¹ See Cartabia, Marta, Europe and Rights. Taking Dialogue Seriously, 5 European Constitutional Law Review 5, 23–29 (2009); Grabenwarter, Christoph, National Constitutional Law Relating to the European Union, in Principles of European Constitutional Law 83, 95–129 (Armin von Bogdandy & Jürgen Bast eds., 2nd ed., 2011).Google Scholar

² The expression “most disparaged branch” – in opposition to the image of the US judiciary as the “least dangerous branch” depicted by Alexander Bickel in 1962 – has been drawn from the title of a symposium held at the Boston University School of Law on 14–15 November 2008, on “The Most Disparaged Branch: The Role of Congress in the Twenty-First Century” then published by the Boston University Law Review. Jan Komárek, The Place of Constitutional Courts in the EU, 9 European Constitutional Law Review, 420, 421 (2013), has recently pointed to the problem of the threat coming from EU law for the supremacy of Constitutional Courts by quoting the words of the President of the Czech Constitutional Court, Pavel Rychetský. Very similar concerns can be inferred from the reports published on the website of the XVIth Congress of the Congress of European Constitutional Courts, available at http://www.confeuconstco.org/en/common/home.html.Google Scholar

³ See Weiler, Joseph H.H., European Neo-Constitutionalism: In Search of Foundations for the European Constitutional Order, XLIV Political Studies, 517, 532–533 (1996); Cartabia, Marta, Europe as a Space of Constitutional Interdependence: New Questions about the Preliminary Ruling, in this Special Issue. Google Scholar

⁴ Member States with Constitutional Courts, by which it is meant institutions established outside the judicial branch ad hoc for carrying out constitutional review of legislation, are: Austria, Belgium, Bulgaria, Croatia, the Czech Republic, France, Germany, Hungary, Italy, Latvia, Lithuania, Luxembourg, Poland, Portugal, Romania, Slovakia, Slovenia, and Spain. They follow the Kelsenian ideal of the concentrated model of constitutional review. In this regard, although Portugal has a mixed model of constitutional review of legislation, the Portuguese Constitutional Court does play a centralized role insofar as all decisions of ordinary judges declaring an act unconstitutional are usually appealed against before the Constitutional Court by the Public Prosecutor. The Maltese Constitutional Court, in spite of the name, is part of the judiciary. The Constitutional Courts that have used the preliminary reference procedure are those of: Austria, Belgium, France, Germany, Italy, Lithuania, Poland, Slovenia, and Spain.Google Scholar

⁵ See Visser, Maartje De & Claes, Monica, Courts United? On European Judicial Networks, in Lawyering Europe: European Law as a Transnational Social Field 79–80, 75 (Antoin Vauchez & Bruno De Witte, eds., 2013).Google Scholar

⁶ See Martinico, Giuseppe, The “Polemical” Spirit of European Constitutional Law: On the Importance of Conflicts in EU Law, in this Special Issue and Mayer, Franz C., Rebel Without a Good Cause: Karlsruhe's Misguided Attempt to Draw the CJEU into a Game of “Chicken” and What the CJEU Might do About It; Dagmar Schiek, The German Federal Constitutional Court's Ruling on Outright Monetary Transactions (OMT) – Another Step towards National Closure? 15 German LAW JOURNAL – Special Issue, OMT (2014).Google Scholar

⁷ Visser, Maartje De, Constitutional Review in Europe – A Comparative Analysis 53–74, 93–154, and 205–222 (2013).Google Scholar

⁸ See Cannizzaro, Enzo, Rinvio pregiudiziale e Corti costituzionali nazionali, in Scritti in onore di Giuseppe Tesauro, 819 (2014). Even from a procedural point of view, when it was necessary to ascertain the priority between the preliminary reference to the CJEU and the question prioritaire de constitutionnalité (QPC), it was the former that prevailed over the latter: see Joined Cases C-188/10 and C-189/10, Melki and Abdeli, 2010 E.C.R. I-05667. See also Case C-409/06, Winner Wetten, 2010 E.C.R. I-08015 and Case C-416/10, Križan, (Jan. 15, 2013), http://curia.guropa.eu/.Google Scholar

⁹ By contrast, in Italy the “counter limit” doctrine has recently been used by the Constitutional Court against international law: see decision no. 238/2014 of 22 October 2014.Google Scholar

¹⁰ See Schütze, Robert, European Constitutional Law 1-8 (2012).Google Scholar

¹¹ The Constitutional Court of Italy issued its first preliminary reference to the CJEU in an incidental proceeding in 2013 (order no. 207/2013), while in 2008 the preliminary reference was issued in a principaliter proceeding. See Repetto, Giorgio, Pouring New Wine Into New Bottles? The Preliminary Reference to the CJEU by the Italian Constitutional Court, in this Special Issue. Google Scholar

¹² Ackerman, Bruce A., We The People. Foundations 307 (1993).Google Scholar

¹³ See Albi, Anneli, Erosion of constitutional rights in EU law: A call for “substantive co-operative constitutionalism”, 9 Vienna Journal of International Constitutional Law (forthcoming 2015). In this Special Issue see Benedizione, Ludovica & Paris, Eleonora, Preliminary Reference and Dialogue between Courts as Tools for the Reflection on the EU Multilevel Protection of Rights. The case of the Data Retention Directive; Andreas Orator, The Decision of the Austrian Verfassungsgerichtshof on the EU Charter of Fundamental Rights: An Instrument of Leverage or Rearguard Action?; Miryam Rodríguez-Izquierdo Serrano, The Spanish Constitutional Court and Fundamental Rights Adjudication After the First Preliminary Reference. In particular, since 2012 the Austrian Constitutional Court has recognized the Charter of Fundamental Rights as a standard for constitutional review of national legislation implementing EU law (VfSlg 19.632/2012, Decision U 466/11-18 and U 1836/11-13, of 14 March 2012). The English translation of the judgment is available at https://www.vfgh.gv.at/cms/vfghsite/attachments/9/6/0/CH0006/CMS1353421369433/grundrechtecharta_english_u466-11.pdf.Google Scholar

¹⁴ Case C-399/11, Melloni, (Feb. 26, 2013); Case C-293/12, Digital Rights Ireland, (Apr. 8, 2014), http://curia.europa.eu/.Google Scholar

¹⁵ The clause has been used, however, by other courts, like the Austrian Supreme Administrative Court in the order for a preliminary reference to the CJEU in Case C-208/09, Sayn-Wittgenstein, 2010 E.C.R. I-13693.Google Scholar

¹⁶ For example, while some authors see the new identity clause as a cooperative tool between the European and national levels of government. See Guastaferro, Barbara, Beyond the Exceptionalism of Constitutional Conflicts: The Ordinary Functions of the Identity Clause, Yearbook of European Law 263 (2012); Bogdandy, Armin von & Schill, Stephan, Overcoming absolute primacy: Respect for national identity under the Lisbon Treaty, 48 Common Market Law Review 1417 (2011). Others do not share the view that the identity clause will necessarily support a process of “pacification” in the relationship between the CJEU and national courts. See also François-Xavier-Millet, L'Union européenne et l'identité constitutionnelle des États membres (2013); Martinico, Giuseppe, The “Polemical” Spirit of European Constitutional Law: On the Importance of Conflicts in EU Law, in this Special Issue. Google Scholar

¹⁷ See Lisbon judgment of German Constitutional Court, Second Senate, 2 BvE 2/08, 2 BvE 5/08, 2 BvR 1010/08, 2 BvR 1022/08, 2 BvR 1259/08, 2 BvR 182/09, Judgment of 30 June 2009; the English translation is available at https://www.bundesverfassungsgericht.de/entscheidungen/es20090630_2bve000208en.html. However, even in the only case in which a decision of the CJEU has been declared ultra vires by a Constitutional Court – PI. ÚS 5/12: Slovak Pensions of 31 January 2012 -, the Czech Constitutional Court did not make any reference to Art. 4(2) TEU and to the national identity clause. Indeed this decision has been described as “an unmeasured and poorly-reasoned response to a domestic conflict between the Constitutional and Supreme Administrative Court” rather than a “declaration of war against the CJEU.” See Komárek, Jan, Playing with matches: The Czech Constitutional Court declares a judgment of the Court of Justice of the EU ultra vires, 8 European Constitutional Law Review, 323 (2012).Google Scholar

¹⁸ See Martinico, supra note 6.Google Scholar

¹⁹ See Case, Jeremy F., Decision n. 2013-314P QPC, of 4 April 2013; François-Xavier Millet & Perlo, Nicoletta, The First Preliminary Reference of the French Constitutional Court to the CJEU: Révolution de Palais or Revolution in French Constitutional Law?, in this Special Issue. The role of the CJEU in criminal matters, however, is subject to limitations; for example, the CJEU cannot rule on the validity of police operations under EU law (Art. 276 TFEU).Google Scholar

²⁰ Opinion 2/13, pursuant to Article 218(11) TFEU, (Dec. 18, 2014), http://curia.europa.eu/.Google Scholar

²¹ See Cherubini, Francesco, The Relationship Between the Court of Justice of the European Union and the European Court of Human Rights in the View of the Accession, in this Special Issue. Google Scholar

²² See Dicosola, Maria, Fasone, Cristina, & Spigno, Irene, The Prospective Role of Constitutional Courts in the Advisory Opinion Mechanism Before the European Court of Human Rights. A First Comparative Assessment with the European Union and the Inter-American System, in this Special Issue. Google Scholar

²³ See Bardutzky, Samo, Constitutional Courts, Preliminary Rulings and the “New Form of Law”: The Adjudication of the European Stability Mechanism, in this Special Issue. Google Scholar

²⁴ Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], 2 BvR 2728/13. See the judgment of the CJEU on this referral, Case C-62/14, Gauweiler and Others, (June 16, 2015), http://curia.europa.eu/. See also the Special Section: The CJEU's OMT Decision, 16 German Law Journal (2015).Google Scholar

²⁵ Case C-370/12, Pringle, (Nov. 27, 2012), http://curia.europa.eu/.Google Scholar

²⁶ See Comments, Editorial, An unintended side-effect of Draghi's bazooka: An opportunity to establish a more balanced relationship between the ECJ and the Member States’ highest courts, 51 Common Market Law Review 375 (2014).Google Scholar

²⁷ Communication from the Commission on the application, from 1 August 2013, of State aid rules to support measures in favor of banks in the context of the financial crisis (“Banking Communication”), OJEU C216/1, 30 July 2013. See the Slovenian Constitutional Court's case, Case U-I-295/13, Order of reference of 6 November 2014 (still pending before the CJEU, Case C-526/14, Kotnik and Others) and the comment by Samo Bardutzky, The first preliminary reference to the Court of Justice of the EU by the Slovenian Constitutional Court: the case of the Commission's Banking Communication, available on the Constitutional Change Trough Euro-Crisis Law website (2015), at http://eurocrisislaw.eui.eu/news/the-first-reliminary-reference-to-the-court-of-justice-of-the-eu-by-the-slovenian-constitutional-court-the-case-of-the-commissions-banking-communication/.Google Scholar

²⁸ Lietuvos Respublikos Konstitucinis Teismas case, decision no. 47/04 of 8 May 2007.Google Scholar

²⁹ Constitutional Court of Slovenia, Case U-I-295/13, of 6 November 2014 (note 27).Google Scholar

³⁰ Constitutional Court of Poland, Case K 61/13, of 7 July 2015; the Case C-390/15 is pending before the CJEU. The preliminary reference originated from a constitutional complaint filed by the Polish Human Rights Defender (Ombudsman) because the tax regime on ebooks – if compared with that on normal books – was suspected to violate the constitutional principle of tax equality (Art. 32 of the Polish Constitution). At the same time, since the contested tax legislation on ebooks aimed to implement the Council Directive 2006/112/EC, on the common system of value added tax, the Polish Constitutional Court asked the CJEU whether this Directive was invalid as for how the legislative procedure for its adoption had been carried out (first preliminary question) and/or because it violates the principle of tax neutrality (second preliminary question). See Kustra, Aleksandra, Reading the Tea Leaves. The Polish Constitutional Tribunal and Preliminary Ruling Procedure, in this Special Issue. Google Scholar

³¹ Sadurski, Wojciech, Rights Before Courts: A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe 45–90 (2014).Google Scholar

³² See Lenaerts, Koen, The Unity of European Law and the Overload of the CJEU – The System of Preliminary Rulings Revisited, in The Future of the European Judicial System in a Comparative Perspective 211, 212 (Ingolf Pernice et al., eds., 2005).Google Scholar

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³⁴ See CJEU, Information Note on references from national courts for a preliminary ruling, OJ C 143/1 of 11 June 2005, para. 23, and CJEU, Information Note on references from national courts for a preliminary ruling, OJ C 297/1 of 5 December 2009, para. 23; more recently the Recommendations of the Court of Justice of the European Union, to national courts and tribunals in relation to the initiation of preliminary ruling proceedings, OJ C 338/1 of 6 November 2012, para. 24. The proposal for using the ‘green light procedure’ has also been supported in a Report by the Association of the Councils of State and of the Supreme Administrative Jurisdictions of the EU in 2007, available at http://www.juradmin.eu/seminars/DenHaag2007/Final_report.pdf. See Sarmiento, Daniel, Amending the Preliminary Reference Procedure for the Administrative Judge, 2 Review of European Administrative Law 29, 34 (2009). Even the European Parliament “urges consideration of a «green light» system.” See the European Parliament resolution of 9 July 2008 on the role of the national judge in the European judicial system, para. 31.Google Scholar

³⁵ Broberg, Morten & Fenger, Niels, Preliminary References to the Court of Justice of the European Union 28 (2nd ed. 2014) (Pointing out that there are many different forms of “green light procedure,” up to the point of allowing the referring Court to send a draft judgment to the CJEU that becomes final after a certain time limit.).Google Scholar

³⁶ Although not the follow up of the CJEU decision. See Rodríguez-Izquierdo Serrano, supra note 13.Google Scholar

³⁷ See Beukers, Thomas, The Bundesverfassungsgericht Preliminary Reference on the OMT Program: “In the ECB We Do Not Trust. What About You?”, 15 German Law Journal – Special Issue, OMT 343, 344 (2014).Google Scholar

³⁸ It remains to be seen what will be the reception of the CJEU judgment, Case C-64/12 (note 24) by the German Constitutional Court in its final decision expected in December 2015.Google Scholar

³⁹ Monica Claes, Luxembourg, Here We Come? Constitutional Courts and the Preliminary Reference Procedure, in this Special Issue. Google Scholar

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