O sodiščuKonferencePCCEU, Bled, 30. september - 2. oktober 2004ContributionsPresentation by Dr Jan Mazak, President of the Slovak Constitutional Court

Presentation by Dr Jan Mazak, President of the Slovak Constitutional Court

Professor Ján Mazák, PhD.
President
Constitutional Court of the Slovak Republic 
  
National judiciary after the accession of the Slovak Republic
to the European Union
(Some general reflections)
 
Introductory remarks
 
The Slovak general judiciary has acted relatively independently in the system of the judicial power so far i.e. until May 1, 2004. The power of the Constitutional Court of the Slovak Republic interferes only with its position, powers and independent decision-making activity. This constitutional regulation of the Constitutional Court powers is reflected in the powers (and also in the duty) of the Constitutional Court to review the constitutionality of the procedures of general courts, especially from the point of view of the constitutional principles of fair trial unless such powers and duty fall under the jurisdiction of any other court according to law, i. e. usually a court of higher instance in the appellate proceedings (Article 127 paragraph 1 of the Constitution of the Slovak Republic).   
 
After joining the European Union, a new level of relations has arisen in the Slovak Republic between the Slovak general judiciary and nowadays an international judicial authority acting in the European Union as a guardian of the unified interpretation and application of communitarian law,  - the European Court of Justice.
 
This newly created relation between the national judiciary and the European Court of Justice has raised many issues demanding systemic solution.
 
Readiness of the Slovak legislation
 
The Slovak legal system settled the issues regarding the accession of the Slovak Republic to the European Union especially in the basic law of the state (in the Constitution). Suffice it to mention the Article of the Constitution of the Slovak Republic that has direct connection with the communitarian law and the position of the general judiciary. 
 
Pursuant to Article 7 paragraph 2 of the Constitution, the Slovak Republic may, by an international treaty, which was ratified and promulgated in the way laid down by a law, or on the basis of such treaty, transfer the exercise of a part of its power to the European Communities and the European Union. Legally binding acts of the European Communities and of the European Union shall have precedence over laws of the Slovak Republic.  The take–over of legally binding acts demanding the implementation will be realised through the law or government regulation pursuant to Article 120 paragraph 2. 
   
To some basic principles of procedures of national courts after joining the European Union during negotiations and discussions on court agenda     
 
On the immediate applicability of the communitarian law
 
The primary rule is, that the national courts of member states are obliged to apply directly those communitarian standards which fulfil the communitarian conditions of the immediate applicability.   
 
The immediate positive application of the communitarian rule means the direct application of this rule instead of an incompatible national regulation, or application solving the legal situation not defined by any national regulation.
 
Under the immediate negative application of the communitarian rule is to be understood the application in order to achieve the state in which the incompatible national regulation will not be used.   This usually leads to quashing decisions issued on the basis of this national regulation without need of positive application of the communitarian rule. It follows from above also that it concerns the application of the communitarian rule for the purpose of reviewing the legality or lawfulness of a national regulation or act (decision) issued on its basis.
 
The national courts of the member state are obliged, ex offo, to use immediately applicable communitarian rules. It always applies, if the national procedural norms stipulate, ex offo, to apply the national law. Furthermore, the national courts have to apply, ex offo, the communitarian rules also in that case if this application is necessary for guaranteeing the protection of rights resulting for a person from the specific communitarian rules.          
 
On the preferential application of the communitarian law
 
The preferential application of the communitarian law is solved in the above-mentioned Article 7 paragraph 2 of the Constitution.
 
The duty of the national courts (and also of other public authorities) to apply preferentially the applicable communitarian rules prior to the incompatible national rules means that the national courts in case of such a conflict always have to apply the communitarian rules and at the same time they have not to apply or not to take into consideration the national regulation which is incompatible with these rules.
 
It is necessary to emphasize that the national courts have to proceed in such way and to solve this conflict through the preference and application of the communitarian rule in the scope of their own power, ex offo, developing their own initiative.
 
Under § 109 sect. 1 (c) of the Rule of Civil Procedure the proceedings shall be suspended if the court has arrived to a conclusion that there is a question on preliminary reference which must be decided by the European Court of Justice. After suspension of the case, the court sends a preliminary reference to the European Court of Justice and awaits its decision.
 
 
 
 
On the proceedings on the preliminary question
 
The law of the European Communities is superior to the law of the member states (lets leave aside the delicate issue of the superiority of the communitarian law to national constitutional law).  The priority of the communitarian law requires unified application of this law in all member states. The application process of the communitarian law consists of two fundamental issues:
 
1.                             Unified interpretation of the communitarian law, while the unified interpretation must precede the unified application of this law in member states
2.                             The communitarian legal acts are considered valid in national environment and for that reason the national courts cannot reject the application of the communitarian legal acts only on the basis that they have arrived to the conclusion on invalidity or ineffectivity of the said communitarian legal acts.
 
These problems are solved in proceedings on preliminary question under Article 234 of the EC Treaty the purpose of which lies especially in the interpretation of the primary and secondary law and the review of the validity of the secondary legal acts. For that reason the proceedings on preliminary question are procedural enforcement of the priority of the communitarian law on the national level.
 
The obligation to submit the case to the Court of Justice for decision on the preliminary question relates only to the national court which proceeds in the case in the last instance in accordance with the judicial organisation and powers and competences under the Constitution and laws regulating these issues.  In Slovakia there are two such courts. Both the Supreme Court and the Constitutional Court sometimes could also be a competent regional court.
 
The question is whether the Constitutional Court belongs to courts which should make a preliminary reference.  It depends, but most of the opinions on this issue have agreed to involve Constitutional Courts to the scope of Art. 234 of the Treaty on European Communities.
 
           
The possible effects of the violation of the national court’s obligation to submit the case to the Court of Justice under Art. 234 of the Treaty
 
 
Relaying on the obligation and possibility of a national court to submit the case to the Court of Justice for decision on the preliminary question, it is necessary to underline that if a national court was a last instance court and in spite of this fact it did not submit the case to the Court of Justice, the communitarian law would be violated. Such a qualification of a national court negligence follows from the fact that the national court has to respect the Art. 234 of the Treaty if it is a last instance court. The violation of this obligation may result in commencement of proceedings before the Court of Justice in special type of proceedings on violation of the obligation following from the EC Treaty.  The member state whose court has not fulfilled its obligation under the quoted Art. 234 of the Treaty will be charged. The charge against the member state is justified for a simple reason. In spite of the independence being a functional principle of a national judicial system, a member-state court remains a public power authority of the concerned state, and the violation of the obligation following from the EC Treaty de jure is assigned to the member state.
 
On application of the domestic procedural code
 
In proceedings on communitarian claims and rights the national courts  hear and decide these cases usually under the domestic  procedural rules.
 
The work of the national courts on application of the domestic procedural regulations in proceedings in which cases following from communitarian standards are heard and decided, abide by the requirements of equivalence and efficiency.
             
 
The issue of competency of the national courts in relation to cases following from the communitarian law
 
Under fixed case-law of the Court of Justice it is a matter of each member state to define which court shall be competent locally and concerning the subject matter of the lawsuit when the subject of the proceedings is an individual right based on the communitarian law. The member states shall be liable for the effective protection of this right in every single case and it is not the task of the Court of Justice to solve whose jurisdiction shall the individual case fall under.
 
Concluding remarks
 
The Slovak judiciary is expecting its transformation into an effective part of the European judicial system. The right attitude might be a cautious optimism in spite of some expected difficulties. We are entering into a stabilised system and it has acted relatively long time in the fixed legal environment. We have at our disposal some experiences, case-law, developed doctrine and the willingness of the colleagues from the member states to share their experiences gained on their way from national judge to the European one. The rest, I think, will be our task. The first step is to get general knowledge then to learn special know-how and finally the improvement of skills in the application of the communitarian law.