Presentation by Dr Mirjam Škrk, Judge of the Constitutional Court of Slovenia

Dr. Mirjam Škrk
Judge of the Constitutional Court of the Republic of Slovenia
  Following its case-law, the Constitutional Court of the Republic of Slovenia will have to shape its attitude towards EU law and the European Court of Justice in Luxemburg (hereinafter ECJ) on the basis of its present and future jurisprudence in concrete cases. By doing so it will give substance to and demonstrate its understanding of Article 3.a of the Constitution of the Republic of Slovenia, particularly its first and fourth paragraphs.[1]
 
In cases with a European element the Constitutional Court of the Republic of Slovenia will inevitably come across the nature, scope and characteristic features of European law, the role of the ECJ in interpreting and applying such law within the framework of its jurisdiction (particularly from the viewpoint of questions referred to the ECJ for a preliminary ruling), and the comparative constitutional case-law of other European constitutional courts and the highest courts of national jurisdictions. In so doing the Constitutional Court of Slovenia will inevitably be confronted with the extent of its own jurisprudence, particularly in light of its position and jurisdiction as determined by the Constitution and the Constitutional Court Act. Finally, sooner or later the Court will be faced with the decision whether to keep a "caveat" in view of the protection of constitutional rights and fundamental values according to the national Constitution.
 
The Constitutional Court played a dramatic role in the procedure for ratifying the Europe Association Agreement (hereinafter EAA) in 1997.[2] As a guardian of the Constitution, within its jurisdiction in accordance with the second paragraph of Article 160 of the Constitution, it (preliminary) reviewed the consistency of the provisions of EAA which referred to the acquisition of real-estate by aliens (natural persons and legal entities) with the then provision of Article 68 of the Constitution, which prohibited the possibility of aliens acquiring such real-estate, except by inheritance, under condition of reciprocity.[3] The decision of the Constitutional Court (an opinion which in the event of an established unconstitutionality of a treaty is binding on the National Assembly) was followed by the first amendment of the Constitution before the ratification of EAA.[4] The Constitutional Court later rejected or dismissed all petitions for a subsequent review of the constitutionality of the EAA.[5] Moreover, from the viewpoint of the EAA, the Court did not review the Ordinance on Procedures and Conditions for the Lease of Areas along Highways for the Construction of Premises for Accompanying Activities and on Determining the Amounts of Reimbursements for the Use of These Areas of 1996, as the challenged Ordinance ceased to be in force before the commencement of the applicability of the Association Agreement, and the petitioner did not challenge the later Ordinance with the same title and did not request its review from the viewpoint of compliance with the above-mentioned international agreement.[6] In case U-I-94/97 the Court rejected the petition of a foreign legal entity for the review of the consistency of the Order on the Manner of Carrying Out Payment Transactions with Foreign Countries with the provision of Article 63 of the EAA, as the petitioner was a legal entity which was not a resident of the EU.[7]
 
The Constitutional Court encountered EU law several times during the period leading up to Slovenia joining the EU. However, it did not substantially decide on the question of the eventual constitutionality of this law.[8]
 
Shortly after the integration of Slovenia into the EU on 1 May 2004[9] the Constitutional Court reviewed two "European cases".[10] In the decisions thereof the Court already indicated certain elements of its orientation towards the application of EU law in the Slovenian constitutional and national legal order, which will be discussed below.
 
Scope, Nature and Certain Characteristic Features of the Application of EU law
 
The doctrine of direct effect (l`effet direct) of Community law is valid at least in principle regarding all binding Community law including the EC Treaties, secondary legislation, and international agreements concluded by the Community.[11]
 
Ilešič and Grilc list among the primary sources of the Community the establishing treaties and their amendments, and also agreements between the Community and third countries.[12] The European Community as an international legal person (Article 281 of the Treaty Establishing the European Community – hereinafter the EC Treaty) has a contractual capability to conclude treaties with one or more states and with other international organisations. The general authority for concluding treaties with other international legal entities can be found in Article 300 of the EC Treaty, and in Article 133 of the EC Treaty particularly for the area of concluding tariff and trade agreements.[13] Theory considers as secondary legal sources regulations, directives, decisions or individual legal acts, and recommendations and opinions which are not legally binding, as well as other Community acts.[14]
 
The term EU law strictu sensu differs from "acquis communautaire" (in English, Community patrimony), which contains the entire legislation, principles, political policies, the case-law of the European Court of Justice, and the treaty obligations which were accepted by the Member States.[15] The term acquis communitaire is not entirely defined and often refers to the enlargement of EU members. According to Grilc and Ilešič, the Treaty on the European Union (hereinafter the EU Treaty) raised the term of acquis to the level of the primary legal source of the European Community.[16]
 
As already indicated in the introduction, one of the fundamental characteristic features of legally binding EU law is its direct effect. The legal basis for this is Article 249 of the EC Treaty, which in its second paragraph states that a regulation shall have general application, shall be binding in its entirety and directly applicable in all Member States of the European Union. The third paragraph of the same article determines that a directive shall be binding, on each Member State to which it is addressed regarding the result to be achieved, but shall leave to the national authorities the choice of form and method. According to the fourth paragraph, a decision (an individual legal act) shall be binding in its entirety upon those to whom it is addressed.[17] The fifth paragraph determines that recommendations and opinions shall have no binding force.
 
In its case-law the European Court of Justice has developed and strengthened the nature of the direct effect of EU law and its direct applicability in the Member States. In the landmark decision Van Gend en Loos, the ECJ, inter alia, wrote that the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and that the provision of the EEC Treaty on the prohibition of tariffs for the Member States does not require any legislative intervention on the part of the states; this provision must be interpreted as producing direct effects and creating individual rights which national courts must protect.[18]
 
The rule that all citizens of all the Member States must be treated equally on the basis of the primary sources of the Community, without an implementing measure, was established by the ECJ in the case Reyners v. Belgium.[19]
 
The ECJ decided in favour of direct effect also for the secondary sources of the Community. The direct applicability of a Community regulation upon its entry into force and irrespective of any national legal measure on its implementation into the national legislation, was, inter alia, decided by the ECJ in the case Amsterdam Bulb BV v. Produktschap voor Siergewassen.[20]
 
In contrast to regulations, according to the third paragraph of Article 249 of the EC Treaty, the position of directives is different. A directive is binding, on each Member State to which it is addressed regarding the result to be achieved, but the choice of form and methods is left to the national authorities. Direct national implementation of directives is thus foreseen in the EC Treaty.[21] Nevertheless, in the case Van Duyn v. Home Office, in proceedings to review a question referred for a preliminary ruling, the ECJ allowed the possibility of the direct applicability of a directive before a national court, under the condition that the nature, scheme and the text of the provision which is the subject of review allow that such provision may have a direct effect on the relations between the Member States and individuals.[22] In the case Pubblico Ministero v. Tullio Ratti, the ECJ repeated the possibility of the direct effect of a directive, and furthermore explained that a Member State which does not adopt implementing measures for the implementation of a directive by a prescribed time-limit, cannot rely on the omission of its duty toward an individual.[23] In the Marshall case, the ECJ decided that with regard to the Establishing Treaty a directive cannot be enforced toward an individual, but only against a contracting party, i.e. a public body, in the concrete case against the Health Authority.[24] In this case the ECJ furthermore drew attention to the difference between a regulation and a directive, and consequently allowed only vertical and not horizontal direct applicability of a directive.[25]
 
The case Francovich and Bonifaci v. Italy[26] refers to the failure of the Italian Government regarding the implementation of the Community directive on the protection of employees in the event of the insolvency of an employer. In this case the ECJ introduced a principle on the liability of the state and consequently the possibility of claiming an indemnity against such state in cases in which it did not implement a directive, i.e. in cases in which in its national law the measure is not provided for in accordance with the directive which was not implemented.[27] This judgment, which is important from several viewpoints, substantially contributed to the enforcement of the effect of directives which are not implemented.[28]
 
The provision of Article 249 of the EC Treaty determines that decisions of the Community as individual acts are binding; however, it does not explicitly prescribe their direct applicability. In the case Franz Grad v. Finanzamt Traunstein, the ECJ allowed a differentiation between the effects of a regulation and a decision. With reference to such, it stressed that the above-discussed difference does not exclude the right of individuals to enforce claims before national courts, and that the effect of a decision can thus be the same as the effect of the direct applicability of a regulation.[29] In the same case the ECJ set criteria for an obligation determined by a decision: this must be unconditional, clear and specific enough as to have direct effect.[30]
 
It appears that some authors unconditionally regard treaties between the Community and other international legal entities as primary legal sources of the EU. Craig and de Búrca are in this respect somehow more reserved and allow that in view of their direct effect only those international agreements which are concluded by the Community and are precise enough and unconditional may share some fundamental characteristic features of EU law.[31] The ECJ in its older case-law was not willing to allow the direct effect of treaty obligations, inter alia, this was the case in the individual aspects of the Agreement on GATT, especially because the subjects affected thereby usually challenged the legality of the Community legislation.[32]
 
The ECJ handled the case Portugal v. Council similarly in reviewing the WTO Agreements.[33] On the other hand, the ECJ recognized the direct effect of the provisions of the Co-Operation Agreement between the EEC and Yugoslavia of 1980.[34] In the series of recent cases which referred to the Europe Association Agreements, the ECJ decided that their provisions on the right to establishment have direct effect, and that it is possible to thereby challenge national legislation before national courts.[35]
 
A further characteristic feature of EU law considering its relation toward the national law of the Member States is its autonomy and supremacy. Autonomy means the independence of the EU legal order, which has been developing independently from the legal systems of the Member States.[36] EU bodies have original legislative competences and for the validity of their legislative acts do not require the subsequent approval of the legislative or executive bodies of the Member States.[37]
 
As has the doctrine of direct effect, the doctrine of the primacy of EU law in relation to national laws has also developed through the ECJ case-law. In the case Hauer v. Land Rheinland-Pfalz,[38] the Court decided that the goal of establishing a common market between different states would be destroyed if Community law was subordinate to the national laws of different states.
 
Apart from the already mentioned case Van Gend en Loos, the case Flaminio Costa v ENEL[39] is regarded as one of the fundamental decisions of the ECJ from the viewpoint of the primacy of EU law. In this case, the ECJ defined the Community as an international legal person with unlimited duration and with certain elements of supra-nationality. In the ENEL case, the ECJ inter alia decided that from the viewpoint of the Community the position that a subsequent unilateral (legislative) measure of a state has priority over a legal system which the states accepted on the basis of reciprocity is unacceptable. Craig and de Búrca analyze five key arguments which the ECJ established in the ENEL case, among which the last is perhaps most distinctive: that the language of direct applicability in Article 249 of the EC Treaty would be meaningless if the Member States could negate the effect of Community law by passing subsequent (lex posterior) inconsistent legislation.[40] Other writers too recognize that the Van Gend and Costa cases are decisive from the viewpoint of enforcing the doctrines of the direct effect and primacy of EU law.[41]
 
In the case Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel,[42] the ECJ decided that the validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that State or the principles of the national constitutional structure. It was the decision of the ECJ in this case that led to a "potentially serious dispute" between German Federal Constitutional Court and the ECJ.[43] In the just as prominent Simmenthal case,[44] the ECJ decided that national courts are not allowed to apply national acts which are contrary to Community law irrespective of when such national act was adopted. National courts must respect the full application of the provisions of Community law and thereby ex officio refuse to apply any conflicting provisions of national legislation, even if adopted subsequently; the court does not need to await its amendment or abrogation.[45] The clear message of the ECJ in the Simmenthal case was that, even if the constitutional court is the only national court empowered to decide on the constitutionality of a national law, when a conflict between national law and Community law arises before another national court, that court must give immediate effect to Community law without awaiting the prior ruling of the constitutional court.[46] The principle of primacy thus does not require the abrogation of a national act but only its non-application.[47]
 
In applying EU law the Member States are also bound by the principle of loyal interpretation. This principle has its legal foundation in Article 10 of the EC Treaty, which binds the Member States to take all the appropriate measures to ensure fulfilment of the obligations arising from this Treaty or resulting from action taken by the institutions of the Community. Simultaneously they are bound to abstain from any measure which could jeopardize the fulfilment of the objectives of the EC Treaty. Pursuant to this doctrine, national courts are obliged to interpret national law in light of the meaning and purpose of EU law even if it is a case of directives or other legal sources of the EU which do not have direct effect, and thereby guarantee EU law its effective application.[48]
 
The Slovenian Constitutional Court referred to the principle of loyal interpretation in the above-mentioned case U-I-321/02 in reviewing the Medical Services Act, with reference to extending the working time of doctors during their on-call duty.[49]
 
With reference to this, attention must be drawn to the fact that the Slovenian Constitutional Court has in principle already declared itself in favour of the direct effect and primacy of EU law in the above-mentioned case Up-328/04/U-I-186/04 ("the Bankruptcy Procedure Case"). It dismissed the constitutional complaint of the complainant, a foreign legal entity based within the EU, which alleged the violation of Article 22 of the Constitution (the equal protection of rights), as the bankruptcy court in its case applied national procedural law and not the Council Regulation (EC) No. 1346/2000 of 27 May 2000 on proceedings in cases of insolvency, and it did not instruct the complainant on the time-limits for reporting bankruptcy proceedings. It was namely a case of the application of a procedural norm, and in the complainant's case the procedures before regular Slovenian courts had been concluded before the integration of Slovenia into the EU. Simultaneously the complainant challenged the Compulsory Settlement, Bankruptcy and Liquidation Act for the same reasons. The Constitutional Court dismissed the petition and reasoned that on the grounds of the fourth paragraph of Article 3.a of the Constitution, acts and decisions adopted within the framework of the EU are applied in Slovenia in accordance with the legal regulation of these organizations. The Court gave direct and binding effect to the Regulation to which the petitioner referred, and in paragraph 10 of the reasoning, inter alia, wrote:
 
"In the event it is proved that a national legal norm is contrary to a legal norm from the Regulation, in a concrete case a court may not apply such legal norm of national law due to the principle of supremacy, i.e. the primacy of Community law. It is thus demonstrated that the challenged act, only because it does not incorporate the provisions of the Regulation, is not inconsistent with Article 22 of the Constitution. As the Regulation is not a treaty, the complainant cannot claim the alleged inconsistency with Article 8 of the Constitution merely by the allegation that the challenged act is inconsistent with the Regulation. In view of the above-mentioned, the Constitutional Court dismissed the petition as manifestly unfounded."
 
In its relatively short and summarized reasoning the Constitutional Court thus adopted the fundamental elements of direct effect and the principle of primacy, as interpreted by the ECJ. The Constitutional Court in the discussed case announced that regarding the challenged national norm, it would not establish its unconstitutionality only for the fact that it is inconsistent with EU law, as according to EU law it suffices that national courts, including the Constitutional Court, do not apply such norm,[50] and establishing its possible unconstitutionality is not necessary. The courts, including the Constitutional Court, are obliged to apply EU law.[51]
 
We would like to draw attention to an additional constitutional aspect. Owing to the fact that in the concrete case it was a matter of a secondary legal source of the Community, the Constitutional Court clearly stated that the legal basis thereof is Article 3.a, and not Article 8 of the Constitution. The later namely refers to the meaning and the effect of the principles and norms of international law within the Slovenian constitutional and legal order.[52] The same approach as for secondary sources of the EU should in principle also be applied for primary sources, at least those which are part of the "acquis communitaire". This consequently means that the Constitutional Court, except in cases of new amending treaties or accession treaties, will not deal with the hierarchical placement of EU law into the Slovenian constitutional and legal order, as determined by Article 153 of the Constitution (the conformity of legal acts).
 
The role of ECJ (and CFI) in Interpreting and Applying EU Law
 
Article 220 of the EC Treaty determines that the ECJ and the Court of First Instance (hereinafter CFI), each within its jurisdiction, shall ensure that in the interpretation and application of this Treaty the law is observed.
 
We are primarily interested in the role of the ECJ from the viewpoint of the possible case-law of the Slovenian Constitutional Court. From this perspective, the competence of the ECJ to give preliminary rulings according to Article 234 of the EC Treaty is particularly important.[53] According to this provision, the ECJ has jurisdiction to interpret EU law in cases where such question is raised before any court of tribunal of a Member State, if it considers that a decision on the question is necessary to enable it to pass judgment. In such case, according to the second paragraph of Article 234 of the EC Treaty, any national court (or tribunal) may request the ECJ to give a ruling thereon. Under certain circumstances and conditions, the jurisdiction of the ECJ according to Article 234 is foreseen according to Article 68 of the EC Treaty also for the IV Chapter of the EC Treaty, entitled Visas, Asylum, Immigration and Other Policies Related to Free Movement of Persons. Although after Maastricht the ECJ became the court of the EU, the jurisdiction of the ECJ according to Article 234 of the EC Treaty is nevertheless in principle limited to the first pillar of the Community.[54]
 
Prior to the Nice Treaty all the requests to give preliminary rulings were addressed to the ECJ.[55] The provision of Article 225 of the EC Treaty in the first paragraph determines the jurisdiction of the CFI, and in the third paragraph of the same article it now accords jurisdiction also to the CFI to hear and determine questions referred for a preliminary ruling in specific areas laid down by the Statute of the Court of Justice.[56] Decisions given by the CFI on questions referred for a preliminary ruling may exceptionally be subject to review by the ECJ, under the conditions and within the limits laid down by the ECJ`s Statute, where there is a serious risk of the unity or consistency of Community law being affected (third subparagraph, third paragraph of Article 225 of the EC Treaty). The question of delimitation of competencies between the ECJ and the CFI to give preliminary rulings at the present exceeds the subject of our discussion, and below we only refer to the provision of Article 234 of the EC Treaty and to the eventual case-law of the ECJ.
 
The provision of Article 234 was foreseen as the mechanism through which national courts and the ECJ have engaged "in a discourse on the appropriate reach of Community law."[57] Article 234 gives the ECJ the power to interpret the EC Treaty (and the acts of the institutions), but does not specifically empower it to apply EU law to the facts of individual concrete case.[58] The distinction between the interpretation and application of EU law is meant to be one of the fundamental characteristic features of the division of authority between the ECJ and national courts: the former is empowered to interpret, and the latter to apply EU law to the facts of a concrete case.[59]
 
Theory recognizes that with the authority of its case-law the ECJ has gained power in relation to the national courts of the Member States. The original conception of this relationship was intended on the horizontal and bilateral levels, according to which national courts were separate but equal.[60] In the course of developing the ECJ case-law, this relationship grew steadily more vertical and multilateral.[61]
 
In view of the future case-law of the Slovenian Constitutional Court the third paragraph of Article 234 of the EC Treaty is particularly important, which reads that where any such question is raised in a case pending before a court (or a tribunal) of a Member State against whose decisions there is no judicial remedy under national law, that court shall bring the matter before the ECJ. It is difficult to foresee in advance how often the Slovenian Constitutional Court will face the question of whether to raise a question referred to the ECJ for a preliminary ruling, within the scope of its jurisdiction to review the constitutionality (and legality) of normative legal acts (the first paragraph of Article 160 of the Constitution, the jurisdiction of the Constitutional Court). Moreover, this question undoubtedly arises also in the framework of its competence to decide constitutional complaints (the third paragraph of Article 160 of the Constitution).[62]
 
With reference to the above-mentioned, we would like to draw attention to the case Sri CILFIT and Lanificio di Gavardo SpA v. Ministry of Health,[63] in which the ECJ, inter alia, drew attention to the relationship between the second and third paragraphs of Article 234. The message is that national courts of last instance are not obliged to refer to the ECJ a question concerning the interpretation of EU law raised before them if that question is not relevant, that is to say, if the answer to that question, regardless of what it may be, can in no way affect the outcome of the case. If, however, those courts consider recourse to Community law to be necessary to decide a case, they are obliged to refer to the ECJ any question of interpretation which may arise.[64]
 
In the case International Chemical Corporation v. Amministratione delle Finanze dello Stato,[65] the subject of review was a Council regulation. The ECJ, inter alia, stated that the main purpose of its review according to Article 234 of the EC Treaty is to ensure the uniform application of EU law by national courts. Uniform application of EU law is imperative not only when such law must be interpreted, but also in cases if before the ECJ a question on the validity of an act of any of the Community institutions arises.[66] This case is important due to the precedential effect of ECJ decisions according to Article 234 of the EC Treaty. While the ECJ stated that its rulings on the validity of a Community regulation according to Article 234 of the EC Treaty will have erga omnes effects, the Court has made it clear that national courts cannot themselves find the norms of EU law to be invalid.[67] Moreover, regarding precedential effect, it must be clarified that regardless of the fact that the judicial decisions of the ECJ are one of the most important legal sources of EU law, the ECJ is not bound by its own judicial decisions, although in practice it only with difficulty and rarely withdraws from them.[68]
 
In the case Firma Foto-Frost v. Hauptzollamt Lübeck-Ost[69] regarding the question of whether a national court may establish the invalidity of a Commission decision, the ECJ decided that national courts do not have jurisdiction to proclaim Community acts to be invalid. Only the ECJ has such exclusive jurisdiction on the basis of Article 234 of the EC Treaty (before Article 177).
 
It must be emphasized that the jurisdiction of the ECJ is limited to Community law. Within the framework of its jurisdiction regarding preliminary rulings, the ECJ is not competent to establish the constitutionality and legality of national provisions.[70] With consideration of the full sovereignty of the Member States, such jurisdiction remains with national courts.[71]
 
According to Article 242 of the EC Treaty, actions brought before the ECJ shall not have suspending effect, however, the ECJ may, if it considers that circumstances so require, order that the application of the contested act be suspended. According to Article 243 of the EC Treaty, the ECJ may in any case before it prescribe any necessary interim measures. The EC Treaty does not contain the provision that interim measures against Community acts can be prescribed by national courts. However, in the case Atlanta Fruchthandelsgesellshaft (1) v. Bundesamt für Ernährung und Forstwirtschaft,[72] the question arose whether national courts may prescribe an interim measure against a regulation, regarding which the proceedings are pending according to Article 234 (then Article 177) of the EC Treaty. The ECJ decided that the EC Treaty must be interpreted in a manner such that it allows national courts to prescribe interim measures, but it set certain conditions for doing so.[73]
 
Shortly after Slovenia's integration into the EU, the Constitutional Court of the Republic of Slovenia encountered the question of prescribing interim measures against a Community act. In the above-mentioned case U-I-113/04, also referred to as "the Animal Feed Instructions Case", companies producing animal feed (JATA and others) based in Slovenia, challenged before the Constitutional Court the Rules on the Labelling and Packaging of Animal Feed, which the Government issued on the basis of the Directive of the European Parliament and of the Council on the marketing and composition of animal feed. The petitioners alleged the unconstitutionality of the Rules, inter alia, due to a violation of free economic initiative (Article 74 of the Constitution), and motioned that the Constitutional Court suspend the challenged Rules. With reference to such, they alleged that the challenged Rules entirely incorporate the Community directive, regarding the validity of which a court in the UK has already requested that the ECJ give a preliminary ruling on, and against which in the UK it prescribed interim measures according to the criteria set by the ECJ. The implementation of the contested directive was allegedly suspended also by some other courts in the Member States of the EU. The Constitutional Court by six votes against three temporarily suspended the challenged Rules on the basis of Article 39 of the Constitutional Court Act until the decision of the ECJ on the validity of the above-mentioned directive is reached (case C-453/03).
 
In the reasoning the Constitutional Court firstly established on the basis of Article 3a of the Constitution that the case concerned an EU directive, and that considering the fact that the petitioners challenged the provisions of the Rules, in its contents they actually challenged the directive itself, for the review of which the ECJ is indeed competent. The Constitutional Court in the discussed case, inter alia, established:
 
"8. As regards the fact that the Constitutional Court did not have to decide on the question whether it is on the basis of the first and third alineas of the first paragraph of Article 160 competent to review the consistency of (statutes and executive) regulations with the Constitution including situations which entail the direct implementation of European directives into the national legal order… As for the fact that in the concrete case [also] the question of the validity of the Directive which is the grounds for the Rules arose, the Constitutional Court did not have to review the question of whether and under what conditions the Constitutional Court would be in a position to suspend the implementation of the Rules, if it was merely a question of their compliance with the Constitution. In the system of legal protection, as ensured by Community law, individuals namely have the option to challenge before competent courts of a Member State not only the normative acts of that Member State, which entails the implementation of Community acts in the national legal order, but also the Community institutions` acts themselves, and to request their temporary suspension in proceedings before the courts of the Member State."
 
Notwithstanding the fact that in the above-mentioned case it was only a matter of an Order on a temporary suspension according to the Constitutional Court Act, the precedential effect of this case might be of a particular importance for the future case-law of the Constitutional Court. It may be re-established that also the order of the Constitutional Court on the temporary suspension of the Rules on Animal Feed follows from the autonomy and primacy of EU law. From this perspective, the Constitutional Court cannot be criticized for anything. Although the Constitutional Court for the present has left open the question what position should it take regarding its jurisdiction in cases of the review of executive regulations (the third alinea of the first paragraph of Article 160 of the Constitution), if EU acts were incorporated therein, it seems that in the discussed case it has already crossed the Rubicon. Implicite it has already declared in favour of such jurisdiction, as on 8 July 2004 it issued an interim measure according to Article 39 of the Constitutional Court Act. In so doing, the Constitutional Court placed itself in a position which is in other Member States held by lower, most often administrative courts. It is indeed true that regarding a review of the normative legal acts, the jurisdiction of the Slovenian Constitutional Court is very broad, and it is competent also to review the constitutionality and legality of executive regulations. Consequently, the Constitutional Court is already overloaded with work due to cases of an exclusively national character. Following integration into the EU this scope of work might even be extended, as we may speculate that a majority of the directives is incorporated into national law through executive regulations, and that the Slovenian Government will follow such practice also in the future. Therefore, it would be worthwhile for the Constitutional Court within the framework of its jurisdiction according to the Constitution and statute, and in compliance therewith, to find a way in a manner such that in reviewing executive regulations which entail the implementation of EU acts it will not act as the court of fist instance, but the court of last resort. The latter also pertains to the Constitutional Court regarding its position as determined by the Constitution. By all means, the Slovenian Constitutional Court has in this respect some additional manoeuvring space as regards the legal interest which must be demonstrated by every petitioner, and which it did not make good use of in case U-I-113/04. For this reason alone and not because of the acknowledgement of the autonomy and primacy of EU law, the above-mentioned order was not voted for unanimously.
 
For the relationship between national courts, including constitutional courts, and the ECJ, the "acte claire" doctrine as set forth by the ECJ is also important. According to this doctrine, national courts, including the highest court, may refrain from their duty to submit a question to the ECJ referred for a preliminary ruling, if the disputed provision of EU law has already been interpreted by the ECJ or if the correct application of EU law is so obvious as to leave no scope for any reasonable doubt.[74] The ECJ has enforced the "acte claire" doctrine in the above-mentioned CILFIT case.[75]
 
Some Questions from the Case-Law of Other Constitutional (and the Highest) Courts of the Member States
 
The primary question which the constitutional courts of the new Member States of the EU, including the Slovenian Constitutional Court, are interested in is how often up to the present have the constitutional or other highest courts of the Member States of the EU referred to the ECJ questions for a preliminary ruling. The Austrian Constitutional Court has so far done it four times, and the Belgian twice, whereas other constitutional courts are much more reserved. Up to the present such matters have not been brought before the ECJ by the German Federal Constitutional Court, the Italian Constitutional Court, the Spanish Constitutional Court, the Portuguese Constitutional Court and the French Constitutional Council.[76] Other courts which have referred to the ECJ within the scope of their jurisdiction according to Article 234 of the EC Treaty, have not necessarily done so in the function of constitutional courts.[77] Wedam Lukić draws particular attention to the German Federal Constitutional Court and the Spanish Constitutional Court, in particular with reference to their jurisdiction regarding constitutional complaints, which the Slovenian Constitutional Court also has.[78]
 
Another question concerns the relationship between EU law and constitutional law from the viewpoint of the primacy of EU law. Some constitutional courts of the Member States have been faced with this problem. The most well-known in this respect is the case-law of the German Federal Constitutional Court. In its renowned Solange I case of 1974 it adopted the standpoint that the application of the secondary sources of EU law is in the Federal Republic of Germany subject to unlimited review by the Federal Constitutional Court regarding fundamental rights.[79] The Federal Constitutional Court softened this position in the Solange II case and contented itself with the protection of fundamental rights at the Community level, and theoretically retained for itself their judicial review.[80]
 
The decisions of the German Federal Constitutional Court that followed gave the impression that the Court once again wanted to activate its claim to be competent to carry out judicial review. This particularly holds true for the prominent Decision on Maastricht of 1993, which referred to the review of the German Law Approving the Maastricht Treaty. The German Federal Constitutional Court decided that the ratification of the Maastricht Treaty was in accordance with the Constitution; however, in its decision it not only decided on the constitutional competence of Germany regarding the ratification of the above-mentioned Treaty, but also regarding the future position should the Community wish to exercise powers which were not precisely defined in the Treaty.[81] Other authors also agree that the text of this decision gives the impression that by this decision the Federal Constitutional Court retained for itself a permanent, although substantially limited supervisory role over the ECJ in view of respect for fundamental rights.[82] The German Federal Constitutional Court changed its previous standpoint in its judgment of 2000 on the market organization for bananas.[83] In 1994 the ECJ confirmed the conformity of the Regulation on bananas with EU law. On the grounds of this decision, the Frankfurt Administrative Court had referred to the Federal Constitutional Court, which did not review the question on the conformity of the Regulation on bananas with German fundamental rights, and declared the reference to be inadmissible.[84] In the reasoning of its decision, the German Constitutional Court only retained its claim to be competent to review EU law under very strict conditions, not only in a procedural but also in a substantive sense.[85]
 
The Italian Constitutional Court also initially resisted the superior position of EU law. In the Frontini case it expressed reservations similar to those of the German Federal Constitutional Court. The Frontini case of 1984 was followed by the case of Granital,[86] in which the Italian Constitutional Court adopted the position that Italian courts are not allowed to apply national law which is contrary to EU law, and must directly apply the later. With reference to this, it insisted on the standpoint that law which is contrary to European law is still valid until abrogated by the Constitutional Court.[87]
 
A different path was chosen by the Austrian Constitutional Court. Perhaps the reason lies in the fact that Austria, together with Sweden and Finland, became a member of the EU in 1995, when the integration system and consequently also the protection of EU law at the Community level were much more defined than in the initial period after the conclusion of the Treaty of Rome. Following integration into the EU, the Austrian legislature was forced to abide by EU law and national constitutional law.[88] Thus, the Austrian Constitutional Court has developed the "principle of double commitment" toward EU law.[89] It is the concept of the parallel validity of both legal orders, national and European: if EU law must be applied, it has priority, and a national norm which is not in compliance therewith, remains untouched; however, it must not be applied in circumstances in which EU law applies.[90] The Austrian Constitutional Court still reviews the compliance of Austrian legislation with the Constitution, although the application of contested legislation might be questionable due to the primacy of EU law.[91] EU law namely cannot be violated if a norm which is inconsistent with EU law is abrogated due to its inconsistency with the Constitution.[92] If in cases of "acte claire" the non-application of national legislation is clear, EU law is consequently applicable by the Constitutional Court.[93] If it is shown during the review of a norm before the Austrian Constitutional Court due to its alleged unconstitutionality, because it is allegedly contrary to EU law, that the alleged is indeed true on the grounds of an ECJ decision, the proceedings before the Constitutional Court are dismissed.[94]
 
Instead of a Conclusion – Some Possible Guidelines for the Constitutional Court of the Republic of Slovenia Following Integration into the EU
 
According to Article 1 of the Constitutional Court Act, the Constitutional Court is the highest body of the judicial power for the protection of constitutionality, legality, human rights and fundamental freedoms. As such it has already encountered its first two cases which referred to the application of EU law.
 
It is evident that the Slovenian Constitutional Court in general accepts the autonomy, direct effect and primacy of EU law, which is a legal order sui generis, and which does not concern international law.[95] The Constitutional Court stated this in cases Up-328/04/U-I-186/04.
 
The jurisdiction of the Constitutional Court is determined in Article 160 of the Constitution.
 
According to the first paragraph of Article 160 of the Constitution, the Constitutional Court has jurisdiction to review laws and other normative legal acts, and through its case-law has also developed the possibility to carry out subsequent review of treaties. Within this framework the Constitutional Court will have to develop its attitude particularly towards primary EU legislation. With reference to the latter, a question on the subsequent review of amending and accession treaties arises. It is more likely that the Constitutional Court, which according to the second paragraph of Article 160 of the Constitution has jurisdiction to carry out a preliminary review of constitutionality of treaties (similarly as the French Constitutional Council and the Spanish Constitutional Court), will review future primary legislation on the amending of and accession to the EU in such proceedings. Thus, it will enable the legislature to solve the possible constitutional impasse position by amendment of the Constitution.
 
With regard to the review of the secondary legal sources of the EU and their conformity with the Constitution, a question on regulations and decisions arises. This refers to cases of binding EU acts, whose review is not foreseen by the Constitution. Nevertheless, with regard to the principle of direct effect, they apply in the Member States. Will the Constitutional Court thus on the grounds of the authorizing norm of Article 3a of the Constitution find itself not competent to review such acts? The Constitutional Court will have to adopt a position regarding this question in its future case-law.
 
Directives are implemented into national legislation, and case U-I-113/04 has already shown where the fundamental dilemmas of the Slovenian Constitutional Court lie. Due to its jurisdiction determined in the third alinea of the first paragraph of Article 160 of the Constitution, the Constitutional Court has the power to decide on the conformity of executive regulations by which the Government implements numerous directives. At this point the observation of ECJ Justice Jann, that the constitutional courts are not as often faced with the application of EU law as other national courts, due to the fact that EU law does not usually interfere with cases which are handled by the constitutional courts, cannot be overlooked.[96] From this perspective, the Slovenian Constitutional Court might be an exception owing to its extensive jurisdiction, were it not to find the mechanisms by which it would prevent itself from becoming a court of first instance for the review of directives (here we refer to the directives which are implemented into the national legislation in the form of executive regulations).
 
In the future the Constitutional Court will also have to adopt a position regarding the application and the effect of EU law in reviewing constitutional complaints. This refers to the situation where in reviewing constitutional rights, the Constitutional Court acts as the court of the highest instance, which is, as already seen, under the conditions determined in the third paragraph of Article 234 of the EC Treaty, obliged to bring the matter before the ECJ for a preliminary ruling. In this connection an issue is raised whether not referring a question for a preliminary ruling to the ECJ is by itself a violation of a human right.[97] It is allegedly a violation of the rights to judicial protection and to a lawful judge, due to the fact that the ECJ has exclusive jurisdiction for the interpretation of EU law.[98]
 
Finally, before the Slovenian Constitutional Court a principal question is raised whether in its attitude towards EU law the Constitutional Court will try to retain the primacy of the national Constitution in view of the protection of fundamental rights, as has been previously done by the German Federal and the Italian Constitutional Courts. The constitutional basis for such possibility is given in the first paragraph of Article 3a, which envisages the transfer of "… the exercise of part of its sovereign rights to international organizations which are based on respect for human rights and fundamental freedoms, democracy and the principles of the rule of law…". It is difficult to foresee when (and whether at all) the Slovenian Constitutional Court will be faced with the situation that it will have to adopt a position whether it gives priority to EU law or to the constitutional rights and fundamental constitutional values. However, we may not overlook that Article 6 of the EU Treaty declares that liberty, democracy, respect for human rights and fundamental freedoms and the rule of law are common to all the Member States,[99] and as such an inalienable part of EU law, which the ECJ is given jurisdiction to ensure the respect thereof.