Presentation by Dr Vassilios Skouris, President of the European Court of Justice

 
The Position of the European Court of Justice in the EU Legal Order and its Relationship with National Constitutional Courts
 
By Vassilios Skouris
President of the European Court of Justice
 
A) INTRODUCTION
 
Allow me first of all to thank you for your very kind invitation to participate in this excellent conference. We at the European Court of justice find that such initiatives are probably the only way of strengthening the cooperation and understanding between the supreme judicial entities in Europe. It is noteworthy in that respect that after the recent enlargement of the European Union, there are now 25 counties in which 3 legal systems enjoy parallel application: the respective national legal systems, the EU legal system and the European Convention of Human Rights. It is apparent that frequent bilateral and multilateral meetings between Constitutional (and other Supreme) Courts are essential in order for these three systems to coexist harmoniously.
 
For the purposes of my intervention this afternoon, I have chosen to present to you, first, the position of the European Court of Justice in this international setting, outline its jurisdiction and explain in what ways the Court may be brought to exercise competences of a constitutional nature. I will then pass on to the relationship between the European Court of Justice and national constitutional courts by focusing on the preliminary reference procedure and potential conflicts of jurisdiction.
 
B) THE EUROPEAN COURT OF JUSTICE: A CONSTITUTIONAL COURT?
 
In the European Community's 50-year existence one cannot help but noticing an astonishing development: the transformation of an international organization (with relatively limited purposes) to a quasi [federal] constitutional legal order. As the Court of Justice itself recognised in its famous Les Verts judgment
 
“the European Economic Community is a community based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty”.
 
This development was by no means accidental and it is quite well established that a number of factors contributed to its realisation. Nonetheless, one of the most important factors was the system of enforcement of European Community law, as provided for in the Treaty of Rome and its subsequent amendments.
 
I must underline from the outset that EC Treaty has reserved for the Court of Justice a most crucial role in ensuring adequate effective enforcement of Community law. By empowering the Court with jurisdiction over direct actions against Member States and Community institutions and by introducing the unique mechanism of preliminary reference, the drafters of the EC Treaty have managed to devise a system that, despite its shortcomings, has proven to be one of the main tools for the advancement of European integration.
 
The jurisdiction of the Court of Justice over direct actions
 
Under Article 226 of the EC Treaty, if the Commission considers that a Member State has failed to fulfil an obligation under the Treaty, it may bring the matter before the Court of Justice, after following a certain procedure. In addition, Article 227 of the EC Treaty provides that even a Member State which considers that another Member State has failed to fulfil an obligation under this Treaty may also bring the matter before the Court of Justice.
 
Indeed, the procedures laid down in Articles 226 and 227 of the EC Treaty were considered revolutionary at the time of their introduction, precisely because they grant mandatory jurisdiction to an international judicial institution, thus overcoming one of the main problems of international justice. However, it was not until these provisions were coupled by the amended Article 228 (as amended by the Treaty of Maastricht) that one could really assert that the Community had an effective enforcement mechanism. Article 228 vests the Court with the power to impose monetary sanctions on a Member State for non-compliance with a judgment of the Court.
                
Apart from powers of judicial review of Member State non-compliance with Treaty provisions, the Court of Justice also has jurisdiction to examine the legality of acts or omissions of the various institutions of the European Community. Under Article 230 of the EC Treaty, any Member State, the Council or the Commission can challenge the legality of acts - other than recommendations and opinions - adopted jointly by the European Parliament and the Council, acts of the Council, of the Commission and of the European Central Bank. Private plaintiffs can also institute such proceedings provided that they are individually and directly concerned by the act challenged.
 
Special attention must be drawn to the legal disputes between EU institutions that are brought before the Court. Most commonly it is either the Parliament or the Commission that are challenging the legal basis on which legislative acts were adopted, because it is that legal basis that specifies which institutions participate in the decision-making process. These disputes and the case-law that results from them are essentially of a constitutional nature. By interpreting the relevant Treaty provisions the Court helps to define more clearly the jurisdiction and competences of each of the EU’s institutions.   
 
The jurisdiction of the Court of Justice over preliminary references
 
The preliminary reference procedure is a mechanism of dialogue between national courts and the European Court of Justice. Given that much of the primary enforcement of Community law is in the hands of national administrative authorities, Article 234 of the EC Treaty provides the Court with the power to ensure the uniform application of EC law throughout the Community. The Court has jurisdiction to give preliminary rulings, at the request of national courts, concerning both the interpretation of the Treaty (Article 234 (a) of the EC Treaty)  and the validity and interpretation of acts of the institutions of the Community and the European Central Bank (Article 234 (b) of the EC Treaty). As a general rule, national courts and tribunals have discretion to request preliminary rulings. However, if an issue of Community law is raised before a national court or tribunal, against whose decisions there is no judicial remedy, then the latter is obliged to request a preliminary ruling.  
 
Hence, it comes as no surprise that the preliminary reference procedure is of crucial importance in relation to enforcement of EU law. Apart from ensuring uniform application of EU law, it was through preliminary references that the Court developed the fundamental doctrines of Community law which essentially gave rise to the debate about whether the Community legal order is constitutional or international. Principles such as the doctrine of supremacy, the doctrine of direct effect, the doctrine of implied powers, the protection of human rights within the Community legal order, find their origin in preliminary rulings and have provided EU law with the necessary theoretical background that would ensure effective enforcement vis-a-vis Member State law. In the celebrated Francovich judgment the European Court of Justice went even as far as to create a quasi sanction mechanism by stating:
 
“[T]he full effectiveness of the Community regulations would be challenged, and the protection of rights that they recognize would be weakened, if individuals did not have the possibility of obtaining restitution when their rights are encroached upon  by a violation of Community law  on the part of a Member State” (emphasis added).
 
Despite its obvious advantages, the preliminary reference procedure is not flawless. First of all, not every violation of Community law comes before a national court and even when it does, there is no guarantee that lower national courts will make use of the procedure every time. In addition, there is no guarantee that the national judge will fully adhere to the Court's ruling and apply Community law as prescribed by the latter. I will return to these issues in more detail when examining the relationship of the European Court of Justice and national constitutional courts.
 
Is the Court of Justice a Constitutional Court?
 
In order to appreciate the exact nature of the European Court of Justice and whether it could be considered as a purely constitutional Court, we have to view the system of enforcement of EU law by the Court in its entirety. In doing so one cannot help but noticing a basic feature: duplicity. Indeed, it can be easily observed that the relevant provisions examined above, ensure the enforcement of Community law on two levels: the Community level (through direct actions) and the Member State level (through preliminary references). Furthermore, in both procedures the Court has jurisdiction to

• interpret the Treaty provisions,
• control Member State non-compliance with Treaty provisions and
• control the legality of acts or failures to act by institutions of the Community.

 
It is interesting to examine briefly the function of this duplicity. First of all, the two levels of judicial enforcement by the Court of Justice complement each other in a unique way. The weaknesses of direct actions noted above are remedied to a great extent by the preliminary reference procedure. A European Court judgment in an Article 226 procedure remains declaratory and might not be complied with by a Member State until the Commission decides to bring an Article 228 action. After a preliminary ruling, it is the national court that renders the final judgment and national court judgments cannot be easily disregarded. Furthermore, the preliminary reference procedure lacks the political character of the decision to initiate an Article 226 procedure; important and minor violations can appear before the Court; the “centralized” direct enforcement under an Article 226 procedure is coupled with the “decentralized” indirect enforcement under Article 234, with private individuals monitoring compliance with EC law.
 
Secondly, the system of enforcement, and therefore the Court, enjoys far more credibility due to the fact that it includes judicial review of the legality of the acts or omissions by Community institutions. Community law is not enforced selectively.
 
Finally, the dual character of the system enables enforcement of Community law by the Court of Justice both in vertical relationships (between Community institutions and Member States, between Community institutions and individuals and between Member States and individuals) and in horizontal relationships among individuals.
 
In view of these considerations, I believe that the European Court of Justice cannot be considered as a Constitutional Court in the sense this term is used in national legal orders. It is certainly entrusted with the authoritative interpretation of the EU’s constitutional charter, it does have jurisdiction to control the legality, with regard to this Charter, of all legislative or administrative measures adopted within the sphere of EU law and lastly it is the only judicial authority that can resolve conflicts of jurisdiction between the EU institutions. However, the Court also has jurisdiction over appeals brought against judgments and orders of the Court of first instance. It will soon have the option of reviewing appellate judgements of the Court of First Instance. In preliminary references it frequently interprets EU law provisions of minor importance. To illustrate this with an example I will only say that the Court has rendered judgments on the customs classifications of pyjamas, female underwear and integrated printer-fax machines. Moreover, an infringement action brought by the Commission against a Member State for failure to comply with certain provisions of the waste management directive can hardly be characterised of a constitutional nature.
 
Hence, if I were to seek the Court’s counterpart in national legal orders I would most probably not look towards constitutional courts but towards supreme courts. I do believe though that the most accurate characterisation of the European Court of Justice is that of a hybrid court performing both the functions of a supreme and a constitutional court. 
 
C) THE RAPPORT BETWEEN THE ECJ AND NATIONAL CONSTITUTIONAL COURTS
 
Having established that, I would now like to examine the relationship between the European Court of Justice and national constitutional courts. In doing so I will focus on three particular aspects: the nature of the preliminary reference procedure, the obligation to make a reference imposed upon national courts adjudicating at last resort and the issue of possible conflicts of jurisdiction.
 
The nature of the preliminary reference procedure
 
Let me stress out from the very beginning that, from our perspective, the relationship between the European Court of Justice and national constitutional courts is one of cooperation. It is certainly true that EU law may enjoys supremacy over national law and that, most of the times, EU law may also be directly applicable in Member States’ legal orders. However, that does not mean that national supreme courts, and especially national constitutional courts, are institutionally subordinate to the European Court of Justice.
 
On the contrary, the judicial architecture of the European Union and the Member States’ judiciaries must be viewed as parallel systems, coexisting within the same supranational structure, and having, in principle, their own proper areas of jurisdiction. If one studies closely the mechanism of the preliminary reference procedure, one can perceive that it is a perfect illustration of that relationship of cooperation.
 
The preliminary reference procedure is essentially a dialogue between the national judge and the Court of Justice. The national court refers a question of EU law to the European Court of justice along with all the factual and legal issues surrounding the case at hand. The Court of Justice interprets EU law and provides answers to the questions of the national judge. However, it does not render a definitive judgment on the case since it does not have the jurisdiction to do so. In other words, it does not try the case. It is up to the national judge to proceed to the fact-finding, to the interpretation of the national law applicable and to the application of EU law. The European Court interprets EU law and provides the guidelines for its application by the national judge, but it is in fact the latter that applies EU law on the specific case.
 
Article 234, paragraph 3, of the Treaty
 
Notwithstanding its collaborative nature, the preliminary reference procedure, as provided for in Article 234 of the Treaty, does impose certain obligations on national courts.
 
As I hinted earlier in my presentation, under the Article 234 procedure,   where a question of EU law “is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.”
 
This provision is widely regarded as imposing an obligation on national courts hearing a case at last instance to request a preliminary ruling from the Court of Justice, if an issue on the interpretation or the validity of EU law arises before that court. National constitutional courts will generally fall upon that definition, although not always, therefore it is important to explain the reasons why such an obligation was included in Article 234.
 
Given that, as I argued earlier, the preliminary reference procedure was conceived as a mechanism of cooperation and dialogue, it could never have imposed a general obligation upon all national courts to refer cases to the Court of Justice where issues of EU law arise. Such a solution would be inconceivable not only back in 1958, when the Treaty was signed, but even today.
 
However, one has to take into account that the preliminary reference procedure was established in order to ensure the uniform interpretation of EU law throughout the European Union. That uniformity would be gravely compromised if there were no adequate safeguards added to a system essentially based on voluntary cooperation. Article 234, paragraph 3, of the Treaty constitutes precisely that type of safeguard. If an issue of EU law is either ignored or misinterpreted by lower courts without prior reference to the European Court of Justice, the obligation imposed on the court hearing the case at last instance under Article 234, paragraph 3, provides an assurance that the issue will normally be brought before the Court of Justice.
 
There is however another safeguard in the preliminary reference procedure which does not have a legislative source but finds its basis on the Court’s case-law. For several years academics and scholars have debated on whether an infringement of EU law by a supreme national court can be in anyway prevented or even sanctioned. The European Court of Justice has recently given a clear answer to that question in the Köbler judgment.
 
I would not like to refer to the factual details of that case. I will very schematically say that the supreme court of a Member State requested a preliminary ruling from the Court of Justice. After having been informed of previous pertinent case-law of the Court of Justice, the national Court withdrew the request apparently considering that the question raised was adequately answered by the existing case-law. However, it did not apply the reasoning of that case-law and held otherwise. Mr Köbler, whose claim was dismissed as a result, brought an action for damages against the Member State (Republic of Austria) for reparation of the loss which he allegedly suffered as a result of the national court’s ruling. He maintained that the judgment of the national court infringed directly applicable provisions of Community law, as interpreted by the Court in its existing case-law.
 
In a landmark judgment the European Court of Justice held that
“in the light of the essential role played by the judiciary in the protection of the rights derived by individuals from Community rules, the full effectiveness of those rules would be called in question and the protection of those rights would be weakened if individuals were precluded from being able, under certain conditions, to obtain reparation when their rights are affected by an infringement of Community law attributable to a decision of a court of a Member State adjudicating at last instance.

It must be stressed, in that context, that a court adjudicating at last instance is by definition the last judicial body before which individuals may assert the rights conferred on them by Community law. Since an infringement of those rights by a final decision of such a court cannot thereafter normally be corrected, individuals cannot be deprived of the possibility of rendering the State liable in order in that way to obtain legal protection of their rights.”
 
That statement of principle, which I may add was not considered applicable in this particular case, constitutes another safeguard of the system. If a higher or supreme court disregards its obligation to request a preliminary ruling or disregards the ECJ’s interpretation of EU law provisions, then private individuals whose rights are affected can hold the Member State liable and ask for reparation of any damages sustained.  
 
Potential conflicts of jurisdiction
 
The last issue I would like to present in this part of my presentation is that of potential conflicts of jurisdiction between the European Courts of Justice and national constitutional and supreme courts. I will focus on the field of fundamental rights and more particularly on the issues of Kompetenz-Kompetenz and the situation that will emerge after the formal adoption of the Charter of Fundamental Rights of the European Union as a binding legal text.
 
The term Kompetenz-Kompetenz in this context refers to the jurisdiction which is competent to rule on whether Community measures are ultra vires. Is it just the European Court of Justice or also the national constitutional courts that will have the authority to decide whether a Community measure is unconstitutional? Could there be conflicts of jurisdiction?
 
The Court has given an explicit answer to that question in its Foto-Frost judgment, by stating that it has exclusive authority to rule on the validity of the acts of Community institutions even if their validity was challenged before a national court. The Court further claimed that this was the only conceivable answer to this question since the Treaty established a complete system of judicial review destined to vest the Court with the power to control the legality of acts of Community institutions. Moreover, the Court stated that Community institutions are not guaranteed the right to intervene before national court procedures and that a different solution would endanger the coherence of the system of judicial review as provided for in the EC Treaty.
 
The Court's argumentation seems quite persuasive but the German Bundesverfassungsgericht and the Italian Constitutional Court have in the past expressed a somehow different view. They have essentially held that it is national constitutional courts that have the ultimate authority to determine whether the act of a Community institution is compatible with their respective national constitutions.  
 
Some commentators refer to this development as a major constitutional crisis. Even the term Mutual Assured Destruction has been employed to describe this issue. Indeed, one can envisage a catastrophe if acts of Community institutions had a different status in each of the 15 national legal orders. However, one has to take into account that this jurisprudence of certain national constitutional courts was developed in the specific field of the protection of fundamental rights and that it was based on the absence of Bill of Rights at the European Union level. The Court of Justice has since developed a comprehensive case-law on fundamental rights protection and routinely subjects EU and national legislative and administrative measures to fundamental rights scrutiny. As a result, it seems that national constitutional courts are gradually adopting a more flexible approach to that issue.
 
 
But conflicts of jurisdiction and especially conflicting case-law may occur in the field of fundamental rights also in matters of substance. Especially after the upcoming adoption of the Charter of Fundamental Rights of the European Union as a binding legal text, we will be faced with a situation where, as far as EU Member States are concerned, three systems of fundamental rights protection will be applicable: national constitutions, the European Convention on Human Rights and the Charter.
  
I will limit my self to sharing only a few thoughts on that issue. The introduction of a legally binding Bill of Rights for the EU is certainly a very important step forward towards increasing the democratic legitimacy of the EU and advancing European integration. However, the incorporation of the Charter into the forthcoming Constitutional Treaty will not literally introduce a third system of protection of fundamental rights in Europe. The EU is no stranger to the protection of fundamental rights therefore it would not be an exaggeration to suggest that a third system of protection already exists.
 
Nonetheless, this does not mean that the added value of a legally binding Charter will be limited. On the contrary, transparency, codification and legal certainty are of paramount importance in the field of fundamental rights protection and they cannot be effectively achieved without the introduction of a legally binding Bill of Rights.
 
These advantages outweigh all the potential problems. It is true that a multitude of sources of law with sometimes overlapping fields of application is certainly not efficient and can be the source of confusion for private individuals, lawyers and judges. The range of the protected rights and the level of protection can be different from one text to another. The risk of conflicting case-law between the Court of Justice on the one hand and national supreme courts and the EurCourtHR on the other is always present. But these problems are by no means novel and they will surely not be the result of the transformation of the Charter into a binding legal text.
 
Furthermore, the evolution of fundamental rights protection in the EU clearly demonstrates that such difficulties are not insurmountable and can be resolved in a variety of ways. Differences in the rationae materiae field of application of the Charter, of the ECHR and of national constitutions would normally be negligible due to the common long-standing tradition of human rights protection in Europe and to the overall harmonising effect of the ECHR. Conflicting case-law, especially between the ECJ, the ECHR, and national constitutional courts has been a rare and marginal occurrence and that risk can always be minimised by a close cooperation between those Courts.
 
Lastly, the lack of efficiency and coherence resulting from the parallel application of three systems of protection of fundamental rights can most probably be reduced by the accession of the EU to the ECHR.
 
 
D) CONCLUDING REMARKS
 
I have presented to you the role of the European Court of Justice as the “Constitutional” and “Supreme” Court of the European Union as well as the main issues pertaining to its relationship with national constitutional courts. Before ending my intervention this afternoon, I would like to submit two concluding remarks that could further stimulate our debate:
·        Both the European Court of Justice and national constitutional courts of EU Member States are faced with the reality of an enlarged Europe. 25 Member States means 25 national legal systems, 25 national legal traditions and much more than 25 supreme courts around Europe. Further enlargements are also programmed. Ensuring a better understanding and cooperation between the institutions entrusted with the administration of justice is paramount to the advancement of European integration.
·        Another challenge that lies ahead of us is also the adoption of the European Constitution. As was the case for EC Treaty, the task of interpreting the European Constitution will not only fall upon the Court of Justice but also to national courts and especially the constitutional courts. It is my firm belief that by codifying the basic principles of EU law, by clearly defining the competences of the EU and by introducing a comprehensive Charter of Fundamental Rights, the European Constitution is a document that could bring Europe closer to its 400 citizens. It is up to us to live up to the challenge.
 
Thank you very much for your attention. 
 
 
POVZETEK USRS

Položaj Sodišča Evropskih skupnosti (SES) v pravnem redu EU in njegovo razmerje z nacionalnimi ustavnimi sodišči
 
 
Referat obravnava predvsem dve vprašanji: (1) položaj SES v mednarodnem okviru, njegovo pristojnost in dejstvo, ali ga je šteti za ustavno sodišče ter (2) razmerje med SES in nacionalnimi ustavnimi sodišči glede reševanja predhodnih vprašanj in morebitnih sporov o pristojnosti.
 
V zvezi z vprašanjem, ali je SES šteti za ustavno sodišče, avtor poudarja transformacijo mednarodne organizacije v kvazi (federalni) ustavni pravni red. Pri tem je Pogodba o ustanovitvi Evropskih skupnosti (PES) podelila SES najpomembnejšo vlogo pri učinkovitem izvrševanju prava Skupnosti. Sodišče je v tem okviru pristojno predvsem za odločanje o tožbah proti državam članicam in institucijam Skupnosti ter za odločanje o predhodnih vprašanjih. Ti dve pristojnosti pa sta (bili) najpomembnejši sredstvi Sodišča za razvoj evropske integracije. Odločanje o prehodnih vprašanjih, ki jih na SES naslovijo sodišča držav članic, je po eni strani pomembno sredstvo dialoga med nacionalnimi sodišči in SES, po drugi strani pa omogoča enotno uporabo prava ES v celotni Skupnosti. V okviru odločanja o takšnih vprašanjih je SES razvilo nekatere temeljne doktrine prava Skupnosti, kot so doktrina nadvlade prava ES nad nacionalnim, doktrina neposrednega učinka prava ES, doktrina implicitnih pristojnosti in varstvo človekovih pravic znotraj prava Skupnosti. Toda postopek odločanja o predhodnih vprašanjih tudi ni brez pomanjkljivosti, ki se tičejo predvsem problema doslednosti pri postavljanju zahtev za predhodno odločanje SES s strani nacionalnih sodišč in njihovega upoštevanja odločitev SES.
 
Sicer pa avtor meni, da SES ni šteti za ustavno sodišče v smislu, kot ga pojmujemo v nacionalnih pravnih sistemih. Po eni strani mu je podobno, saj je pristojno za razlago ustavne listine EU ter nadzira tudi zakonitost raznoraznih ukrepov na nivoju Skupnosti. Kar pa ga od ustavnega sodišča razlikuje, je pristojnost odločanja o pritožbah glede odločb Sodišča prve stopnje. Zato je morda bolj podobno vrhovnemu sodišče znotraj nekega nacionalnega pravnega sistema. Navsezadnje bi mu lahko rekli posebno sodišče, ki izvaja funkcije tako vrhovnega kot ustavnega sodišča.
 
Glede razmerja med SES in nacionalnimi ustavnimi sodišči avtor obravnava tri sklope področij: postopek predhodnega odločanja, obveznost sodišč zadnje instance, da zahtevajo takšen postopek, in vprašanje morebitnih sporov o pristojnosti. Sicer gre v zvezi s postopkom predhodnega odločanja predvsem za sodelovanje med SES in nacionalnimi ustavnimi sodišči oziroma za dialog med nacionalnim sodnikom in SES. Pomembnost določbe, da morajo nacionalna sodišča zadnje instance obvezno začeti postopek predhodnega odločanja pred SES, če gre za vprašanje razlage prava Skupnosti, pa je v tem, da se na ta način zagotovi (enotna) razlaga SES v primeru, če bi nižje nacionalno sodišče morebiti ignoriralo ali celo napačno razlagalo določbo prava EU. Odločitev v zadevi Kőbler pa daje strankam možnost zahtevati odškodnino v primeru, da sodišče zadnje instance ne spoštuje zahteve po naslovitvi predhodnega vprašanja na SES.
 
Glede morebitnih sporov o pristojnosti med SES in nacionalnimi ustavnimi sodišči se avtor omeji na vprašanje temeljnih pravic. Tu izpostavi predvsem začetna stališča nemškega in italijanskega ustavnega sodišča, ki sta menili, da sta pristojni za končno presojo o tem, ali akti Skupnosti kršijo njihove ustavne določbe. Ko pa se je EU bolj posvetila spoštovanju človekovih pravic, sta tudi ti sodišči omilili svoja prejšnja stališča in postali v tem pogledu bolj fleksibilni.
     
V zvezi z dejstvom, da se trenutno vzpostavljajo trije sistemi varstva človekovih pravic (EU, EKČP in nacionalni sistemi), avtor meni, da to lahko povzroči številne nejasnosti. Za te pa je prepričan, da jih bodo lahko razrešili v duhu dialoga in sodelovanja ob dejstvu, da vsi trije sistemi varstva človekovih pravic v bistvu temeljijo na skupni tradiciji. Pri tem meni, da bi pristop EU k EKČP gotovo veliko prispeval k učinkovitosti in doslednosti varstva na tem področju.
 
Ne gre pa spregledati tudi sprejema Evropske ustave, ki naj bi s kodifikacijo temeljnih načel prava EU, z jasno opredelitvijo pristojnosti EU in z vključitvijo obsežne Listine temeljnih pravic Evropo približalo njenim 400 milijonom prebivalcev. Kot velja za PES, bo njena razlaga ne le naloga SES, temveč tudi nacionalnih, še posebej ustavnih sodišč.