¹ I will here use the notion of “Constitutional Court” in a limited sense, referring only to those specialized “kelsenian” courts that have been established with a view to reviewing the constitutionality of primary legislation, and excluding those highest or supreme courts that have jurisdiction to review questions of constitutionality, in addition to their function of supreme court of legality, such as the Irish Supreme Court, the Cypriot Supreme Court or the Danish Højesteret, even though they too are members of the Conference of European Constitutional Courts. In the EU, the following courts qualify: the Austrian Verfassungsgerichtshof, the Belgian Cour constitutionnelle, the Bulgarian constitutional court, the Croatian Ustavni sud, the Czech Ústavní soud, the French Conseil constitutionnel, the German Bundesverfassungsgericht, the Hungarian Köztársaság Alkotmánybírósága, the Italian Corte costituzionale, the Latvian Satversmes tiesa, the Lithuanian Konstitucinis Teismas, the Luxembourg Cour constitutionnelle, the Polish Trybunał Konstytucyjny, the Portugese Tribunal Constitucional, the Romanian Curtea Constituţionalâ, the Slovakian Ústavný súd, the Slovenian Ustavno Sodišče, and the Spanish Tribunal Constitucional, totaling a number of 18 specialized constitutional courts, or possibly 19 if one includes also the Maltese Constitutional Court. Interestingly, the Conference of European Constitutional Courts has admitted in 2014 the Dutch Hoge Raad, which does not have jurisdiction to review the constitutionality of primary legislation.Google Scholar

² See Corte costituzionale, decision 13/1960 of 16 March 1960 and decision 536/1995 of 29 December 1995.Google Scholar

³ Famously, see Weiler, Joseph H.H., Editorial: Judicial Ego, 9 Int'l J. Const. L. 1, 1-4 (2011).Google Scholar

⁴ Of course, the CJEU has on several occasions exhibited similar signs of a tendency to jealously guard its competences and of “judicial ego”, as most recently in Opinion 2/13 on accession to the ECHR (Opinion 2/13, pursuant to Article 218(11) TFEU, (Dec. 18, 2014), http://curia.europa.eu/). See generally Witte, Bruno De, A selfish Court? The Court of Justice and the design of international dispute settlement beyond the European Union, in The European Court of Justice and External Relations Law—Constitutional Challenges 33 (Marise Cremona & Anne Thies eds., 2013).Google Scholar

⁵ It is obvious that what the Bundesverfasssungsgericht did in its referral on the OMT, reserving the right not to follow the decision of the CJEU and declare the OMT not applicable in Germany, even if the CJEU would save the decision under EU law, is in clear breach of the system as set out in the Treaties.Google Scholar

⁶ This has not been the case for those supreme courts that have jurisdiction to conduct constitutional review, such as the Irish High Court, Court of Appeal and Supreme Court or the Danish Højesteret, or for highest courts that, while not having jurisdiction to review the constitutionality of national law strictly speaking, come close substantially, such as the UK Supreme Court, the Estonian Riigikohus or the Dutch Hoge Raad and Raad van State. They do regularly make references including also on questions that could be termed “constitutional”, such as fundamental rights issues.Google Scholar

⁷ A recent example of the latter situation is the reference made by the Czech Highest Administrative Court in the Slovak pensions case, leading to the Landtová decision of the CJEU: Case C-399/09, Landtová, 2011 E.C.R. I–5573. On the feud between the Czech courts and the involvement of the CJEU therein see Bobek, Michal, Landtová, Holubec, and the Problem of an Uncooperative Court: Implications for the Preliminary Rulings Procedure, 10 Eur. Const. L. Rev. 54, 54–89 (2014).Google Scholar

⁸ Case 11/70, Internationale Handelsgesellschaft, 1970 E.C.R. 1125; Case 106/77, Simmenthal, 1978 E.C.R. 629; Case C-465/11, Michaniki, 2012 E.C.R. 801; Case C-399/09, Landtová, 2011 E.C.R. I–5573; Case C-148/13, C-149/13 and C-150/13, A, B and C v. Staatssecretaris van Veiligheid en Justitie, 2014 E.C.R. 2406.Google Scholar

⁹ This point is further developed in Claes, Monica & Witte, Bruno De, The Role of National Constitutional Courts in the European Legal Space, The Role of Courts in a Context of Multi-level Governance 79–104 (Patricia Popelier, Armen Mazmanyan, & Werner Vandenbruwaene eds., 2012).Google Scholar

¹⁰ Take, for example, the French Conseil constitutionnel convincing the Cour de cassation and the Conseil d'État that the review in the light of EU law did not amount to a review of the constitutionality and was therefore something they could, and should, do under the (re-interpreted) French Constitution; or the decision of the German Bundesverfassungsgericht accepting, without any hesitation and despite the dualist traditions, that the ordinary German courts could directly apply EU law, thereby even setting aside conflicting national law, even if this meant that they would challenge the monopoly formerly held by the Bundesverfassungsgericht. Google Scholar

¹¹ Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], 29 May 1974, BVerfGE 37, 271 [hereinafter Solange I]; 22 Oct. 1986, 16 BVerfGE 73, 339 [hereinafter Solange II]; Corte costituzionale, Sentenza of 18 December 1973, n. 183/73, Frontini. Google Scholar

¹² According to Huber, Peter M., currently a member of the Bundesverfassungsgericht, the “democratic principle” and “the sovereignty of the people” have since the 1990s become the new Archimedic point of the German court's case law, as concerns over fundamental rights have decreased. In his view, “the concretization of the democratic principle by Article 20 (1) and (2) GG comprises two central ideas. First, the German concept of democracy substantially amounts to the proposition that the principle of democracy and the sovereignty of the people (Article 20(1) and (2) GG) are based on the individual right to political self-determination which itself is based on human dignity (Article 1(1) GG). (…) Second, though based on the guarantee of human dignity in Article 1 (1) GG, which is applicable to every man and every woman, the Grundgesetz itself, as a constitution of a nation state and like most other European constitutions reserves – with some exceptions for EU citizens at the level of local communities – democratic participation to German citizens.” And “the concept of democracy as described above is not only laid down in Art. 20(1) and (2) GG but it is part of the constitutional identity in terms of Art. 79(3) GG and therefore inalienable for the ordinary and the constitution amending legislator, as well as for the legislator in European affairs.” It is obvious thus that the Bundesverfassungsgericht protects German democracy and German human dignity in its political form. See Huber, P. M, The Federal Constitutional Court and European Integration, 21 Eur. Pub. L. 83–108 (2015).Google Scholar

¹³ Solange II, BVerfGE 73, 339 and Order of 7 June 2000, BVerfGE 102, 147 (Bananenmarktordnung); Order of 6 July 2010, BVerfGE 126, 286 (Honeywell). The Bundesverfassungsgericht has regularly spoken of a “Kooperationsverhältnis” with the CJEU.Google Scholar

¹⁴ Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], 14 January 2014, 2 BvR 2728/13.Google Scholar

¹⁵ Komárek, Jan, The Place of Constitutional Courts in the EU, 9 Eur. Const. L. Rev. 420 (2013); Komárek, Jan, National Constitutional Courts in the European Constitutional Democracy, 12 Int'l J. Const. L. 525 (2014). See Bossuyt, Marc & Verrijdt, Willem, The Full Effect of EU Law and of Constitutional Review in Belgium and France after the Melki Judgment, 7 Eur. Const. L. Rev. 355 (2011); Albi, Anneli, Erosion of constitutional rights in EU law: A call for “substantive co-operative constitutionalism”, 9 Vienna J. Int'l Const. L. (forthcoming 2015); Albi, Anneli, From the Banana saga to a Sugar Saga and Beyond: Could the Post-communist Constitutional Courts Teach the EU a Lesson in the Rule of Law?, Common Mkt. L. Rev. 791 (2012).Google Scholar

¹⁶ Komárek, supra note 15.Google Scholar

¹⁷ Of course, the context has changed dramatically since then, but still. For a comment on the decision, see Lynskey, Orla, The Data Retention Directive is incompatible with the rights to privacy and data protection and is invalid in its entirety: Digital Rights Ireland, Joined Cases C-293 & 594/12, Digital Rights Ireland Ltd and Seitlinger and others, Judgment of the Court of Justice (Grand Chamber) of 8 April 2014, nyr, 51 Common Mkt. L. Rev. 1789 (2014). On the Data Retention Directive before national Constitutional Courts, see Kosta, Eleni, The way to Luxembourg: national Court decisions on the compatibility of the Data Retention Directive with the rights to privacy and data protection, 10 SCRIPTED 339 (2013); 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, in this Special Issue. For a strong plea in favor of Constitutional Courts using the preliminary reference procedure to act as agents rather than recipients of the European constitutional construction, see Cartabia, Marta, Europe and rights: taking dialogue seriously, 5 Eur. Const. L. Rev. 5 (2009).Google Scholar

¹⁸ The website of the Constitutional Court has a special section on “preliminary references to the Court of Justice,” which lists twenty-six references; the CJEU Annual Report 2013 counts twenty-eight references. The first references dates from 1997.Google Scholar

¹⁹ The questions arose in the context of an annulment action against a decree of the Flemish Community relating to specific training in general medical practice, adopted primarily in order to transpose the provisions of Title IV of Council Directive 93/16/EEC of 5 April 1993 to the Flemish Community. The Constitutional Court asked about the correct interpretation of the directive, in order to be able to assess the issue of constitutionality, Cour constitutionnelle (Belgium), decision 6/97 of 19 February 1997, Fédération Belge des Chambres Syndicales de Médecins ASBL v. Flemish Government, Government of the French Community, Council of Minister (Training in general medical practice).Google Scholar

²⁰ Case 26/62, Van Gend en Loos, 1963 English Special Edition, 1; Case 6/64, Costa v ENEL, 1964 English Special Edition, 1129; Case 106/77, Simmenthal, 1978 E.C.R. 629.Google Scholar

²¹ See Cloots, Elke, Germs of pluralist judicial adjudication: Advocaten voor de Wereld and other references from the Belgian Constitutional Court, 47 Common Mkt. L. Rev. 645 (2010).Google Scholar

²² Cases in point are the Flemish Care Insurance Case, Cour constitutionnelle (Belgium), decision 51/2006 of 19 April 2006; Case C-212/06 Government of Communauté française and Gouvernement wallon v Gouvernement flamand, 2008 E.R.C. I-01683, and Cour constitutionnelle (Belgium), decision 2009/11 of 21 January 2009; and the Libert case, Cour constitutionnelle(Belgium) decision 49/2011 of 06 April 2011; Joined Cases C-197/11 and C-203/11, Libert v Flemish Government; Cour constitutionnelle (Belgium), 144/2013 of 7 November 2013.Google Scholar

²³ See also the report submitted by the Belgian Cour constitutionnelle to the XVIth Congress of the Conference of European Constitutional Courts on Co-operation of Constitutional Courts in Europe – Current Situation and Perspectives, available at www.confeuconstco.org.Google Scholar

²⁴ But see the recent position on the Charter, explained below.Google Scholar

²⁵ On the distinction between EU law as “standard of review” and EU law as applicable law, see Klaushofer, Reinhard & Palmstorfer, Rainer, Austrian Constitutional Court Uses Charter of Fundamental Rights of the European Union as Standard of Review: Effects on Union Law, Eur. Pub. L. 1 (2013).Google Scholar

²⁶ See id. at 1-11; Orator, Andreas, The Decision of the Austrian Verfassungsgerichtshof on the EU Charter of Fundamental Rights: An Instrument of Leverage or Rearguard Action?, in this Special Issue. Google Scholar

²⁷ Austrian Verfassungsgerichtshof, 14 March 2012, U 466/11-18 and U 1836/11.Google Scholar

²⁸ Even though this is relative, of course the Verfassungsgerichtshof decides 5,000 to 6,000 cases per year.Google Scholar

²⁹ Reding, Viviane, Observations on the EU Charter of Fundamental Rights and the future of the European Union, speech to the XXV Congress of FIDE, Tallinn, 31 May 2012.Google Scholar

³⁰ Case C-112/13, A v B and Others, 2014 E.C.R. I–2195Google Scholar

³¹ Corte costituzionale, Order nos. 102 and 103 of 2008; Order no. 207 of 3 July 2013. On these cases see Matteucci, Stefano Civitarese, The Italian Constitutional Court Strengthens the Dialogue with the European Court of Justice Lodging for the First Time a Preliminary Ruling in an Indirect (“Incidenter”) Proceeding, 20 Eur. Pub. L. 633 (2014); Cananea, Giacinto Della, The Italian Constitutional Court and the European Court of Justice: From Separation to Interaction?, 14 Eur. Pub. L. 523 (2008); Fontanelli, Filippo & Martinico, Giuseppe, Between Procedural Impermeability and Constitutional Openness: The Italian Constitutional Court and Preliminary References to the European Court of Justice, 16 Eur. L. J. 345 (2010).Google Scholar

³² See the following in this Special Issue: Gárdos-Orosz, Fruzsina, Preliminary Reference and the Hungarian Constitutional Court: A Context of Non-Reference; Aleksandra Kustra, Reading the Tea Leaves. The Polish Constitutional Tribunal and Preliminary Ruling Procedure; Mihail Vatsov, European Integration Through Preliminary Rulings? The Case of the Bulgarian Constitutional Court; Viorica Viţâ, The Romanian Constitutional Court and the Principle of Primacy: To Refer or Not To Refer?. Google Scholar

³³ Case C-239/07, Sabatauskas et al., 2008 E.C.R. I–7523; Lithuanian Constitutional Court, decision no. 47/04 of 4 December 2008, available at www.lrkt.lt.Google Scholar

³⁴ Verfassungsgerichtshof, decision G 47/12-11 G 59/12-10 G 62,70,71/12-11 of 28 November 2012 (Data Retention Directive).Google Scholar

³⁵ Examples can be found in Cloots, supra note 21.Google Scholar

³⁶ For a critical appraisal, see M. Claes and J. H. Reestman, The Protection of National Constitutional Identity and the Limits of European Integration at the Occasion of the Gauweiler Case, German L.J. 917–970 (2015).Google Scholar

³⁷ Though there are other cases as well, where the CJEU does appear to be sensitive to constitutional concerns of particular Member States and referring courts, even if these concerns may seem of limited interest to others, for instance in Case C-36/02, Omega, 2004 E.C.R. I-09609, Case C-391/09, Runević Vardyn, 2011 E.C.R. I-03787, or Case C-208/09, Sayn Wittgenstein, 2010 E.C.R. I-13693.Google Scholar

³⁸ On Melloni, see, e.g., Besselink, Leonard F.M., The parameters of constitutional conflict after Melloni, 4 Eur. L. Rev. 531 (2014); Pérez, Aida Torres, Melloni in Three Acts: From Dialogue to Monologue, 10 Eur. Const. L. Rev. 308 (2014). On Advocatenvoor de Wereld, the Money Laundering case and Flemish Insurance Case, see Cloots, supra note 21.Google Scholar