the European Courts’ Case Law on the WTO and Beyond, 11(4) J. Int’l Econ. L. 885
(2004).
See Chartry, supra note 55, at 25–26:
Or, si le droit à un recours effectif, garanti par l’article 6, paragraphe 1, de la CEDH, auquel se réfère
la juridiction de renvoi, constitue un principe général du droit de l’Union (voir, notamment, arrêt
du 16 juillet 2009, Der Grüne Punkt—Duales System Deutschland/Commission, C-385/07 P, Rec.
p. I-6155, points 177 et 178) et a été réaffirmé à l’article 47 de la charte, il n’en demeure pas moins
que la décision de renvoi ne contient aucun élément concret permettant de considérer que l’objet du
litige au principal présente un rattachement au droit de l’Union. Le litige au principal, qui oppose
un ressortissant belge à l’État belge à propos de la taxation d’activités exercées sur le territoire de
cet État membre, ne présente aucun élément de rattachement à l’une quelconque des situations
envisagées par les dispositions du traité relatives à la libre circulation des personnes, des services ou
des capitaux. En outre, ledit litige ne porte pas sur l’application de mesures nationales par lesquelles
l’État membre concerné mettrait en œuvre le droit de l’Union. . . . Il s’ensuit que la compétence de la
Cour pour répondre à la présente demande de décision préjudicielle n’est pas établie.
61
A similar interpretation of art. 51 had been used by the same Court in the McB case, where the ECJ interpreted art. 51 of the Charter in a very restrictive way, by showing great deference towards the member
states’ legislation and competences. See C-400/10 PPU, McB www.curia.europa.eu, at 51–52:
First, according to Article 51(1) of the Charter, its provisions are addressed to the Member States
only when they are implementing European Union law. Under Article 51(2), the Charter does not
extend the field of application of European Union law beyond the powers of the Union, and it does
not “establish any new power or task for the Union, or modify powers and tasks as defined in the
Treaties”. Accordingly, the Court is called upon to interpret, in the light of the Charter, the law of
the European Union within the limits of the powers conferred on it.
It follows that, in the context of this case, the Charter should be taken into consideration solely
for the purposes of interpreting Regulation No. 2201/2003, and there should be no assessment
of national law as such. More specifically, the question is whether the provisions of the Charter
Multiple loyalties and dual preliminarity
Despite its importance in the economy of the evolution of EU law, the preliminary ruling mechanism does not
exhaust all the forms of dialogue that
can be used by courts in the multilevel
legal system. In this section, I am going
to outline the particular nature of judicial interactions involving constitutional
courts—normally considered (and considering themselves) as something different from the “common” courts and
whose judges are often described as
“negative legislators”63—and the ECJ.
As I will explain, these interactions are
different from, for example, the interactions between the ECJ and the common
national judges, due to their more evidently competitive nature.
885
A terminological caveat should be
made at this point. The metaphor of the
dialogue has been widely used in the literature and it is variously understood in
different context: as a vehicle for transplants, an informal means of communication between judicial and political
bodies, or a new paradigm of judicial
relations between actors not belonging to
the same legal order.64 Recently, certain
authors65 have attempted better to define
the essence of the idea of the “dialogue”
by identifying some key elements that
should be present when talking about
a proper dialogue. However, this notion
is still considered by many authors as
misleading and foggy.66 For all these reasons, I am going to adopt a more neutral
preclude the interpretation of that regulation set out in paragraph 44 of this judgment, taking
into account, in particular, the reference to national law which that interpretation involves.
62
63
64
65
66
Martinico, Judging, supra note 4.
Hans Kelsen, Wer soll der Hüter der Verfassung sein? [Who Should Be the Guardian of the
Constitution?],VI(11–12) Die Justiz 576 (1930–31). See the different contributions collected in the volume Filippo Fontanelli, Giuseppe Martinico, & Paolo
Carrozza eds., Shaping Rule of Law through Dialogue: International and Supranational Experiences (2009).
On dialogue as a vehicle for legal transplants, see Daphne Barak-Erez, An International Community
of Legislatures?, in The Least Examined Branch: The Role of Legislatures in the Constitutional State 532
(Richard Bauman & Tsvi Kahana eds., 2006). The literature on judicial dialogue is very large. See, e.g.,
Sabino Cassese, La funzione costituzionale dei giudici non statali. Dallo spazio giuridico globale all’ordine
giuridico globale [The Constitutional Function of Non-State Judges. From the Global Legal Space to
the Global Legal Order], 3 Rivista trimestriale di diritto pubblico 609 (2007); Yuval Shany, The Competing
Jurisdictions of International Courts and Tribunals (2003) [hereinafter Competing jurisdictions]; Yuval
Shany, Regulating Jurisdictional Relations between National and International Courts (2007) [hereinafter
Regulating jurisdictional Relations]; Claire L’Heureux-Dube, The International Judicial Dialogue: When
Domestic Constitutional Courts Join the Conversation, 114 Harv. L. Rev. 2049 (2001); Anne-Marie
Slaughter, A Global Community of Courts, 44 Harv. Int’l L. J. 191 (2003); S. Choudry, Globalization in
Search of Justification: Towards a Theory of Comparative Constitutional Interpretation, 74(3) Ind. L. J.
819, 821 et seq. (1999); Christopher. McCrudden, A Common Law of Human Rights? Transnational
Judicial Conversations on Constitutional Rights, 20(4) Ox. J. Legal Stud. 499 (2000); Alec Stone Sweet,
On Law, Politics and Judicialization (2002); Alec Stone Sweet, Governing with Judges: Constitutional Politics
in Europe (1992); Anne-Marie Slaughter, Judicial Globalization, 40 Va. J. Int’l L. 1104 (2000); Ran
Hirschl, Towards Juristocracy, the Limits and the Consequence of the New Constitutionalism (2004); Neal.
Tate & Torbjorn. Vallinder eds., The Global Expansion of the Judicial Power (1995); Maria Rosaria Ferrarese,
When National Actors Become Transnational: Transjudicial Dialogue between Democracy and
Constitutionalism, 9 Global Jurist Frontiers 1 (2009).
Aida Torres Perez, Conflicts of Rights in the European Union: A Theory of Supranational Adjudication
118–130 (2009).
See, e.g., Giuseppe de Vergottini, Oltre il dialogo fra le Corti [Beyond Judicial Dialogue] (2010). 886
I•CON 10 (2012), 871–896
language in describing “judicial interactions,” i.e., episodes of contact (intentional or casual) between courts that may
differ in their degree of intensity, results,
and typology. Against this background,
“dialogue” can be conceived as a species
of the genus “judicial interaction,” characterized by the presence of some specific
features, namely the existence of differing
viewpoints, symmetry between the interlocutors (i.e., lack of complete authority
of one over the other), mutual recognition and respect, equal opportunity to
participate, and continuity over time.67
Under the notion of “dialogue,” Luc
Tremblay proposed an interesting distinction between dialogue as a conversation
and dialogue as deliberation. The former
implies a conversation that does not aim
at reaching a specific, pre-determined goal;
this is the case of a casual meeting between
friends having a small talk. Dialogue as
deliberation, on the other hand, is conducted with a specific purpose in mind,
namely arriving at a mutual agreement or
67
68
69
70
71
solving problems collectively.68 In this context, even “conflicts” (and constitutional
conflicts69 in particular) can be traced
back to the idea of judicial interactions.70
Within this macro-group, I am going to
distinguish between cooperative and competitive judicial interactions by specifying
the particular features of the second type.
In order to introduce the idea of competitive judicial interactions, it is necessary to adopt the idea of constitutional
pluralism, understood as a context which
normally favors the emergence of interpretative competition.
3.1. Constitutional pluralism and
interpretive competition:
dual preliminarity as a technique
of hidden dialogue
In its simplest version, constitutional
pluralism refers to a situation where
several constitutional sites coexist, each
claiming authority.71 The existence of
such multiple poles of constitutionalism,
For this conception of judicial dialogue, see Torres Perez, supra note 65, at 118–130.
Luc B. Tremblay, The Legitimacy of Judicial Review: The Limits of Dialogue between Courts and
Legislatures, 3(4) Int’l J. Const. L. 617 (2005).
On constitutional conflicts, see Matthias Kumm, The Jurisprudence of Constitutional Conflict:
Constitutional Supremacy in Europe before and after the Constitutional Treaty, 11(3) Eur. L.J. 262 (2005).
On the importance of conflicts in pluralistic systems see: Daniel Halberstam, Constitutional Heterarchy:
The Centrality of Conflict in the European Union and the United States, in In Ruling the World?
Constitutionalism, International Law and Global Governance 326 (J. Dunoff & J. Trachtman eds., 2009).
On constitutional pluralism see Neil Walker, The Idea of Constitutional Pluralism, 65(3) Mod. L. Rev.
317 (2002); Miguel Poiares Maduro, Contrapuntual Law: Europe’s Constitutional Pluralism in Action,
in Sovereignty in Transition 501 (Neil Walker ed., 2003); Miguel Poiares Maduro, Interpreting European
Law: Judicial Adjudication in a Context of Constitutional Pluralism, 1(2) Eur. J. Legal Stud. 2 (2007),
http://ejls.eu/index.php?mode=htmlarticle&filename=./issues/2007–12/MaduroUK.htm. For a comparison of the different visions of constitutional pluralism, see Matej Avbelj & Jan Komárek eds., Four
Visions of Constitutional Pluralism, EUI Working Paper No. 2008/21, http://cadmus.iue.it/dspace/bitstream/1814/9372/1/LAW_2008_21.pdf. For a different concept of pluralism conceived of as being in
opposition to that of constitutionalism, see Nico Krisch, Europe’s Constitutional Monstrosity, 25 Ox. J. Legal
Stud. 321 (2005). See also Sionaidh Douglas-Scott, Constitutional Law of the European Union 523–530
(2002); Jan Komárek, Institutional Dimension of Constitutional Pluralism, Eric Stein Working Paper
No. 3/2010, www.ericsteinarticles.eu/articles/2010/3.html; G. Davies, Constitutional Disagreement in
Europe and the Search for Pluralism, Eric Stein Working Article No. 1/2010, www.ericsteinpapers.eu/
papers/2010/1.html; Alexander Somek, The Emancipation of Legal Dissonance, U. of Iowa Legal Studies
Research Paper No. 09-02, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1333194. Multiple loyalties and dual preliminarity
coupled with the absence of clear interpretative sovereignty, results in the form
of interpretative competition that nourishes the relationship between the ECJ
and the domestic courts, especially the
Constitutional Courts.72 Indeed, both
constitutional courts and the ECJ conceive
of their own reference documents (the
national constitutions and the European
treaties, respectively) as the supreme law
and claim ultimate authority for them.
This context is described as interpretative
competition and it represents the judicial and dynamic side of the struggle for
sovereignty. Confirmation of this interpretative competition can be seen in the
endeavor of some Constitutional Courts
to avoid the preliminary ruling through
attempts to create a parallel and alternative way of communicating with the
ECJ.73
From the domestic courts’ perspective,
there are two ways of interacting with
the ECJ. One is the “official” route provided by article 267 TFEU (although this
is entirely governed by the interpretative
rival, the ECJ). The other is the parallel
and informal route whose dynamics are
mostly discretionary, where both the procedures and the outcome of such interaction can be negotiated. Constitutional
courts have historically preferred the
latter method, and one can easily understand why, if we evoke, once again, the
idea of interpretive competition.
Given the fact that the game within the
ambit of the preliminary ruling is governed by the European treaties, which
72
73
74
75
76
887
represent the fundamental charters of
the competitor (the ECJ), national courts
should experience a loss of interpretative
sovereignty. All the competitive interactions (which represent the informal
method of communication) have been
shaped and negotiated among courts,
and their extreme flexibility reflects their
origins. These interactions are competitive because they originate in the desire
to preserve the status of the constitutional courts. Marta Cartabia74 explained
this idea well when describing the case
of Italy. In this context, constitutional
judges might be seen as very proud
actors, jealously preserving their status
as constitutional guardians; they view
themselves as champion horses who do
not want to participate in an ordinary
competition. They are not “common”
judges; their mission is particular and
their autonomy is perceived as a guarantee of the constitutional autonomy
of the legal order. This profile, called the
“institutional issue,” can be partly distinguished from the second motivation
which has inspired national constitutional courts over the years: the “axiological issue,” i.e., the necessity to preserve
a certain standard in the protection of
fundamental rights, here understood as a
“constitutional good” (this would be the
Solange75 position)76.
As we know, many constitutional
courts do not consider themselves as
“judges” on the basis of article 267
TFEU (former art. 234 of the TEC) and
have always refused to refer questions
On inter-court competition as a key to reading the relationship between judges, see the fundamental work
by Alter, supra note 3.
Martinico, Judging, supra note 4.
Marta Cartabia, Principi inviolabili e integrazione europea (1995) [hereinafter Principi].
Solange I, supra note 42.
Cartabia, Principi, supra note 74.
888
I•CON 10 (2012), 871–896
to the ECJ, despite the orientation of the
Luxembourg court.77 In order to play in a
more neutral field, constitutional courts
have traditionally preferred to take the
game outside the preliminary ruling
mechanism. Sometimes they do this simply by avoiding any form of communication with the ECJ (in which case, there is
judicial interaction without dialogue),
sometimes by threatening with constitutional conflicts (the “counter-limits”
argument). They do this either in order
to preserve their original position on a
given issue (in this case, the threat is used
as a means of preserving, in a merely
defensive manner, the constitutional
good at stake) or in order to force the
ECJ to change its original position (this
is an example of judicial interaction that
might be conducive to forms of judicial
bargaining and to judicial dialogue properly understood, the threat being used in
order to induce the interlocutor to accept
and agree about some constitutional
goods conceived as the necessary premise
for having a dialogue).
When assuming the physiognomy of
a real dialogue, interpretive competition can contribute to the discussion as
to which kind of Europe “we wish for,”
favoring a sort of convergence between
the original positions of the interlocutors,
77
78
79
80
81
82
83
84
discussion in a context of symmetry
(i.e., lack of complete authority over
the other), and mutual recognition and
respect. This competitive framework
enables constitutional courts to communicate with the ECJ in a position of symmetry, with the specific aim of balancing
the two types of constitutional goods at
stake: respect for the primacy of EC (and
after Lisbon, EU) law and for national
constitutional identity. What I would like
to stress now is that all the competitive
interactions mentioned above are voluntary in nature, and therefore develop
within a framework of spontaneous
practices. Based on a need for peaceful
collaboration, rather than on formal obligation, the attitude of the constitutional
courts closely resembles the definition of
judicial comity as employed in international law scholarship.78
Constitutional Courts have been progressively accepting the cooperative
mechanism set up by article 267 TFEU.
The Constitutional Courts of Belgium,79
Austria,80 Lithuania,81 Italy,82 and, Spain83
have agreed to make a preliminary reference to the ECJ. In spite of this, even today,
the majority of constitutional courts
do not seem to accept the cooperative
mechanism set up by Article 267 TFEU.84
However, before criticizing constitutional
C-54/96 Dorsch Consult Ingenieursgesellschaft v. Bundesbaugesellschaft Berlin [1997] ECR I-4961.
Shany, Regulating Jurisdictional Relations, supra note 64, at 172–175; Shany, Competing Jurisditions, supra
note 64, at 260
Cour d’Arbitrage, dec. no. 6/97, Feb. 19, 1997, http://www.const-court.be/.
VfGH, B 2251/97, B 2594/97, Mar. 10, 1999, www.vfgh.gv.at/cms/vfgh-site.
Case 47/04 Lietuvos Respublikos Konstitucinis Teismas (May 8, 2007), www.lrkt.lt/dokumentai/2007/
d070508.htm. Corte Costituzionale, sent. no. 102/2008, available at http://www.giurcost.org/decisioni/2008/0102s08.html; Corte Constituzionale, ord. no. 103/2008, available at http://www.giurcost.org/decisioni/
2008/0103o-08.html. The preliminary reference was raised during principaliter proceedings.
S.T.C., June 9, 2011 (86/2011) (Spain), http://www.tribunalconstitucional.es/es/jurisprudencia/Paginas/
Auto.aspx?cod=10386.
Giuseppe Martinico, Preliminary reference and constitutional courts: Are you in the mood for dialogue?,
TICOM Working Paper, 10/2009, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1483664. Multiple loyalties and dual preliminarity
courts because they do not seem to be
“interested” in the opportunities offered
by the preliminary reference mechanism,
one should take into account the existence
of parallel forms of dialogue devised and
exploited over the years by these domestic judges in order to establish communications with the ECJ. This does not mean
constitutional courts have never sought
interaction with the ECJ. On the contrary,
the literature has emphasized the risk
of conflict between them and the ECJ (as
mentioned above, the idea of the “judicial
conflict” belongs to the genus “judicial
interactions”). Less frequently, scholars
have acknowledged the efforts made by
constitutional courts in order to go beyond
mere “contact” with the ECJ, attempting
to build a dialogue properly understood.
Elsewhere, these interactions conducted by
the constitutional courts were described by
the formula “hidden dialogue.”85 Basically,
the term “hidden” refers to the origin of
such a dialogue: this dialogue is hidden
because it is not formalized according to
the wording of the European Treaties (it
is non-codified). It is hidden because it is
“unexplored” by the literature (which has
paid attention to the preliminary ruling
mechanism). Finally, it is hidden because
it represents an alternative channel of
85
889
dialogue if compared with the “official”
route represented by the machinery set up
by article 267 TFEU. Hidden dialogue demonstrates how even actions and behaviors
conceived with competitive spirit can have
a systemic impact, resulting in a contribution to the modification of some of the fundamental principles of the system (here
understood as the multilevel legal order).
Among these dialogic techniques, one
may recall that of dual preliminarity and a
confirmation of this intuition can be found
looking at the Italian case. From their perspective, according to the technique of
dual preliminarity, national constitutional
courts could be asked to solve a question
of constitutionality regarding a domestic
norm in cases where such a question is
strongly related to another preliminary
ruling question referred to the ECJ at the
same time regarding the meaning/validity
of an EU act. How should these two parallel
proceedings be coordinated? How should
the two courts interact in such cases?
Looking at the case of Italy, should
these two questions be closely related, the
Italian Constitutional Court could decide
either to return the question (declaring
it “inadmissible”) to the ordinary judge
(decision no. 536/1995)86 or to “wait
for” the ECJ to pronounce before giving
I have called these alternative modes of dialogue “hidden dialogue.” See Martinico, Judging, supra note
4. See also FilippoFontanelli & Giuseppe Martinico, Focusing on courts: The techniques of hidden dialogue in the multilevel system, in The Evolution of the European Courts: Institutional Change and Continuity.
Proceedings of the 6th International Workshop for Young Scholars (WISH) 37 (Francis Snyder ed., 2010);
Giuseppe Martinico & Oreste Pollicino, Between Constitutional Tolerance and Judicial Activism: The
“specificity” of the European judicial law, in 1 Eur. J. L. Reform 97 (2008).
Schematically, we have identified the following techniques of hidden dialogue:
(a) introduction of a new step in the hierarchy of legal sources;
(b) distinction between “primacy” and “supremacy”;
(c) admissibility of recurso de amparo against the domestic judges’ refusal to raise the preliminaryruling;
(d) acknowledgment of erga omnes effects for ECJ’s interpretive rulings;
(e) dual preliminarity (doppia pregiudizialità);
(f) distinction between disapplication and non-application.
86
See ord. no. 536/1995, supra note 33. 890
I•CON 10 (2012), 871–896
judgment (decision no. 165/2004).87 As
we can see, dual preliminarity is a technique by which the Italian Constitutional
Court acknowledges ‘priority’ to the ECJ
and to the art. 267 TFUE questions. At
the same time, it can function as a “safety
valve,” since it avoids a conflict with the
ECJ with regard to the possible violation of
counter-limits. In the Berlusconi case,88 for
example, the Italian Constitutional Court
(decision no. 165/2004) waited for the
ECJ’s answer, preparing itself for a decision that potentially could be incompatible with one of its fundamental principles,
namely the principle of favor rei. Thanks
to dual preliminarity, the Italian Court
87
88
allowed the ECJ to decide whether to take
the risk of a jurisdictional “clash” or not.
On the other hand, perhaps one can read
the Berlusconi case as an attempt to avoid
such a danger and as a chance to show the
maturity of the EU system with regard to
fundamental rights.
Since, in that particular case, the ECJ
stated that “the principle of the retroactive application of the more lenient
penalty forms part of the constitutional
traditions common to the Member
States,”89 the Italian Constitutional
Court, in light of this decision, decided to
return its own question of constitutionality to the referring judge.90 Thanks to dual
Corte Costituzionale, ord. no. 165/2004, available at http://www.giurcost.org/decisioni/2004/
0165o-04.html. Berlusconi, supra note 6 This case was about the interpretation of some Companies Directives. The ECJ
dealt with three questions: concerning the scope of protection of the Directive 68/151; the interpretation of the requirement that the penalty must be effective, proportionate, and dissuasive; and the compatibility of the new Italian discipline introduced in the Civil Code (arts. 2621 and 2622) with EU law.
See also Flaminia Tacconi, Casenote—Berlusconi at the European Court of Justice—C-387/02, 7(3)
German L.J. 313, 314 (2006):
The Italian Courts introduced three main questions. Since the First Council Directive 68/151/
EEC did not deal explicitly with publication of false accounting but rather with the mere disclosure of accounting, the Italian Courts asked whether the offence of publicizing false accounting
was covered by the First Companies Directive. Secondly, the Courts asked whether the new Italian
provisions were compatible with Article 6 of the Fourth Companies Directive 78/660/EEC.
Finally, the Italian Courts asked whether the sanctions introduced by the new legislation could
be considered as effective, proportionate and dissuasive sanctions for the breaching of EC law.
At the same time some questions of constitutionality regarding the Italian discipline were raised to the
Italian Constitutional Court. Since many of them were strongly connected to the ECJ decision, the Italian
Corte Costituzionale decided to wait for this pronouncement before judging on the constitutionality of
arts. 2621 and 2622 of the Italian Civil Code. 89
Berlusconi, supra note 6, at 68. The passage is actually ambiguous since the ECJ went on to say, id. at 69–71:
It follows that this principle must be regarded as forming part of the general principles of Community
law which national courts must respect when applying the national legislation adopted for the
purpose of implementing Community law and, more particularly in the present cases, the directives on company law. The ability to rely on the First Companies Directive. The question none the
less arises as to whether the principle of the retroactive application of the more lenient penalty
applies in the case in which that penalty is at variance with other rules of Community law. It is,
however, unnecessary to resolve that question for the purpose of the disputes in the main proceedings as the Community rule in issue is contained in a directive on which the law-enforcement
authorities have relied against individuals within the context of criminal proceedings.
90
Corte Costituzionale, ord. no. 70/2006, available at http://www.giurcost.org/decisioni/2006/0070o-06.
html. The decision was also due to reasons of ius superveniens since the provisions at stake had been in
the meantime modified by the intervention of the legislator. Multiple loyalties and dual preliminarity
preliminarity, the Italian Constitutional
Court granted the last say on a possible
conflict to itself. The preliminary ruling
can function as a gun on the table in
order to put pressure on the ECJ in cases
of possible violation of counter-limits
(the fundamental principles according to
the Italian Constitutional Court).
What can we learn from this case?
Firstly, even in those contexts that
present very sophisticated systems of
judicial cooperation, there is room for
judicial comity. The way the Italian
Constitutional Court solved the procedural issue of dual preliminarity clearly
resembles the idea of judicial comity as
formulated by public international lawyers: the presence of two parallel but
related proceedings, the absence of a formal provision for governing them and,
finally, the exercise of judicial discretion for devising a connection between
them. Secondly, the pattern of dialogue
designed by the wording of the Treaties
(namely art. 267 TFEU) does not cover
all the forms of judicial conversation
possible between national courts and
the ECJ, dual preliminarity being just
one example of those alternative modes
of judicial dialogue.
Why alternative? Because at a closer
look, by using dual preliminarity, the
Constitutional Court: (1) avoided being
bound to the decision of the ECJ in case
of violation of a fundamental principle of
the Italian Constitution; (2) reached an
effect which might be defined as equivalent if compared with that pursued by the
91
891
preliminary mechanism, that is the stay
of proceedings, since it de facto blocked
the case pending before itself as it would
have done if it had referred a preliminary
reference to the ECJ under the letter of
article 267 TFEU. Mixing these two goals,
the Italian Corte Costituzionale succeeded
in respecting the effectiveness and the
authority of the ECJ without giving up
the constitutional supremacy and the
counter-limits doctrine, whose application is conceived as a last resort, exploitable only in the case of direct violation of
the untouchable core of the Constitution.
The Berlusconi case demonstrates how
dual preliminarity is perceived by common judges. Both of these two preliminary questions (that of constitutionality
and that regarding the interpretation/
validity of EU law) can be used in order to
obtain the same (desired) effect: obtaining a determination from a higher court
in order to set aside a norm which, in
the economy of a particular case pending before themselves, is fundamental in
order to resolve the case. In this respect,
in order to obtain their goals ordinary
judges conceive these two preliminary
questions as two fungible bullets—
n­otwithstanding the different structure
and nature of these two preliminary
question­s—they can shoot to overcome
the impasse and resolve the case.
In fact, looking at both the preliminary
questions one can immediately notice
how they present the same object as the
Italian Constitutional Court expressly
recognized in its decisions.91
See ord. no. 165/2004, supra note 87; ord. no. 70/2006, supra note 90. This is fully understandable in
light of the inter-court competition theory. See Alter, supra note 3, at 242:
As I have argued elsewhere the ECJ is like a second parent in a battle where parental permission
wards off a potential sanction for misbehavior—if the lower court does not like what it thinks “Mom”
(the higher court) will say, it can go ask “Dad” (the ECJ) to see if it will get a more pleasing answer.
Having “Dad[’s]” approval increases the likelihood that its actions will not be challenged. If the lower
892
I•CON 10 (2012), 871–896
As noted above, dual preliminarity
belongs to the universe of the techniques of hidden dialogue. It is necessary to ask why the techniques of
hidden dialogue have been devised by
the national constitutional courts. The
spread of EU legislation and national
laws related to EU law necessitate an
extension of the interpretive domain of
the ECJ. Gaining access to interpretative
competition by attempting to contribute to the final outcome of interpretation is much better than a dangerous
wait, and entering the market of judicial transactions is convenient for the
Constitutional Courts because the risk
of isolation is too high. At the same
time, constitutional courts do not want
give up their particular status as sovereign interpreters of the constitution
(which, moreover, they consider as the
supreme law par excellence). How can
they combine these two needs? The
techniques of hidden dialogue (and
dual preliminarity does not depart from
this scheme) present some advantages
if compared with the formal route,
notably due to their flexible nature.92
The principle of comity is important
because it alleviates the difficult aspects
of jurisdictional competition by encouraging judges to accommodate related
procedures: “In other words, this principle
represents a strategy for soft coordination
and harmonization between the entire
gamut of jurisdictional configurations.”93
Although this “general legal principle”
was conceived with regard to interactions
between domestic courts, today it is used
to describe their jurisdictional relationship
with international law. Moreover, today
“the comity should arguably be acknowledged as a positive device in the promotion
of the systematic nature of international
law.”94 According to this scenario of judicial dialogue, policy considerations are
essential and, following the logic of constitutional bargaining, they reflect systemic choices which are influenced by the
system and, in turn, influence the system.
These flexible and voluntary techniques fit well with the competitive
relation existing between the ECJ and
constitutional courts. These actors are
characterized by different priorities and
still explain EU law primacy in two different ways.
For the constitutional courts primacy is the product of constitutional
self-limitation while, according to the
ECJ, it is the direct consequence of the
autonomy of EU law:95 they are competitors in a context characterized by a sort
of “agonistic pluralism.”
court does not think it will like what “Dad” will say, it simply does not ask. Lower courts can also play
high courts and the ECJ off against each other to influence legal development in a direction they prefer.
92
Fontanelli & Martinico, supra note 85. In Yuval Shany’s words:
While the status of judicial comity under positive international law (custom or general principle of
law) is somewhat unclear, it may derive its legal effect from courts’ inherent authority to manage
their proceedings in accordance with principles of justice and efficiency. . . . [A] related consideration supporting the extension of judicial comity is the need to promote uniform interpretation of
international treaties for the purpose of increasing their effectiveness as coordinative measures.
93
94
95
Shany, Regulating Jurisdictional Relations, supra note 64, at 172–175.
Shany, Competing jurisdictions, supra note 64, at 260.
Id. at 261. Against this background dialogue and competition should be conceived as compatible and these actors
should be conceived as rivals in a context which recalls what Mouffe “calls agonistic pluralism”:
Multiple loyalties and dual preliminarity
3.2. What is the future of the
techniques of hidden dialogue?
The final remarks of this article are
devoted to the possible destiny of these
alternative modes of judicial conversations
(including dual preliminarity) in the current context which has been characterized
893
by the gradual acceptance of the preliminary ruling mechanism by many constitutional courts. Their destiny will depend
on the specific reasons that have led some
constitutional courts to engage with the
preliminary ruling mechanism. In this
sense, the case of Italy is very significant
I use the concept of agonistic pluralism to present a new way to think about democracy which is
different from the traditional liberal conception of democracy as a negotiation among interests
and is also different from the model which is currently being developed by people like Jürgen
Habermas and John Rawls. While they have many differences, Rawls and Habermas have in
common the idea that the aim of the democratic society is the creation of a consensus, and that
consensus is possible if people are only able to leave aside their particular interests and think as
rational beings. However, while we desire an end to conflict, if we want people to be free we must
always allow for the possibility that conflict may appear and to provide an arena where differences can be confronted. The democratic process should supply that arena.
Chantal Mouffe in David Castle, Hearts, Minds and Radical Democracy. Interview with Ernesto
Laclau and Chantal Mouffe, Red Pepper (June 1998), http://www.redpepper.org.uk/hearts-mi
nds-and-radical-democracy. Among the thinker’s other works see Chantal Mouffe, The Return of the
Political (1993); Chantal Mouffe, The Democratic Paradox (2000); Chantal Mouffe, On the Political (2005).
Let me briefly elaborate this point. As shown above, over the years, there has been a partial convergence between the EU and national legal orders, but of course this process of rapprochement has
not ended (and nobody can predict whether and when it will be concluded). This explains cases
in which the Court of Justice has reached conclusions that appear aggressive or at least less sensitive with regard to national constitutional identity if compared with the solutions reached in Omega.
(I am alluding to such cases as: C-213/07, Michaniki (2008) ECR I-9999; C-34/09, Gerardo Luis
Zambrano, Office National dell’Emploi, (Mar. 8, 2011), unreported, http://curia.europa.eu/juris/liste.
jsf?language=en&num=C-34/09; C-173/09, Elchinov (Oct. 5, 2010), unreported, http://curia.europa.
eu/juris/liste.jsf?language=en&num=C-173/09). Mouffe’s theory can solve this prima facie judicial
schizophrenia of the ECJ by using the notion of conflictual consensus:
It needs what I call a “conflictual consensus”. We need to accept a common symbolic framework,
but within this symbolic framework, of course, there is room for disagreement. Let me give you an
example of what I mean by that. The common symbolic framework of modern pluralist democracy is the expression of “liberty and equality for all”. Those are its “ethico-political principles”.
Citizens in a pluralist democracy need to agree that those are the principles that are going to
inform their coexistence. But, of course, those shared principles can be interpreted in many different ways. After all, what is liberty? What is equality? And who belongs to this “all”? There are
many different interpretations of this last term alone, and we should accept the legitimacy of
those different interpretations.
Chantal Mouffe, Which Public Space for Critical Artistic Practices?, in Cork Caucus:
On Art, Possibility & Democracy 149 (Tara Byrne Cork, ed., 2006).
One could argue for the application of this scheme by saying that the partial convergence in the field of
fundamental rights has favored the emergence of a context characterized by the sharing of some fundamental rules between the supranational and national actors. Such fundamental rules work as the
natural premise of every form of interaction between the actors of the multilevel system, although their
existence does not preclude the presence of different interpretations.
In order to explain this situation, Mouffe uses the notion of “agonism,” which should be distinguished
from “antagonism”: the difference is based on the transformation of the Schmittian figure of the “enemy”
into that of “adversary,” that is to say, “somebody whose ideas we combat but whose right to defend those
894
I•CON 10 (2012), 871–896
and, in my view, confirms that the formal
(cooperative) and informal (competitive)
ways of dialogue can coexist. On April 15,
2008, for the first time in its history, the
Italian Constitutional Court agreed to
refer a preliminary question to the ECJ.96
This decision (no. 102/2008) presents elements of both continuity and rupture in
relation to previous Constitutional Court’s
case law. A point of continuity is the firm
distinction between principaliter and incidenter proceedings97 with specific regard to
the “use” of EC law in the activity of the
Italian Constitutional Court.
The judgment was pronounced in a
principaliter proceeding, where the Italian
Constitutional Court acts as the “true”
judge of the controversy, as opposed to
incidenter proceedings, where the “true”
judge of the question is the a quo (i.e.,
referring) national judge. Principaliter
proceedings represent one of the exceptions to the system of diffuse review
of consistency between domestic and
European law, according to which ordinary and administrative judges monitor
the consistency of domestic and EU law.
According to the decisions in cases no.
384/1994 and 94/1995,98 indeed, a centralized decision (i.e., made by the Italian
Constitutional Court) could be envisaged
when a question of consistency between
national and EC law was raised (both by
the regions and by the state) before the
Italian Constitutional Court via principaliter proceedings. In particular, in case
no. 384/1994, the Italian Constitutional
Court acknowledged that, due to the
particular dynamics of principaliter proceedings (where there is no role for the
ordinary judge who normally guarantees
respect for EC law), its refusal to rule on
such questions would have implied a dangerous gap in the protection of rights, and
a breach of the principle of legal certainty.
Therefore, one can say that, due to
the unique feature of principaliter proceedings, the possibility of involving
the Constitutional Court is justified only
because the ordinary judge, who is the
natural guardian of EU law primacy at
the domestic level, is totally absent from
the scene. This is not an irrelevant detail:
as we know, the role of common national
judges is fundamental both to the functioning of incidenter proceedings before
the Italian Constitutional Court and to
that of the preliminary reference mechanism before the ECJ. As noted above,
national judges are the “gatekeepers”
entrusted with the initiation of both proceedings, and their cooperation is essential to the work of both of the “higher”
courts (ECJ and Constitutional Courts). As
I described earlier, the technique of dual
preliminarity is based upon a judicial triangle: the national referring judge must
raise two related questions, to the ECJ and
ideas we do not put into question” (Mouffe, The Democratic Paradox, supra, at 102). On the Schmittian
influence see Onur Ulas Ince, The Return of the Schmittian: Radical Democratic Theory at its Limits
(Oct. 7, 2009), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1675583.
96
97
98
Corte Costituzionale, sent. no. 201/2008, available at http://www.giurcost.org/decisioni/2008/0201s-08.
html; ord. no. 103/2008, supra note 82. The decision commented upon is, instead, sent. no. 102/2008,
supra note 82, issued on the same day.
See ord. no. 103/2008, supra note 82. The decision commented upon is, instead, sent. no. 102/2008,
supra note 82, issued on the same day.
Corte Costituzionale, sent. no. 384/1994, available at http://www.giurcost.org/decisioni/1994/0384s-94.
html and sent. no. 94/1995, available at http://www.giurcost.org/decisioni/1995/0094s-95.htm.
Multiple loyalties and dual preliminarity
to the Constitutional Court respectively.
Obviously, this can only happen within
the framework of incidenter proceedings.
Apparently, this is not taken into consideration in the judgment of the Italian
Constitutional Court. I would argue
against an extension of the conclusions
reached by the Italian Corte Costituzionale
with regard to the principaliter proceedings to the incidenter proceedings. In the
logic of interpretive competition, such
an extension could lead to a loss of control over national common judges, fundamental actors for the activities of the
Italian Constitutional Court.
I do not think that the coming into force
of the Lisbon Treaty will change this scenario; on the contrary, it will be possible to
appreciate the emersion of similar dynamics in the former second and third pillars.99
Recently, there have been judicial decisions (especially coming from the German
side: both the already mentioned Lisbon
Decision100 and the Data Retention case101)
confirming the complicated relationship
between the Constitutional Courts and the
99
100
101
102
103
104
105
895
ECJ. All of this seems to confirm that judicial bargaining between these two actors
is still active and that the constitutional
guardians have not yet accepted (at least
not fully) the interpretive authority given
to the ECJ by the European treaties.
Nevertheless, it is too early to foresee
what will happen and nobody has the
crystal ball: in this respect it is worth
mentioning how the Melki case,102 which
might be described as inspired by a generous spirit of the ECJ towards the national
courts, actually represents a reaffirmation (although in a “milder” version) of
the Simmenthal doctrine103 and how the
ECJ probably declined to go a step further
since the corresponding constitutional
interlocutors have already solved the
issue. At the same time, as Millet pointed
out, the ECJ took the chance to point out
and strengthen the Foto Frost doctrine.104
However, constitutional courts have
not given up their counter-power mission, as ambivalent decisions such as
Honeywell105 demonstrate. On the one
hand, in that decision, the German Court
As we know, while in the first pillar the counter-limits bomb never exploded (and this might be seen
as a confirmation of the particular strength of the interpretative position of the ECJ in this context),
the third pillar knew some episodes of tension between the Constitutional Courts and the ECJ: the decisions of the Constitutional Courts of Poland (Trybunał konstytucyjny, P 1/05, http://www.trybunal.gov.
pl/eng/summaries/summaries_assets/documents/P_1_05_full_GB.pdf) and Germany (BVerfG, 2 BvR
2236/04 http://www.bverfg.de/entscheidungen/rs20050718_2bvr223604en.html). See also the decisions of the judges of courts in Cyprus (Ανώτατο Δικαστήριο, 294/2005, http://www.asser.nl/Default.
aspx?site_id=8&level1=10789&level2=10829&level3=10970) and the Czech Republic (Ústavní Soud,
Pl. ÚS 66/04, http://www.concourt.cz/view/pl-66-04), which have recalled the question of the ultimate
barriers in the field of the European arrest warrant. See also Jan Komárek, European constitutionalism
and the European Arrest Warrant: In search of the limits of contrapunctual principles, Jean Monnet
Working Paper, 10/05, www.jeanmonnetprogram.org/papers/05/051001.html.
Lisbon Case, BVerfG, 2 BvE 2/08, June 30, 2009, www.bundesverfassungsgericht.de/entscheidungen/
es20090630_2bve000208.html. Data Retention Case, BVerfG, 1 BvR 256/08, Mar. 2, 2010, www.bverfg.de/entscheidungen/
rs20100302_1bvr025608.html. Melki, supra note 7.
Millet, supra note 52, at 144. Foto-Frost, supra note 54.
Case 2 BvR 2261/06, Aug. 26, 2010.
896
I•CON 10 (2012), 871–896
acknowledged the possibility of a margin of error to the ECJ but, at the same
time, it has not renounced its role of
counter-power to the Luxembourg Court
106
in the process of European integration,
even in extraordinary circumstances,
and perhaps only after having “consulted” the ECJ.106
As Mayer pointed out, “an ultra vires-control of European acts by the German Constitutional Court
would only occur in extraordinary circumstances and obvious cases, and apparently a preliminary reference to the ECJ would have to take place first.” See Franz Mayer, Rashomon in Karlsruhe: A Reflection on
Democracy and Identity in The European Union. The German Constitutional Court’s Lisbon Decision and
the Changing Landscape of European Constitutionalism, 9(3–4) Int’l J. Const. L. 757, 763 (2011).