Recently, scholars have argued of the necessity of going beyond “judicial dialogues” and “conflict-and-power” approaches to the analysis of the role of national Constitutional Courts in the Union. On the one hand, there are risks connected to a “too welcoming an approach by national constitutional courts to EU law”; on the other hand, it is possible to criticize both the Court of Justice of the EU (CJEU) and some national Constitutional Courts for other, less cooperative, decisions. I share this cautious approach for many reasons, and primarily because the preliminary ruling mechanism does not exhaust all the possible means of communication between constitutional courts and the CJEU. For instance, what Komárek calls “parallel references” can serve, in some circumstances, as a technique of alternative (or hidden) dialogue, that has favored a sort of “remote dialogue” over the years. My sole point of disagreement with this scholarly position is over the role of conflicts in this scenario. Whilst Komárek seems to confine conflicts to phenomena of mere resistance or to “‘cold’ strategic considerations,” in this work I am going to adopt a much broader idea of conflict, which goes beyond mere “conflicts and power games.”

The jurisdictional control systems (or, to be more accurate, the quasi-jurisdictional control systems) created within the European Convention on Human Rights (ECHR) and the European Union (EU) considerably differ one from each other, besides reflecting the different origin of the treaties in which they have been fashioned; the first, in fact, is a “third system” with respect to States Parties, a system whose unique competence is the subsidiary protection of fundamental rights; the second is instead in charge of safeguarding the uniform implementation and interpretation of norms being mainly targeted at the creation of an Area of Freedom, Security and Justice, developed from the original idea of a “common market” envisaged in the 1957 Treaty of Rome.

On 2 October 2013, Protocol No. 16 to the European Convention on Human Rights (ECHR) was opened for signature by the Member States of the Council of Europe (CoE). The protocol, that has so far been signed by sixteen States and ratified by Albania, Georgia, Lithuania, San Marino and Slovenia, will enter into force in case of ratification by at least ten Member States. If the protocol becomes effective, it will expand the European Court of Human Rights’ competence to give advisory opinions upon request by domestic high courts and tribunals.

In a landmark decision of 2012 on the relevance of the EU Charter of Fundamental Rights (CFR) in domestic constitutional adjudication, the Austrian Verfassungsgerichtshof (Constitutional Court) substantially extended the applicable yardstick, according to which the constitutionality of ordinary laws and administrative action may be assessed, to certain Charter rights. At the same time, the Verfassungsgerichtshof claimed its active commitment to judicial dialogue with the Court of Justice of the European Union (CJEU) through the preliminary reference procedure pursuant to Article 267 TFEU to effectively protect Charter-based fundamental rights of individuals. Arguably, both the domestic and Union-wide ramifications of this “instant classic” case of a domestic constitutionalization of the Charter are substantial, delivering insight not least as to the transformative role of the Charter for domestic fundamental rights protection and the adaptations of domestic constitutional courts in such a changed environment.

In the ongoing debate about preliminary references raised by constitutional courts, the Italian Corte costituzionale (Constitutional Court, hereafter, ICC) is apparently a latecomer. Despite its pivotal role in the founding era in which the relationships between Community law and national legal orders were assessed, its reluctance towards preliminary references to the ECJ (since 2009: Court of Justice of the European Union, CJEU) has repeatedly been invoked as a standard in legal scholarship. Whereas from the early 1960s onwards it engaged dialectically with the CJEU, and contributed to some basic tenets of EC law vis-à-vis national law (direct effect, primacy, limits concerning basic constitutional principles, so-called counter-limits), it appeared for a long time to be almost silent on the crucial aspect concerning its ability to enter into a direct dialogue with the CJEU via the preliminary reference procedure. Although this ambivalence may appear contradictory, one should not forget that behind the scenes, dialogue took place along indirect or “hidden” channels. Either in response to claims raised by the judiciary in incidenter proceedings, or in adjudicating disputes between State and Regions in principaliter ones, the ICC often sent messages and alerts to the CJEU. In so doing, it indirectly contributed to shaping the relationships between EU law and domestic law. In the long run, the absence of the ICC's direct involvement in the relationships with the CJEU has, however, estranged its action from the core of EU law in favor of the partnership between the CJEU and the common judges (both ordinary and administrative).

A preliminary reference on the part of the Constitutional Council was, in several respects, not to be expected. It was debatable whether it would consider itself as a “court or tribunal” within the meaning of Article 267 of the Treaty on the Functioning of the European Union (TFEU) and, therefore, whether it would refer a case to the European Court of Justice (CJEU) at all. The French constitutional court could also have resorted to the acte clair doctrine so as to escape from their obligation to ask for the interpretive guidance of the CJEU. However, the main reason why a reference was not awaited by legal actors lies in the limited jurisdiction of the Constitutional Council. Until the introduction in 2008 of the so-called QPC, that is, question prioritaire de constitutionnalité (the Priority Preliminary Reference mechanism on issues of constitutionality), the Conseil constitutionnel had a very limited jurisdiction compared to its European counterparts. Its main mission was to assess the conformity of parliamentary bills and treaties with the Constitution and only with the Constitution. Its review could only take place ex ante, between the adoption and the promulgation of a text. By opening the way to an ex post review of statutes with regard to the rights and freedoms guaranteed by the Constitution, the QPC brought about a major change in the French adjudication system: statutes are no longer immune from constitutional challenge once they are in force. However, treaties and other international or European commitments are no parameters of constitutional review. The Conseil constitutionnel made this clear in 1975 and never seriously changed track, despite minor qualifications to the rule. In their seminal IVG ruling on the Voluntary Interruption of Pregnancy Act, they held that it was not up to them to review the compatibility of bills with treaties, in spite of Article 55 of the Constitution. Consequently, the task of the constitutional judges does not go beyond the assessment of laws with regard to the Constitution. This is the main reason that explains why, on the face of it, the Conseil constitutionnel was unlikely to refer a case to the CJEU. Why would it seek the interpretation or ask for the review of a European text if this text is immaterial for it and if the yardstick of its examination is the Constitution and only the Constitution? Yet, it happened. For the first time, the Conseil referred a case to the CJEU on 4 April 2013. Although this is undoubtedly a major legal breakthrough, we will see in due course that this is probably more a révolution de palais than a true revolution in French constitutional law.

So far, the German Constitutional Court (Bundesverfassungsgericht, henceforth: BVerfG) has only made a single preliminary reference to the (now) Court of Justice of the European Union (CJEU), despite frequent rulings on matters connected with European Union (EU) Law. Its apparent reluctance seemed odd considering the atmosphere of dialogue and cooperation which prevails between the non-constitutional courts and the EU courts. This situation might, however, have changed with the preliminary reference from January 2014, proving predictions on the perceived “most powerful constitutional court” and its relationship to the EU partly wrong. The legal effects of its preliminary reference on the interpretation of Articles 119, 123, 127 ff. of the Treaty on the Functioning of the European Union (TFEU) and the validity of Outright Monetary Transactions (OMT) by the European Central Bank (ECB) under EU Law are as yet unclear; although the Opinion of the Advocate General Cruz Villalón was delivered in the beginning of 2015, which did not confirm the doubts expressed by the BVerfG about the conformity of the OMT programme with EU law. Nonetheless, the interpretative scheme and the normative questions as to the reluctance of the BVerfG remain the same after this single referral and offer explanations as to why the BVerfG had for nearly sixty years not referred a question to the former European Court of Justice (ECJ).

The purpose of the preliminary reference procedure is to ensure a uniform application and interpretation of Community law across all the Member States, including European fundamental rights as enshrined in the Charter of Fundamental Rights of the European Union. The entry into force of the Charter has reinforced the authority of the Court of Justice of the European Union (CJEU) in the field of fundamental rights adjudication. But the Charter may also be a new source of conflicts between the jurisdiction of the CJEU and the jurisdiction of national constitutional courts. Indeed, compliance with the indirect rulings over national law contained in the CJEU decisions became something logical for the national ordinary courts from the beginning of the integration process, but it was not the same for national constitutional courts. Most of them have always disliked the idea of asking for the CJEU's opinion on a conflict of law involving national constitutional provisions. The CJEU succeeded in establishing a legal doctrine through principles of Community law—supremacy and direct effect being the pioneers—that meant a material constitutionalization of the European Union (EU) law system. And for the national constitutional courts, such an understanding of EU law made a rival of the CJEU.

At the start of his paper Keeping Their Heads Above Water? European Law in the House of Lords, Anthony Arnull reports a judgment delivered by Lord Denning in 1979, in the early days of the process of the United Kingdom's European integration. It stated as follows:

Lord Denning made a similar remark in his judgment in Bulmer v. Bollinger, which was a pivotal case in the dialogue between the United Kingdom (UK) and European systems.

The main purpose of the preliminary ruling procedure is to prevent divergences in judicial decisions applying European Union (EU) law and to ensure the uniform interpretation of EU legal provisions across Member States. The procedure, introduced in the Founding Treaties, has provided a platform for the Court of Justice of the European Union (hereafter, the ECJ or the CJEU) to deliver seminal judgments that have progressively defined the relationship between national and EU legal systems, among others. The procedure has also helped the ECJ to develop fundamental principles of EU law, including direct effect, indirect effect (i.e., the interpretation of national law in line with directives) and primacy. Being one of the most important aspects of the EU judicial system, the procedure provided by Article 267 of the Treaty on the Functioning of the European Union (hereafter, TFEU) has had an immense impact on the harmonious development of EU law and the way in which national courts and EU courts interact and communicate.

Jiri Zemanek, Professor at Charles University, Prague, asks what conclusions may be drawn from the current state of acceptance of the European Union (EU) law doctrine by the constitutional courts of the new Member States for their performance in the agenda of preliminary rulings. What can they learn from the experience of the old Member States? Should they follow the practice of the Austrian Verfassungsgerichtshof (Constitutional Court), which referred its first question in 1999, four years after its accession, and later repeated it several times? Or should they follow the most active Belgian Cour Constitutionnelle? Should Hungary follow the practice of the Italian Constitutional Court, Lithuania, France, Spain, or Germany? Having reviewed the case law of the Hungarian Constitutional Court and the scholarly analysis in search of the “missing links,” this study wishes to contribute to the diverse range of ideas concerning European “rule of law” integration and constitutional court contributions to it.

The preliminary reference procedure under Article 267 of the Treaty on the Functioning of the European Union (TFEU) is instrumental for the so-called “judicial dialogue” within the European Union (EU). The goals of the preliminary reference procedure are to ensure the uniform interpretation and application of EU law and to contribute to the harmonious development of the law throughout the EU. It was through the preliminary reference procedure to the Court of Justice of the European Union (CJEU) that the principles of direct effect and supremacy were developed. It took many years before the first request by a Constitutional Court was sent to the CJEU. So far, the Constitutional Courts of Belgium, Austria, Lithuania, Italy, Spain, France, Germany, and most recently Slovenia, have sent requests for preliminary rulings to the CJEU. By far the most active of these in sending requests has been the Belgian Court. The Portuguese Constitutional Court has indicated that it can request preliminary rulings from the CJEU but is yet to do so. In the other Member States (MS) with Constitutional Courts, references have not been sent yet, although worthy occasions in terms of EU-law-related cases have occurred, as also observed in various contributions in this special issue. These MSs include Bulgaria.

This Article aims to constructively analyze the emerging constitutional dialogue between the Constitutional Court of Romania (the CCR or the Court) and the Court of Justice of the European Union (CJEU). It focuses, in particular, on the lack of a reference for a preliminary ruling from the first court, and aims to unveil the possible motives underlying this passive behavior.

The Constitutional Courts of a number of Member States exert a constitutional review on the obligation of national courts of last instance to make a reference for a preliminary ruling to the Court of Justice of the European Union (CJEU).

Pursuant to Article 267(3) TFEU, national courts of last instance, namely courts or tribunals against whose decisions there is no judicial remedy under national law, are required to refer to the CJEU for a preliminary question related to the interpretation of the Treaties or the validity and interpretation of acts of European Union (EU) institutions. The CJEU specified the exceptions to this obligation in CILFIT. Indeed, national courts of last instance have a crucial role according to the devolution to national judges of the task of ensuring, in collaboration with the CJEU, the full application of EU law in all Member States and the judicial protection of individuals’ rights under EU law. With preliminary references as the keystone of the EU judicial system, the cooperation of national judges with the CJEU forms part of the EU constitutional structure in accordance with Article 19(1) TEU.

He was a Huron, but a particular one. Lulled during his childhood by the stories of the public law teacher of his Tribe who had the chance to get a scholarship enabling him to mix with intricacies of the French recourse for misuse of power—a real first!—he had seen some of his friends cross the Ocean.

The aim of this Article is to analyze the peculiar jurisdictional reaction that originated at the level of both the European Union (EU) and the Member States following the introduction, on 15 March 2006, of Directive 2006/24/EC of the European Parliament and the Council, “on the retention of data generated or processed in connection with the provision of publicly available electronic communication services or of public communication networks.”

In 2012 and 2013, we observed how the European Stability Mechanism (ESM) was adjudicated by “EU courts, plural”: a number of high courts of the Member States (among them “Kelsenian” constitutional courts as well as representatives of a more hybrid model of judicial review of constitutionality) and the European Court of Justice (CJEU) were seized by challenges to the mechanism. What attracted attention was the fact that only one court, the Supreme Court of Ireland, decided to submit a preliminary reference to the CJEU, while the other courts, as would appear from their judgments, did not even consider the option. This was a suboptimal example of judicial dialogue in the case of ESM adjudication.

The European continent has become a space of constitutional interdependence and consequently, national Constitutional Courts are now embedded in a constitutional fabric made of national constitutions, European Union (EU) law, European treaties, and conventions. This is all the more evident in the domain of fundamental rights.