¹ By the centralised model of judicial review of legislation I mean those systems where ordinary courts are not allowed to set aside ordinary laws as unconstitutional, since only a specific judicial authority, the constitutional court, is entrusted with the task and the power to strike down unconstitutional laws with erga omnes effect. This model, also referred to as ‘Kelsenian’ or ‘European’, is generally contrasted with the American model of diffuse review. Literature on the topic is prolific. For a comprehensive account see Comella, V. Ferreres, Constitutional Courts and Democratic Values. A European Perspective (Yale University Press 2009)CrossRefGoogle Scholar; for a recent overview of the different systems on a country-by-country basis see von Bogdandy, A. et al. (eds.), Handbuch Ius Publicum Europaeum. Band VI: Verfassungsgerichtsbarkeit in Europa (Müller 2015, forthcoming)Google Scholar.

² ECJ 9 March 1978, Case 106/77, Amministrazione delle Finanze dello Stato v Simmenthal. On the impact of the Simmenthal doctrine on constitutional courts see Claes, M., The National Courts’ Mandate in the European Constitution (Hart 2006) p. 387Google Scholar, and, with specific reference to the centralised model of judicial review, Ferreres Comella, supra n. 1, p. 125.

³ See Pérez, A. Torres, ‘The Challenges for Constitutional Courts as Guardians of Fundamental Rights in the European Union’, in P. Popelier et al. (eds.), The Role of Constitutional Courts in Multilevel Governance (Intersentia 2013) p. 49Google Scholar at p. 53 and de Visser, M., Constitutional Review in Europe. A Comparative Analysis (Hart 2014) p. 427Google Scholar. Michal Bobek suggests that the Charter could represent the capitis deminutio maxima for constitutional courts, i.e. their complete exclusion from the review of the majority of national legislation: see ‘The Impact of the European Mandate of Ordinary Courts on the Position of Constitutional Courts’, in M. Claes et al. (eds.), Constitutional Conversations in Europe. Actors, Topics and Procedures (Intersentia 2012) p. 207 at p. 301. An analysis of the recent case law of the ECJ on the issue can be read in Komárek, J., ‘The Place of Constitutional Courts in the EU’ 9 EuConst (2012) p. 420Google Scholar at p. 428, where he criticises the Court’s ‘doctrine of displacement’, ‘which marginalises constitutional courts by allowing other actors, particularly ordinary courts, to circumvent their authority or even directly challenge it’ (p. 449).

⁴ See de Visser, supra n. 3, at p. 133.

⁵ With regard to the Italian system, where, as noticed, the mechanism of the question of constitutionality plays a pivotal role, the impact of the Charter on the Constitutional Court and the latter’s possible marginalisation was carefully analysed, before the Charter was given legal binding force, by Cartabia, M. and Celotto, A., ‘La giustizia costituzionale in Italia dopo la Carta di Nizza’ 47 Giurisprudenza costituzionale (2002) p. 4477Google Scholar esp. at p. 4489.

⁶ Conseil constitutionnel 15 January 1975, 74-53 DC.

⁷ Cour de Cassation 24 May 1975, Jacques Vabre and Conseil d’État 20 October 1989, Nicolo.

⁸ See, for a general account, de Béchillon, D., ‘De quelques incidences du contrôle de la conventionnalité internationale des lois par le juge ordinaire (Malaise dans la Constitution)’ 14 Revue française de droit administratif (1998) p. 225Google Scholar.

⁹ See de Lamothe, O. Dutheillet, ‘Contrôle de constitutionnalité et contrôle de conventionnalité’ in Juger l’administration, administrer la justice. Mélanges en l’honneur de Daniel Labetoulle (Dalloz 2007) p. 315Google Scholar at p. 320 ff.

¹⁰ See Simon, D. and Rigaux, A., ‘La priorité de la QPC: harmonie(s) et dissonance(s) des monologues juridictionnels croisés’ 29 Les Nouveaux Cahiers du Conseil constitutionnel (2010) p. 63CrossRefGoogle Scholar. A similar priority rule was first introduced in Belgium in 2009 for similar reasons: see J. Velaers, ‘The Protection of Fundamental Rights by the Belgian Constitutional Court and the Melki-Abdeli Judgment of the European Court of Justice’, in Claes, supra n. 3, p. 323.

¹¹ ECJ 22 June 2010, Joined Cases C-188/10 and C-189/10, Aziz Melki and Sélim Abdeli.

¹² This point is emphasised in particular by Magnon, X., ‘La QPC face au droit de l’Union: la brute, les bones et le truand’, 84 Revue française de droit constitutionnel (2010) p. 761CrossRefGoogle Scholar at p. 786.

¹³ See Grabenwarter, C., ‘Verfassungsrecht, Völkerrecht und Unionsrecht als Grundrechtsquellen’ in D. Merten et al. (eds.), Handbuch der Grundrechte. Band VII/1: Grundrechte in Österreich (Müller, Manz 2014) p. 51Google Scholar at p. 60, and, for some examples, Id., ‘European Fundamental Human Rights in the Case Law of the Austrian Constitutional Court’, in L. Weitzel (ed.), L’Europe des droits fondamentaux. Mélanges en hommage à Albert Weitzel (Pedone 2013) p. 59 at p. 60. Note that ordinary courts cannot disapply a statute for its inconsistency with the Convention: Article 89, para. 1 of the Austrian Constitution spells out that they are not entitled to examine the validity of duly published laws. If the law cannot be interpreted in a way that avoids the conflict with the Convention, ordinary courts must refer the question to the Constitutional Court. As of 1 January 2015, any court can refer a question to the Constitutional Court, whereas prior to that date the courts of first instance were excluded: see Articles 89 and 140 of the Constitution, as amended by constitutional law BGBl I 2013/114.

¹⁴ See Öhlinger, T. and Potacs, M., EU-Recht und staatliches Recht (LexisNexis 2014) p. 168Google Scholar. In the Constitutional Court case law see e.g., VfSlg. 14.886/1997, 15.189/1998, 15.215/1998, 15.753/2000, 15.810/2000 and 18.266/2007, which expressly confirmed that the conformity of a law with EU law is not, as such, an object of the constitutional review.

¹⁵ Verfassungsgerichtshof 14 March 2012, VfSlg. 19.632/2012; full English translation available at <www.vfgh.gv.at/cms/vfgh-site/attachments/9/6/0/CH0006/CMS1353421369433/grundrechtecharta_english_u466-11.pdf.>, visited 6 August 2015.

¹⁶ In the words of the Conseil constitutionnel, in its 1975 judgment (supra, n. 6) para. 5: ‘A statute that is inconsistent with a treaty is not ipso facto unconstitutional’. More recently, the same doctrine was confirmed just after the entry into force of the QPC: ‘The argument based on the incompatibility of a statutory provision with the international and European commitments of France cannot be deemed to constitute an argument as to unconstitutionality’ (Conseil constitutionnel 12 May 2010, 2010-605 DC, para. 11).

¹⁷ ECJ 11 September 2014, Case C-112/13, A v B and others.

¹⁸ The Federal Asylum Tribunal, established in 2008, has been abolished in the context of the introduction of a two-tier system of administrative jurisdiction by constitutional law BGBl I Nr. 51/2012 (Verwaltungsgerichtsbarkeits-Novelle 2012). As of 1 January 2014, its competences are exercised by the newly-established administrative courts of first instance.

¹⁹ See Pöschl, M., ‘Verfassungsgerichtsbarkeit nach Lissabon: Anmerkungen zum Charta-Erkenntnis des VfGH’, 67 Zeitschrift für öffentliches Recht (2012) p. 587CrossRefGoogle Scholar at p. 590.

²⁰ Para. 25.

²¹ ECJ 1 December 1998, Case C-326/96, Levez, quoted in the Constitutional Court judgment at para. 27.

²² Paras. 30-36; the following quotations are taken from para. 33 and para. 35 respectively.

²³ Para. 40.

²⁴ Para. 44. Note that this second exception seems to contradict the core of the ruling: see Pöschl, supra n. 19, p. 598 and Merli, F., ‘Umleitung der Rechtsgeschichte’ 20 Journal für Rechtspolitik (2012) p. 355CrossRefGoogle Scholar at p. 358.

²⁵ At least as far as the judicial review of legislation triggered by ordinary courts is concerned: see the Opinion of the AG, infra n. 38.

²⁶ In its case law on the principle of equivalence the Court of Justice has reiterated that ‘every case in which the question arises as to whether a national procedural provision is less favourable than those concerning similar domestic actions must be analysed by the national court by reference to the role of that provision in the procedure, its conduct and its special features, viewed as a whole, before the various national bodies’: see ECJ 8 July 2010, Case C-246/09, Bulicke, para. 29, and, in the same sense, ECJ 1 December 1998, Case C-326/96, Levez, para. 44, ECJ 16 May 2000, Case C-78/98, Preston, para. 61 and ECJ 29 October 2009, Case C-63/08, Pontin, para. 46. Furthermore, according to the Court of Justice, the principle of equivalence ‘is not to be interpreted as requiring Member States to extend their most favourable rules to all actions brought in a certain field of law’: ECJ 26 January 2010, Case C-118/08, Transportes Urbanos y Servicios Generales SAL, para. 34, with further reference to the Court’s case law. In this judgment, however, the Court of Justice seems to apply the principle of equivalence to a specific procedural rule instead of taking into account the whole protection system of the rights conferred by EU law: see Magrassi, M., ‘Bussate e vi sarà aperto. La Corte di giustizia sulla presunzione di rilevanza delle questioni pregiudiziali e sul principio dell’equivalenza procedurale’ 12 Diritto Pubblico Comparato ed Europeo (2010) p. 867Google Scholar at p. 870. According to Koen Lenaerts, ‘the Transportes Urbanos case highlights the fact that the principle of equivalence prohibits “positive discriminations” in favour of actions based on national law, whatever the reasons behind such discrimination. The ECJ did not subscribe to the view that such discrimination could be justified by way of “compensation” for alleged procedural disadvantages encountered only in a purely national context’: see ‘The Decentralised Enforcement of EU Law: The Principles of Equivalence and Effectiveness’ in Scritti in onore di Giuseppe Tesauro [Essays in honour of Giuseppe Tesauro] (Editoriale Scientifica 2014) Vol. II, p. 1057 at p. 1063.

²⁷ See Pöschl, supra n. 19, p. 594-595 and Merli, supra n. 24, p. 356-357.

²⁸ Para. 29. Note that the rest of EU law continues not to be used as a standard of review; the Constitutional Court did not ruled out the principle that EU law is not a yardstick for constitutional review, but qualified it by introducing an exception limited to those Charter rights that correspond to constitutional rights. See C. Grabenwarter and M. Holoubek, Verfassungsrecht. Allgemeines Verwaltungsrecht (Facultas 2014) p. 161.

²⁹ See Merli, supra n. 24, p. 356.

³⁰ See in particular paras. 35 and 43.

³¹ See Pöschl, supra n. 19, p. 604-606 and Merli, supra n. 24, p. 357 and 360.

³² See Merli, supra n. 24, p. 359.

³³ As emphasised by Christoph Grabenwarter, judge at the Austrian Constitutional Court who participated in the decision, in this judgment’s light the Constitutional Court can be referred to as a ‘European Union judge’ (supra n. 13, p. 69).

³⁴ As Pöschl (supra n. 19, p. 597) points out, the Constitutional Court took a principle conceived to protect the individual’s rights and used it to protect its own position.

³⁵ Opinion of Advocate General Bot, delivered on 2 April 2014, para. 36.

³⁶ In this case note I focus only on Question 1, which concerns the Austrian Constitutional Court decision. To Questions 2 and 3 the Court answered that the appearance entered by a court-appointed representative does not amount to an appearance being entered by the defendant for the purpose of Article 24.

³⁷ By the mere reading of the Court decision, Question 1 does not seem to be relevant. The case does not raise a question on the consistency of a national law with the Charter, but rather a question on the interpretation of EU law. Therefore, in no case should the Oberster Gerichtshof have referred a question to the Constitutional Court, which makes Question 1 not relevant. According to the Advocate General, Question 1 is relevant ‘only if the answer to Questions 2 and 3 is that EU law precludes national legislation such as that at issue in the main proceedings’ (para. 32 of the Opinion), which does not seem to be the case.

³⁸ In the same sense see para. 68 of the AG’s Opinion: ‘In the circumstances, I do not see how refraining, in a given dispute, from applying a national statute that is contrary to EU law would be less favourable for the individual than initiating an interlocutory procedure for the review of constitutionality with a view to having that statute struck down. On the contrary, as the referring court itself points out, the implementation of such a procedure is relatively cumbersome, involving expense and additional delays for the parties to the proceedings, whereas the national court is able, directly in the course of the proceedings before it, to establish that a national statute is incompatible with EU law and to disregard that statute, thus securing immediate protection for the parties’. For an interesting comparison in the light of the principle of equivalence between the (Spanish) centralised review of the constitutionality of legislation and the diffuse review of the compatibility of domestic legislation with EU law see Transportes Urbanos, n. 26, supra, along with the Opinion of AG Poiares Maduro, in particular paras. 35-40.

³⁹ See paras. 28 and 29, from where the following quotation is taken.

⁴⁰ Para. 46. Note that what is at stake before the referring court is the Constitutional Court’s case law rather than ‘national legislation’.

⁴¹ Para 45.

⁴² This is excluded only in case of domestic legislation that merely transposes the mandatory provisions of an EU directive: in this case the preliminary reference to the Court of Justice enjoys priority (paras. 41-43).

⁴³ See, in particular, Sarmiento, D., ‘L’arrêt Melki: esquisse d’un dialogue des juges constitutionnels et européens sur toile de fond française’, 46 Revue trimestrielle de droit européen (2010) p. 588Google Scholar at p. 594.

⁴⁴ Simmenthal, n. 2 supra, para. 22.

⁴⁵ In this sense see Mastroianni, R., ‘La Corte di giustizia ed il controllo di costituzionalità: Simmenthal revisited?’ 59 Giurisprudenza costituzionale (2014) p. 4089Google Scholar at p. 4097, who criticises the weakening of the principle of primacy brought about by Melki and confirmed by A v B.

⁴⁶ Note that the Austrian Constitutional Court judgment was presented by Christoph Grabenwarter as a landmark decision, which was likely to provide an example to other constitutional courts (supra n. 13, p. 69). This being the case, the answer of the Court of Justice sounds particularly cold.

⁴⁷ For similar criticisms see Bossuyt, M. and Verrijdt, W., ‘The Full Effect of EU Law and of Constitutional Review in Belgium and France after the Melki Judgment’, 7 EuConst (2011) p. 355Google Scholar at p. 385.

⁴⁸ Id. at p. 387; in Bossuyt and Verrijdt’s view the organisation and functioning of constitutional review should enjoy protection under Article 4.2 TEU, as part of national identity (p. 388).

⁴⁹ It is not by chance that one of the last frictions between the Court of Justice and the German Constitutional Court concerns the Charter scope of application. See Bundesverfassungsgericht 24 April 2013, 1 BvR 1215/07, Counter-Terrorism Database, where the German Constitutional Court held that a broad interpretation of the Charter scope of application, as provided by the Court of Justice in Åkerberg Fransson, could be found to be ultra vires. On this judgment see Thym, D., ‘Separation versus Fusion – or: How to Accommodate National Autonomy and the Charter? Diverging Visions of the German Constitutional Court and the European Court of Justice’ 9 EuConst (2013) p. 391Google Scholar. More recently, in ECJ 6 March 2014, Case C-206/13, Siragusa, ECJ 27 March 2014, Case C-265/13, Torralbo Marcos and ECJ 10 July 2014, Case C-198/13, Julian Hernández the Court of Justice took a more restrictive view on the scope of application of the Charter.

⁵⁰ The abstract review of legislation performed by the Italian Constitutional Court is a case in point. According to Article 127 of the Italian Constitution the Government can challenge a regional law within 60 days from its publication and a Region can challenge a State law within the same term; in this proceeding EU law can be invoked as a standard of review and it is not rare that a regional law is struck down for its inconsistency with EU law. In this way the Constitutional Court strongly contributes to the enforcement of EU law: domestic legislation incompatible with EU law is quickly removed from the domestic legal order, which represents a better solution than its mere disapplication by ordinary courts (in this sense see the decision of the Austrian Constitutional Court, para. 43, with reference to the established case law of the Court of Justice). Note that it was in the context of abstract review of legislation that the Italian Constitutional Court raised its first preliminary reference to the Court of Justice (order No 103, 15 April 2008); only five years later a preliminary reference was raised in the context of the review of legislation triggered by ordinary courts (order No. 207, 18 July 2013): see Pollicino, O., ‘From Partial to Full Dialogue with Luxembourg: The Last Cooperative Step of the Italian Constitutional Court’ 10 EuConst (2014) p. 143Google Scholar.

⁵¹ A telling example is Tribunal Constitucional 2 July 2012, n. 145, Iberdrola v Comisión Nacional de la Energia: see Sarmiento, D., ‘Reinforcing the (domestic) constitutional protection of primacy of EU law’ 50 CML Rev (2013) p. 875Google Scholar. As mentioned above, that what is problematic in the Austrian Constitutional Court’s decision of 14 March 2012 is not the use of the Charter as a standard of review in proceedings stemming from direct recourses, but its use for the review of legislation triggered by ordinary courts.

⁵² That the marginalisation of constitutional courts by the Court of Justice affects the balance between individual and public autonomy in Europe is strongly claimed by Komárek, J., ‘National Constitutional Courts in the European Constitutional Democracy’ 12 International Journal of Constitutional Law (2014) p. 525CrossRefGoogle Scholar.

⁵³ The expression comes from the classic work of Lambert, E., Le gouvernement des juges et la lutte contre la législation sociale aux États-Unis. L’expérience américaine du contrôle judiciaire de la constitutionnalité des lois (Giard 1921)Google Scholar. On the establishment of constitutional courts in Europe as a way to ‘provide the benefits of judicial review, without turning into a government of judges’ see Sweet, A. Stone, Governing with Judges. Constitutional Politics in Europe (Oxford University Press 2000) p. 35CrossRefGoogle Scholar.