09 Januar 2013

Nuclear War between the Court of Justice and Czech Constitutional Court (hopefully) averted

There has been an incessant debate in the last decades which court holds the highest cards in the EU. Is it the Court of Justice or national courts, namely those of constitutional rank? It seems that the judges in Luxembourg argue for their primacy, while at least some of the national ones tend to disagree. Yet the judicial debate was all about dancing around with hints and threats and no direct conflict. No wonder theories such as constitutional pluralism began to dominate the academic discourse.

In January 2012 the Czech Constitutional Court ended the long truce when it declared in its decision Pl. ÚS 5/12 the Court of Justice decision C-399/09 Landtová ultra vires. The background and reasons for this judgment were summarized at this blog by Jan Komárek. For more detailed commentaries I could recommend case notes by Komárek in European Constitutional Law Review (2012, vol. 8, no. 2, pp. 323-337) or me in Common Market Law Review (2012, vol. 49, no. 4, pp. 1475-1492). To sum up analysis in CMLRev, I was highly critical of the Czech Constitutional Court argumentation and claimed that the attack on the Court of Justice was only a collateral damage in its war with the Supreme Administration Court over the Slovak pensions case-law. I however concluded that despite there were conceivable avenues how to further escalate the conflict, I hoped (and believed) all actors would calm down and try to mitigate the damage.

But as the Bible says, “A prophet has no honour in his own country”. I grossly underestimated the determination of Czech courts. On 9 May, the Supreme Administration Court in another case related to Slovak pensions decided to submit set of preliminary questions to the ECJ, reacting to the Constitutional Court’s decision (6 Ads 18/2012). For those who do not want to struggle with the elaborate language of the preliminary questions (Case C-253/12, JS), the second and third one may be summarized as follows:

  • Does the EU law (including Arts. 18 TFEU and 4(2) TEU) preclude favourable treatment of Czech citizens under the specific circumstances invoked by the Constitutional Court? If yes:
  • Has the Supreme Administrative Court the duty to follow the legal view of the Constitutional Court, if that view seems to be incompatible with the Court of Justice interpretation of EU law?

To comment on the submission very briefly, the second question seemed as a positive offer to the Court of Justice how to find a way to accommodate the wishes of Constitutional Court. Yet if we read Landtová carefully, the Court of Justice would have to overturn its previous position. If it was unwilling to do that, the third question could indeed disrupt the whole European judicial system as we knew it, as the answer from Luxembourg would be hardly surprising.

The case and its possible consequences were hotly discussed both within Czech academia and various branches of government. While opinions were deeply divided as to who was right or wrong (dispute between the so-called Europeanists and national constitutionalists), all involved considered the developments undesirable and detrimental to the image of the Czech Republic in the EU. Because the courts were entrenched in their position, it was mainly up to the executive and administration to find the solution.

Now I come to the reason I am writing this post. There were recently silent rumours behind closed doors that the administration accepted the demands of the petitioner in the JS case and decided to pay her (even retrospectively) the pension she required. Obviously this should have led to the withdrawal of the original complaint submitted by JS to the Supreme Administrative Court. While it is not yet officially inserted into the database of the proceedings, the information about withdrawal was in the last days publicly mentioned (even if in brief and “if I am right” manner) in Czech newspapers and thus we can take it at face value.

This means the proceedings before the Supreme Administrative Court will be terminated. What happens with the case in Luxembourg? The logical answer is that the preliminary reference will be withdrawn by the referring court. Indeed, in Zabala Erasun (C-422/93) under a very similar factual situation (Spanish government wholly acquiesced to the claims of the petitioner), the referring national court retained the request for preliminary ruling as it considered it generally important, but the Court of Justice replied that “

As long as the court which made the reference has not found that in national law the fact that the claims have been acceded to has not so terminated the proceedings, the Court has no jurisdiction to give a ruling on the questions referred to it“ (para 30). The Court of Justice has consistently resisted answering hypothetical questions and if the original complaint by JS is withdrawn at the national court, then the questions submitted by Supreme Administrative Court are going to be dropped.

One noticeable development regarding the Slovak pensions saga has to be mentioned as well. During 2012, the Constitutional Court apparently altered its jurisprudence in the matter. Numerous complaints asking for equal pensions were rejected as evidently unfounded and when one of the cases was admitted for regular proceedings the second senate (II. ÚS 2524/10) rejected the arguments of petitioner and explained in detail how and why are some of the previous Slovak pensions’ decisions overturned. However, these changes do not mean the previous demands of the Constitutional Court in the matter are totally abandoned, as there have been many specific situations for different petitioners and the justification from one case is not unquestionably transferrable to others.

I still consider the January 2012 ultra vires attack on the Court of Justice as a very senseless move. To repeat the last sentence from my CLMRev case note, “It belongs in the footnotes of EU law textbooks, as a reminder of the axiom ‘being the first is not always the best’”. Despite the attempt of the Supreme Administrative Court to raise the stakes further, the recent development should guarantee there would be no irreparable damage in the EU (meant as EU plus national ones) judicial system and the whole affair will be put to rest as historical curiosity.

SUGGESTED CITATION  Zbíral, Robert: Nuclear War between the Court of Justice and Czech Constitutional Court (hopefully) averted, VerfBlog, 2013/1/09, https://verfassungsblog.de/nuclear-war-between-the-court-of-justice-and-czech-constitutional-court-hopefully-averted/, DOI: 10.17176/20170317-160058.


  1. Massimo Asero Do 28 Mrz 2013 at 12:49 - Reply

    I see there is no way to read any new or sentence from the website of the czech Constitutional Court in english. I woul be interested in knowing if the „silent rumours behind closed doors“ are confirmed and the administration accepted the demands of the petitioner in the JS case and decided to pay; I would also be interested in knowing what the Supreme administrative Court decided then to do. Could you please be so kind to indicate if there is a way to read the relative documents? Thank you and happy Easter.

  2. Massimo Asero Do 28 Mrz 2013 at 18:42 - Reply

    Is there particularly a way to read the pronouncement of the Supreme administrative Court of the 23th of January in english? http://www.nssoud.cz/files/SOUDNI_VYKON/2012/0018_6Ads_12_20130211152112_prevedeno.pdf

  3. Carina Alcoberro Mi 3 Apr 2013 at 15:06 - Reply

    @Massimo Asero
    This is a ‚google translation‘ of the pronouncement. Although it is far from perfect, I think it hints in Robert Zbiral’s direction. I hope it helps you. I have also seen on the Curia page that the JS case has been updated a few days ago, but there are no new documents available,

    Ads 6 18/2012

    The Supreme Administrative Court ruled in a panel composed of Dr. President. Milady Tomková
    And Dr. judges. And Mr. Bohuslav Hnízdil. Catherine Šimáčkova in the legal case, the applicant:
    JUDr. JS, against the defendant: Czech Social Security Administration, based Cross 25, Prague 5, to review the defendant’s decision of 18 Second 2011, in the proceedings on the applicant’s cassation appeal against the judgment of the Regional Court vBrně of 7 12th 2011, No. 41 Ad 29/2011 -20, as follows:
    I. The procedure is continued
    Request for Court ruling on questions submitted by the Supreme Administrative Court on the basis of 9 5th 2012, No. 6 Ads 18/2012-82, onížvede Court proceedings C-253/12 JS v. the Czech Social Security Administration, the Supreme Administrative Court takes back.
    Decisions of 18.2.2011 and 15.12.2010, No. X, the Czech Social Security Administration as a field of pension insurance in the Czech Republic refused to grant the applicant Match zčeského partial retirement pension to the level as if all the insurance in the dissolution of the Czech and Slovak Federative Republic Czech obtained in the pension insurance system (as insurance periods into extinction CSFR, ie 31.12.1992, pursuant to Article 20 of the Treaty between the Czech Republic and the Slovak Republic on Social Security (No. 228/1993 Coll .), who is from the Czech Republic joined the European Union in Annex III, Part A, of Council Regulation No 1408/71 on the application of social security schemes to batch tnané persons, self-employed persons and their families moving Within the frame, the term of insurance Slovak Republic).
    The applicant contested the defendant’s action at the Regional Court in Brno, judgment of 7.12.2011, No. 41 Ad 29/2011-20, dismissed the action. The applicant challenged the judgment of the Regional Court of cassation complaint with the Supreme Administrative Court.
    On the basis of the applicant’s cassation appeal with the Supreme Administrative Court by order dated 9.5.2012, No. 6 Ads 18/2012-82, reversed in accordance with Article 267 of the Treaty on the Functioning of the European Union concerning the interpretation of European Union law on the Court and presented him the following questions: 6 Ads 18/2012
    Excludes Council Regulation (EC) No 1408/71 on the application of social security schemes nazaměstna not persons and their families moving within the Community (Regulation of the European Parliament and Council Regulation (EC) No 883/2004 on the coordination of social security systems), from its scope ratione personae citizen of the Czech Republic, which, in circumstances such as those in the present case, before 1 First 1993 subject to the laws governing pension defunct State (Czech and Slovak Federal Republic), Acting in accordance with these periods sčlánkem 20 of the Treaty concluded on the 29th 10th 1992 between the Czech and Slovak republikouo Social Security registered in Annex III of Regulation (EC) No 1408/71 (Annex II of the European Parliament and Council Regulation No 883/2004) are regarded as periods Slovak Republic apodlevnitrostátního rules created by the Constitutional Court of the Czech Republic at the same time as the time Czech Republic? If the answer to question 1 negative: 2.Brání Article 18 of the Treaty on the Functioning of the European Union in connection SCL. Smlouvyo 4, paragraph 2 of the European Union and Article 3, paragraph 1 of Council Regulation (EC) No 1408/71 (or Article 4 of the European Parliament and Council Regulation (EC) No 883/2004), the fact that the Czech authorities could zaokolností what vprojednávané things, provide preferential treatment (kdávce compensatory allowance at the age where the amount of benefits granted under Article 20 of the Treaty concluded 29th 10th 1992 between the Czech and the Slovak Republic on Social Security and Council Regulation (EC) No 1408 to 1471 (Regulation č.883/2004) lower than the dose that would be received, if the pension calculated under the laws of the Czech Republic), only citizens of the Czech Republic, if ktakovému treatment creates a fundamental right to security in old age unloaded by the Constitutional Court of the Czech Republic specifically in relation kdobám pension acquired vzaniklé CSFR and perceived as part of the national identity, and, if such treatment is stonarušit right of free movement of workers as a fundamental right of the Union, a situation kdybyposkytnutí reciprocal treatment accorded to nationals of EU Member States kteřítakézískali vzaniklé CSFR equivalent of pension security led kvýznamnému threat from the financial stability of the pension fund of the Czech Republic? If the answer to question 2 positive: 3 Prevents European Union law by the national court, the highest court of the state in the area of ​​administrative justice, against whose decisions are not permissible remedies, was in accordance ¡svnitrostátním law bound in law brought by the Constitutional Court of the Czech Republic, where it appears that such assessments are Acting in accordance with Union law, as interpreted by the Court of Justice of the European Union?
    Vnávaznosti to these questions then the Supreme Administrative Court mentioned Resolution Acting in accordance sustanovením
    § 48 paragraph 1 point.
    b) of Act No. 150/2002 Coll. Administrative Procedure Code, as amended (the „s.ř.s.“), stayed the proceedings to await the decision of the Court.
    Management of these preliminary issues is conducted by the Court as a matter C-253/12 JS v. the Czech Social Security Administration. The questions were published in the Official Journal of the European Union C 273, 08.09.2012, p second
    Document dated 6.12.2012 lodged with the Supreme Administrative Court on 10 December 2012, the applicant withdrew the cassation complaint in their entirety and suggested that the Supreme Administrative Court of cassation complaints stopped. Defendant Czech Social Security Administration, the Supreme Administrative Court stated that the Minister of Labour and Social Affairs decided on 18.10.2012 to remove hardness of 6 Ads 18/2012 -192 continuation of social security provisions so that the applicant should be granted from 1 September 2012 Czech sub Match retirement, if the time to the end of 1992 was obtained in the Czech pension insurance system. Match according to the defendant’s decision of 26 October 2012, č.j.X1 from 1.9.2012 is 2310 CZK per month (partial retirement 5024 CZK). In addition, the Czech Republic paid the applicant is dnorázově amount representing almost ten times the amount of annual Match like-court settlement, which was supposed to be an individual procedure chosen regard to the latter asking questions to the Court of Justice of the EU (Ministry of Labour and Social Affairs of the Supreme Administrative Court of 16 January 2013, No. 2013/1128-701). According to § 37, paragraph 4 s.ř.s. proposer may take your return h completely or partially back until decided by the court. Under the provisions of § 47 point. a) s.ř.s. court proceedings by an order to stop, took the appellant submitted his proposal. In compliance sustanovení § 120 s.ř.s. seuvedená provisions also apply to the management of the cassation complaint. Of these provisions of the law on administrative court proceedings that is fully within the party who filed a cassation complaint against the decision of the regional court in the administrative courts, ie the complainant, whether the proceedings will be continued until the decision of the Supreme Administrative Court of cassation complaint tel anebozda the complainant decides to take an appeal stížn ost back. If the complainant takes cassation back in full, there will not be before the Supreme Administrative Court proceedings.
    [7] Although the Supreme Administrative Court therefore convinced that the Court’s decision on the presented issues contributed significantly kobjasnění interpretation of the relevant provisions of European Union regard to the latter, and the fact that the Supreme Administrative Court is leading several other proceedings with identical legal questions for which they would be interpre d Court needed to say that in this matter no longer a reason for which the Supreme Administrative Court initially turned to the Court suvedenými preliminary questions. Given that this procedure of cassation must be stopped, there is no decision of the Court of Justice on these preliminary issues necessary for the decision in this case. Regard to the latter the existence of other pending proceedings before the Supreme Administrative Court sidentickými legal issues in which management is usually suspended pending the Court’s decision in this case, can not be ruled out re asking questions.
    [8] Zuvedených reasons, the Supreme Administrative Court that the aborted procedure still continues (§ 48 paragraph 5 s.ř.s.) and also in line SCL. 100 in conjunction SCL. 148 Rules of Procedure of the Court it took svoužádost of the Court’s ruling on the questions referred back. After the case was removed zrejstříku Soudníhodvora, the Supreme Administrative Court of cassation complaints stopped. Instruction: This resolution nejsouopravné means permissible (§ 53 paragraph 3 and § 120 s.ř.s.). Brno on 23 January 2013 JUDr. Milada Tomková President of the Senate

  4. Massimo Asero Sa 15 Jun 2013 at 17:50 - Reply

    Thanks a lot for you kindness, dr. Carina Alcoberro. As I am interested in the Slovak pension case-law I would be glad if someone could indicate us if there is an official translation because I have not been able to find one until this afternoon! As the author spoke about „silent rumours“, which seem to be completely confirmated in the google translation of the Resolution of the Supreme administrative Court, I would suppose that a such important question would need an official translation or at least a qualified one…

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