How Constitutional Courts talk to each other: The Potential of the Preliminary Reference Procedure for Europe’s pluralist Verfassungsverbund
Not too long ago, the debate about the relationship between the ECJ and national constitutional courts was centered around the issues of primacy and the power to have the last word. In this debate, references to the preliminary reference procedure were only peripheral. They were mostly limited to the observation that Article 267 TFEU provides for an institutionalized mechanism for judicial dialogue between the ECJ and national constitutional courts that the latter are unwilling to use.
The terrain has changed. At least, this is what the anticipated speech of the Vice-President of the Court of Justice of the European Union, Koen Lenaerts, at the Humboldt-Universitaet of Berlin last Monday suggested. Lenaerts’ address, given in German, was not one of the great speeches on Europe but rather, as Ingolf Pernice remarked, a “basic lecture”. It was nonetheless a remarkable speech.
His address about the relationship between the ECJ and national constitutional courts, in Lenaerts’ words “the eternal theme”, covered in essence recent development in the case-law regarding the preliminary reference procedure. More precisely, the speech discussed ECJ decisions delivered in response to a request from national constitutional courts for a preliminary ruling: Pringle, Melloni, Bressol & Chaverot, Test Achats, Digital Rights & Seitlinger, Jeremy F. All decisions that were rendered since 2010. Moreover, the German Federal Constitutional Court famously submitted a preliminary question to the ECJ in the OMT-ruling. Considering that many national constitutional courts have long been reluctant to participate at all in this direct dialogue procedure, this shift in preliminary reference practices is remarkable. Within the span of less than six years, four of the most influential national constitutional courts in Europe have all submitted their first preliminary reference to the ECJ ever: the Italian Corte costituzionale in 2008, the Spanish Tribunal Constitucional in 2011 in the Melloni case, the French Conseil constitutionnel in Jeremy F., and the Federal Constitutional in the OMT-ruling on January 14, 2014. How is it possible to explain this sudden shift from neglect to cooperation? Why were some national constitutional courts for so long so reluctant to send preliminary questions to the ECJ? What conclusions can be drawn regarding the necessary conditions for this shift? And what case can be made from the perspective of national constitutional courts from a normative point of view to use the preliminary procedure?
Strong Position for the ECJ
The advantages for the ECJ of cooperation with national constitutional courts in the framework of the preliminary procedure are obvious: This European procedure that aims at ensuring the uniform interpretation of EU law puts the ECJ in a privileged position. If the Court is the “engine” of European integration, the preliminary procedure is the valve that allows the Court to substantially steer the integration process. The involvement of national constitutional courts in this procedure can be expected strengthen the role of the ECJ.
It is not surprising then that in his speech, Koen Lenaerts strongly endorsed the use of the preliminary procedure by national constitutional courts. He repeatedly emphasized that the preliminary procedure is characterized “by mutual cooperation and shared responsibility”. Cooperation was necessary “to avoid tensions”. It became evident that Lenaerts views a cooperative preliminary reference practice as the solution to the continuous struggle between the ECJ and national constitutional courts that results from the starkly contrasting theories of the “proper intellectual copyright” of the European legal order. From his viewpoint, this cooperation is the right way „to move the whole debate [about the relationship between the ECJ and national constitutional courts] forward”, which is “actually more important” than these conceptual questions [about the scope of primacy of EU law] that are really only of interest to professors at universities” but that “do not make much of a difference in actual practice”.
But what are the normative reasons for national constitutional courts to use the preliminary procedure case from their perspective? Here are a few considerations: First, the heterarchical relationships between the institutions of different legal orders in a pluralist arrangement such as the EU generate a high demand for inter-order judicial communication. Of course, the ECJ and the non-referring national constitutional courts have communicated with each other in numerous ways and fora. For example, national constitutional courts use the grand EU-decisions concerning the ratification of a European treaty as a forum for inter-order judicial dialogue when they send certain messages to the ECJ. However, this indirect form of judicial dialogue alone is no longer capable to satisfy the increasing demands for inter-order judicial communication. While indirect dialogue allows courts to talk past one another, the preliminary reference procedure enables a direct, case-oriented, formalized judicial dialogue forcing courts to engage in substance with the arguments of their counterpart. This contributes decisively to ensuring the uniform interpretation of EU law and, in that way, furthers legal certainty and improves the situation of the individual seeking judicial remedies.
Second, national constitutional courts which represent a national perspective lack the legitimacy to make certain decisions that have external effects beyond the national realm. Without the involvement of the ECJ representing the Union perspective, there is the risk of a national “tunnelvision” that does not sufficiently take into account the interests beyond the national borders. A case in point is the Federal Constitutional Court’s OMT-decision that has, as Justice Lübbe-Wolff pointed out in her minority opinion, “incalculable consequences for the operating currency of the euro zone and the national economies depending on it”. In such a scenario, a national court is in danger of overreaching beyond its political-institutional limitations.
Third, the generally issue-oriented, deliberative character of judicial dialogue holds a significant potential to overcome or to at least curb conflicting judicial interests. Judges share a common professional identity and speak the common language of the law which subjects the diverging interests to reason-giving and justificatory requirements. In his speech, Lenaerts repeatedly emphasized the necessary conditions: trust, mutual respect, and to “accept the decision of the other as legitimate, as acceptable”. These are critical requirements for the benefits of the preliminary procedure to outweigh the risks of a higher probability of conflict. A direct, case-oriented dialogue involves considerable potential of conflict as it complicates avoidance strategies. Nevertheless, there are good reasons to assume that the gradual shift of the inter-order constitutional dialogue between the ECJ and national constitutional courts towards the preliminary procedure will be productive and not produce an unmanageable number of judicial conflicts. This assumption appears to be confirmed by the previous judicial practice in cases such as Melloni. Bressol & Chaverot. Test Achats and Jeremy F. According to Lenaerts, “the matter of Bressol & Chaverol-Sache illustrates the cooperative way in which the sharing of responsibility in the EU’s multi-level system can operate”.
Why Constitutional Courts were so reluctant to refer?
The obvious-seeming answer is: National Constitutional Courts sought to preserve their decision-making autonomy in the EU context. A reference restricts their scope of decision-making and can be perceived as subordination. At least, such a reading finds support in the public reception of some orders for a preliminary reference: The first reference of the Federal Constitutional Court to the ECJ in the OMT-ruling was predominantly depicted in the media as if the Court shrunk from making its own decision and left the last word on this matter to the ECJ. In any event, this is not what follows from the conception of the Federal Constitutional Court: This jurisprudence requires the Court to make a reference before it finds an act of EU law ultra vires but the Court still reserves to itself that power for the aftermath of an ECJ decision. If constitutional courts are nonetheless keen to avoid preliminary references to the ECJ, this has to do with the difficulties to come to a different conclusion than the ECJ’s preliminary ruling and to thereby cause an open judicial conflict – especially since such a scenario has been portrayed as the legal equivalent of a constitutional catastrophe or the first nuclear blow in EU legal scholarship. No constitutional court is willing to bear that responsibility. This concern might explain why over the course several decades – until the recent decision of the Czech constitutional court in Landtová – no national constitutional court has openly set aside EU law notwithstanding the continuous struggle between the ECJ and constitutional courts.
This demonstrates a more fundamental problem: The overstated concern over the dramatic consequences of a contestation of ECJ decisions seems to have had a chilling effect on the willingness of national constitutional courts to refer preliminary questions to the ECJ. Put differently: If, given the high stakes, it is virtually impossible to deviate from a preliminary ruling of the ECJ, this can tip the scale in favor of non-cooperation and, hence, towards a practice of non-referrals.
A pluralistic Conception of the Preliminary Reference Procedure
How can we explain these shifting patterns from a refusal to refer towards routine dialogue in preliminary reference practices? One could take the position that national constitutional courts, especially the Federal Constitutional Court, have finally become reasonable and accept their EU obligation to make a submission. True to the motto: Learning processes may sometimes simply take some time. This scenario, however, does not seem particularly plausible.
What is much more decisive is that the conditions in the EU context have changed. Constitutional pluralism has been established in the mainstream of EU legal scholarship. Even ECJ-Judge Lenaerts discussed the Melloni-judgment under the topos of constitutional pluralism in his Humboldt-speech. Moreover, due to the introduction of the identity clause of Article 4(2) TEU by the Lisbon Treaty, the constitutional concerns of national constitutional courts received a reference point in the EU’s primary law.
This leads to the following conclusion: So long as national constitutional courts perceive the preliminary procedure as a form of submission in which they are inevitably forced to make a decision that leaves them with virtually no decision-making autonomy, they will likely not continue the shift in preliminary reference practices. In the framework of the preliminary procedure, national constitutional courts and the ECJ should interact with each other on an equal footing and enter into an issues-based dialogue about the question what decisions best realize the constitutional principles of both, the European and the national legal order.
For national constitutional courts, that means that they should respect the role of the ECJ to ensure the uniform application of EU law and that they cannot expect the ECJ, who is responsible for 28 member states, to always follow the opinion held by the constitutional court of a single member state. For the ECJ, that means that it should demonstrate tact and sensitivity with respect to preliminary questions of national constitutional courts and that it gives due consideration to their constitutional concerns to the greatest extent possible. Provided that these conditions are satisfied, it appears conceivable that national constitutional courts may exert more influence on the ECJ’s jurisprudence through the preliminary procedure than through a continued non-referral practice.
This also seems to be how Lenaerts sees it. While Pernice, in the subsequent round of questions following Lenaerts’ speech, considered scenarios on how to “legally solve” a constitutional conflict between the ECJ and a national constitutional court through penalty payments paid by the Member State, Lenaerts preferred to stress that this was, “of course, not the normal, satisfying approach to solving conflicts” but rather “one simply needs to convince”. One should also “not think … that the ECJ never or only very rarely leaves room to the national constitution”. “This is not the case.” Rather, Lenaerts pointed out that by referring a preliminary question to the ECJ, national constitutional courts seize an opportunity “to steer the result in a desirable direction both by the way of formulating the questions and by the reasons for the order for the preliminary reference” and, therewith, to shape “the development of the law throughout Europe”. Even “the Federal Constitutional Court has understood this now”.
Whether this direct dialogue between the ECJ and national constitutional courts is successful will depend critically on a truly pluralist conception regarding the preliminary procedure. A procedure that does not only put the ECJ in the position to transpose EU principles and norms into the legal orders of the member states but that also allows national constitutional courts to inject the constitutional principles and norms of their respective legal order into the ECJ’s decision-making. In my view, this requires conceptually to grant national constitutional courts – – as ultima ratio only – the possibility of derogation from the preliminary ruling of the ECJ.