The year 2013 will be remembered as a very good year for the evolution of the judicial conversation between the Court of Justice and the constitutional courts of the member states. This is true at least with regard to the particular form of judicial cooperation that may be considered the institutional channel of dialogue between the Luxembourg Court and national judges: the preliminary ruling mechanism. In 2013 the French Conseil Constitutionnel for the first time in its history sent a request for a preliminary ruling to the ECJ and the latter answered the first preliminary ruling sought in 2011 by the Spanish Tribunal Constitucional. Moreover, the Italian Corte Costituzionale decided for the first time to raise a preliminary reference to the Luxembourg judges in the context of incidenter proceedings. This represents a second step, following an initial one taken in 2008 in so called direct proceedings. The new judicial path of the Italian Constitutional Court (ICC) is in line with the new season of cooperative constitutionalism in Europe.

Not unlike national parliaments, which have seen their influence eroded as power gradually shifted to Brussels, constitutional courts are, if anything, net losers of the integration process.1 At least lower domestic courts had some incentives to embrace the constitutional revolution initiated by the Court of Justice. For them, the twin doctrines of supremacy and direct effect combined with the Simmenthal mandate came as a promise of empowerment. It was a promise of empowerment against domestic legislators as lower courts gained the power to set aside statutes, in legal systems that had either made it the exclusive preserve of constitutional courts or denied it altogether to the judicial branch. But equally, it was a promise of empowerment against the higher echelons of the domestic judicial hierarchy as EU law and the European Court afforded lower court judges a convenient avenue to challenge established lines of case law. None of this applied to constitutional courts. Not only did legal integration entail the loss of a cherished monopoly that was a distinctive trait of the Kelsenian model of constitutional review. But it also meant that, as the body of EU law expanded, so too did the Court of Justice's remit and influence. Very much like in a zero-sum game, any jurisdictional gain for the Court of Justice came at a commensurate loss for constitutional judges. Worse still, for the constitutional courts that used to exert a tight grip on the operations of ordinary courts, or wished to establish such control, the ever-expanding reach of EU law together with the emergence of a powerful European Court posed a potentially ominous challenge to their authority over ordinary judges.

Ever since the days of Van Gend en Loos and Costa, national attitudes to the unilaterally proclaimed supremacy of EU law have invariably captured a great deal of academic and political attention. Since the mid-1990s most national constitutional courts have converged to the interpretative orthodoxy of a qualified acceptance of primacy, couched in a pluralist vision of the relationship between the EU and its Member States. As things stand at the moment, and especially against the backdrop of Declaration 17 of the Lisbon Treaty, primacy is expected to be the constitutionally recognised conflict resolution norm that national courts shall turn to in almost all circumstances.

The Greek Council of State in its Judgment 3470/2011 does not break this pattern, even in the face of a politically sensitive issue. When considering whether an irrebuttable presumption of incompatibility between tenderers for public works contracts and owners or main shareholders of media corporations is permissible under EU law, the Greek court unequivocally accepts the relevant ECJ preliminary ruling in Michaniki and recalibrates its interpretation of the national constitution accordingly. In doing so, however, the Council of State reads an obligation for consistent interpretation into the constitution itself, thus turning the doctrine of indirect effect into a pragmatic tool for constitutional pluralism in action.