Should Constitutional Courts be guardians of the duty to make a preliminary reference?

Here is an interesting case for the many fans of the preliminary reference procedure.

A Constitutional Court of a Member State introduces a case-law that imposes on all courts of last instance a duty to make a preliminary reference pursuant to Article 267 TFEU as a question of constitutional principle. Thus, if a Supreme Court decides not to make a reference in breach of Cilfit or Da Costa, its judgment is now subject to a constitutional appeal for breach of the fundamental right to an effective remedy. The Constitutional Court thus becomes a guarantor of the correct enforcement of EU law by national courts.

At first sight, this is a sign of cooperation on the part of the Constitutional Court with its European counterpart, the Court of Justice. The courts of last instance in the country now have a dual incentive to make a preliminary reference when they have an obligation to do so under Article 267 TFEU. As of now, they also have a duty on constitutional grounds.

However, and here comes the catch, the Constitutional Court ruled in this way in a case in which the Supreme Court had set aside a statute due to its incompatibility with EU law. The Supreme Court did not make a reference to Luxembourg because it was convinced that the statute was in breach of a Directive. Thus, it set the statute aside on the grounds of the traditional Simmenthal doctrine.

The Constitutional Court is unhappy with this outcome, not only because the Supreme Court has refused to make a reference, but mostly because in that country it is only for the Constitutional Court to rule on the legality of parliamentary acts. The ordinary courts (including the Supreme Court) have no power to rule on that, unless they decide in a case in which EU law applies. And the Constitutional Court is unhappy with that power of ordinary courts, because it considers that its monopoly to review the legality of Parliament’s acts is being undermined.

Therefore, in its judgment upholding the constitutional appeal, the Constitutional Court rules that when a court of last instance decides to set aside a statute due to a breach of EU law, there is a reinforced duty to make a reference. And then, the Constitutional Court adds that if the court of last instance rules differently and decides not to set aside a statute, its duty to make a reference is not so qualified, and therefore the Constitutional Court will apply a low standard of review. In other words: if the Supreme Court wants to set aside a statute, almost in all cases it will have to make a reference, even if the case is acte clair or acte éclairé. But if the Supreme Court implements EU law, has doubts, but comes to the conclusion that the statute is compatible with EU law, the Constitutional Court will only review the refusal to make a reference on grounds of extreme arbitrariness or unreasonableness.

Is this approach in line with EU Law? I have my doubts.

First, is it really appropriate for a Constitutional Court to add a double layer of protection to the duty to make a reference that falls upon courts of last resort? Besides Article 267 TFEU, should a Constitutional Court introduce an additional obligation to that duty, based on the Constitution? I think that prima facie it makes sense, because it puts the Constitution at the service of EU law, facilitating the access of citizens to a rightful judge that happens to sit in Luxembourg. If the Constitution has procedural tools that guarantee access to justice, it’s appropriate that such tools apply for national and European remedies alike.

However, is it wise to discriminate between remedies on the basis of the outcome that the national court has in mind? Is it appropriate to impose on a national court a reinforced duty to make a preliminary reference only if it comes to the conclusion that a statute breaches EU law, while no such duty falls upon him (at least no reinforced constitutional duty) if it decides that the statute is perfectly ok? Isn’t there a subtle (or maybe not so subtle) invitation to courts of last instance to avoid setting aside statutes that may breach EU law? A preliminary reference takes time, it might actually not be necessary (but the constitutional duty imposes the reference anyway) and the court might simply want to terminate the proceedings. If the court walks in one direction (setting aside the statute) it will need to pass a Luxembourg test. If it walks in the other direction (the statute is fine) the case can be closed straight away, with no additional work and inquisitive testing from the Court of Justice.

The message sounds very clear to me.

It’s difficult to predict how a court would act depending on an outcome that we ignore. But be that as it may, the truth is that a Constitutional Court is imposing a dual standard for a reason that should be absolutely irrelevant for EU law. National courts of last resort should make a reference (or not) irrespective of whether the outcome is one or the other. It’s the doubt of the court on a point of interpretation of EU law that justifies the reference, not the outcome of setting aside or not setting aside a statute.

In these circumstances, I’m afraid that such a system would have a subtle but perverse effect of nudging national courts of last instance into ruling in favour of statutes, even when there are doubts as to their conformity with EU law. A sort of presumption of conformity of national law with EU law would prevail, putting a heavy and sometimes unsurmountable burden on the applicants, no matter how right they might be. And it would eventually side-line the Court of Justice in its key task of assisting national courts in finding the correct interpretation of EU law, even if it entails setting aside an act of Parliament.

The case is not the product of my imagination. It’s the outcome of the Spanish Constitutional Court’s recent judgment in case STC 37/2019, whereby it upheld a constitutional complaint on the grounds of a breach of the fundamental right to an effective legal remedy, arguing that the Supreme Court should have made a reference in a case in which it implemented EU law and came to the result that a Parliamentary statute breached a Directive. The Constitutional Court said it very clearly: the Supreme Court is misbehaving not because the acte clair or acte éclairé has been breached, but because they have set aside an act of Parliament. Thus a stricter standard of review applies, and the judgment was indeed quashed.

It’s a fascinating test case on the limits of constitutional cooperation in support of Article 267 TFEU. But it’s also a good example of how the helping hand of Constitutional Courts can be welcome at times, but only as long as they truly cooperate to ensure the proper functioning of EU law. Otherwise, it’s probably better that they keep busy minding their own business.

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