Constitutional Review in Europe: A Comparative Analysis 9781472561596, 9781849463850

Constitutions serve to delineate state powers and enshrine basic rights. Such matters are hardly uncontroversial, but pe

307 55 3MB

English Pages 521 Year 2014

Table of contents :
Introduction
Introductory Definitions: Constitutional Interpretation and Constitutional Review
Background: The Need for a Perspective Combining National and European Constitutional Law
Objectives
Method
Terminology
Structure
Chapter 1: The Role of Non-Judicial Actors inUpholding the Constitution
I. Introduction
II. Councils of State and Chancellors of Justice
III. Parliament and its Committees
IV. Heads of State
V. The People
VI. Concluding Remarks
Chapter 2: The Rise of Constitutional Adjudication
I. Introduction
II. The Notion of 'Constitutional Jurisdiction'
III. Exploring the Reasons Behind the Rise of Constitutional Adjudication
IV. Buckling the Trend? A Closer Look at the Approaches of the Netherlands and the United Kingdom
V. Concluding Remarks and Some Brief Reflections on the Two European Courts
Chapter 3: Purposes of Constitutional Adjudicationand Access to Constitutional Courts
I. Introduction
II. The Institutional Design of Constitutional Adjudication
III. Four Purposes that may be Served by Constitutional Adjudication
IV. Final Comparative Remarks and Reflections on the Court of Justice
Chapter 4: The Constitutional Bench
I. Introduction
II. Selection and Appointment Procedures
III. Number of Judges and Eligibility Criteria
IV. Tenure of Judicial Appointments and Termination Thereof
V. Final Comparative Remarks and Reflections on the Court of Justice
Chapter 5: Identifying the Sources of Standardsfor Constitutional Review
I. Introduction
II. Belgium: Cour Constitutionnelle
III. Czech Republic: �stavn� Soud
IV. Germany: Bundesverfassungsgericht
V. France: Conseil Constitutionnel
VI. Hungary: Alkotm�nyb�r�s�g
VII. Italy: Corte costituzionale
VIII. Trybunal Konstytucyjny
IX. Spain: Tribunal Constitucional
X. The Netherlands: Raad Van State
XI. United Kingdom: House of Lords Constitutional Committee
XII. Perustuslakivaliokunta
XIII. European Union: Court of Justice
XIV. Comparative Remarks
Chapter 6: Testing and Remedying Unconstitutionality
I. Introduction
II. Deference Rhetoric
III. Theory of the Living Law
IV. Constitution-Conform Interpretation
V. Types of Judgment and their Effects
VI. Concluding Remarks
Chapter 7: Interplay between ConstitutionalCourts and Other Actors
I. Introduction
II. Interactions between Constitutional Courts and (Constitutional) Legislatures
III. Interactions between Constitutional Courts and the Ordinary Courts
IV. Interactions among European Constitutional Courts
V. Interactions between Constitutional Courts and the Court of Justice
VI. Interactions between National Highest and Constitutional Courts and the European Court of Human Rights
VII. Concluding Remarks

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Constitutional Review in Europe: A Comparative Analysis
9781472561596, 9781849463850

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Constitutional Review in Europe

A Comparative Analysis Maartje de Visser Hart Publishing 2014 Full Text Access Available in PDF page image format.

Book DOI

10.5040/9781472561596

Collections

Constitutional and Administrative Law, Title by Title,

Published Online

08 September 2014

Subjects

Law, Constitutional and Administrative Law, European Law, Comparative Law

ISBN

978-1-84946-385-0 (hardback)

978-1-4725-6159-6 (online)

Book Summary / Abstract Constitutions serve to delineate state powers and enshrine basic rights. Such matters are hardly uncontroversial, but perhaps even more controversial are the questions of who (should) uphold(s) the Constitution and how constitutional review is organised. These two questions are the subject of this book by Maartje de Visser, which offers a comprehensive, comparative analysis of how 11 representative European countries answer these questions, as well as a critical appraisal of the EU legal order in light of these national experiences. Where possible, the book endeavours to identify Europes’s common and diverse constitutional traditions of constitutional review. The raison d’être, jurisdiction and composition of constitutional courts are explored and so too are core features of the constitutional adjudicatory process. Yet, this book also deliberately draws attention to the role of non-judicial actors in upholding the Constitution, as well as the complex interplay amongst constitutional courts and other actors at the national and European level. The Member States featured are: Belgium, the Czech Republic, Finland, France, Germany, Italy, Hungary, the Netherlands, Spain, Poland, and the United Kingdom. This book is intended for practitioners, academics and students with an interest in (European) constitutional law.

Table of Contents

Go to Page Pages 1 .. 484 Front matter

Acknowledgements

pp. v–vi

Table of Cases

pp. xiii–xxxvi

Table of European Treaties and European Legal Instruments

pp. xxxvii–xxxviii

Table of Statutes

pp. xxxix–xliv

Introduction

pp. 1–10

Chapter 1. The Role of Non-Judicial Actors in Upholding the Constitution

pp. 11–52

Chapter 2. The Rise of Constitutional Adjudication

pp. 53–92

Chapter 3. Purposes of Constitutional Adjudication and Access to Constitutional Courts

pp. 93–204

Chapter 4. The Constitutional Bench

pp. 205–228

Chapter 5. Identifying the Sources of Standards for Constitutional Review

pp. 229–280

Chapter 6. Testing and Remedying Unconstitutionality

pp. 281–328

Chapter 7. Interplay between Constitutional Courts and Other Actors

pp. 329–440

Back matter

Go

Bibliography

pp. 441–476

Index

pp. 477–484

Copyright © 2021 Bloomsbury Publishing Registered in England No. 01984336

Acknowledgements This book, dedicated to the student and scholar of comparative constitutional law, would not have been possible without the help of a great many friends and colleagues, especially the following persons. Monica Claes, stimulating and congenial mentor and friend, provided the opportunity to participate in the European and National Constitutional Law (EuNaCon) project. I have, over the past years, on this and other collaborations, enjoyed working with her tremendously. I acknowledge also the other members of the EuNaCon project: Viorelia Gasca, Lars Hoffmann and Nikos Skoutaris. The following members of the EuNaCon Taskforce and friends of the EuNaCon project have contributed towards sharpening my thought and word, during annual workshops and other gatherings: Anneli Albi, Leonard Besselink, Michal Bobek, Armin von Bogdandy, Elke Cloots, Bruno De Witte, Tom Eijsbouts, Federico Fabbrini, Diane Fromage, Janneke Gerards, Walter van Gerven, Christoph Grabenwarter, Constance Grewe, Vicki Jackson, Jan Komárek, Elisabetta Lamarque, Andrej Lang, Roel de Lange, Adam Lazwoski, Giuseppe Martinico, François-Xavier Millet, Laurent Pech, Patricia Popelier, Marie-Claire Ponthoreau, Jan-Herman Reestman, Jo Shaw, Stefan Sottiaux, Adam Tomkins, Aida Torres Pérez, Renáta Uitz, Antje von Ungern-Sternberg, Catherine Van de Heyning, Willem Verrijdt, Ladislav Vyhnánek. I also express my appreciation to Aharon Barak and Tania Groppi whose incisive observations during the closing conference of the EuNaCon Project helped put the finishing touches on this book. The European Research Council (ERC) provided the financial support through grant 207279, which has been instrumental in making this book a reality. Work on this book began in Tilburg and reached fruition in Maastricht. I have benefited immensely from the pleasant atmosphere and equally pleasant colleagues in both universities. Several research assistants have helped me in several ways, including Radim Dragomaca, Mareike Fischer, Sejla Immamovic, and Ieva Pundina. The staff at Hart Publishing – Richard, Rachel, Ruth, Mel, Tom and Emma – have been an absolute pleasure to work with, making the whole editorial process a very smooth one. The greatest debt of gratitude I owe to my husband, Gary. Without his unfailing love and support, writing this book would simply not have been possible. Maartje de Visser September 2013, Singapore

Table of Cases COURT OF JUSTICE OF THE EUROPEAN UNION (CJEU) Case 1/58 Stork & Cie v High Authority of the European Coal and Steel Community [1959] ECR (English Special Edition) 17.........................................................................271 Case 13/60 Geitling, Ruhrkohlen-Verkaufsgesellschaft mbH v High Authority of the European Coal and Steel Community [1962] ECR (English Special Edition) 83............271 Case 25/62 Plaumann & Co v Commission [1963] ECR Sp Ed 95.......................................191 Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 13.......................... 75, 89, 197, 419 Case 6/64 Flaminio Costa v ENEL [1964] ECR 585.......................................... 75, 89, 197, 409 Case 29/69 Erich Stauder v City of Ulm [1969] ECR 419.....................................................271 Case 11/70 Internationale Gesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125......................................................................................75 Joined Cases 41–44/70 NV International Fruit Company v Commission [1971] ECR 411..............................................................................................................................191 Joined Cases 21–24/72 International Fruit Company NV v Produktschap voor Groenten en Fruit [1972] ECR I-1219...............................................................................................275 Case 81/72 Commission v Council (Staff Regulations) [1973] ECR 575..............................326 Case 4/73 J Nold, Kohlen- und Baustoffgroßhandlung v Commission [1974] ECR 491...........4 Opinion 1/76 Laying-up Fund [1977] ECR 741...................................................................270 Case 35/76 Simmenthal SpA v Ministero delle Finanze italiano [1976] ECR 1871..............418 Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 629..............................................................................................................................418 Case 4/79 Société coopérative ‘Providence agricole de la Champagne’ v Office national interprofessionel des céréales (ONIC) [1980] ECR 2823...................................................326 Case 44/79 Liselotte Hauer v Land Rheinland-Pfalz [1979] ECR 3727................................272 Case 66/80 SpA International Chemical Corporation (ICC) v Amministrazione delle finanze dello Stato [1981] ECR 1191.................................................................................325 Case 102/81 Nordsee Deutsche Hochseefischerei GmbH v Reederei Mond Hochseefischerei Nordstern AG & Co KG and Reederei Friedrich Busse Hochseefischerei Nordstern AG & Co KG [1982] ECR 1095..........................................................................................192 Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECR 3415............................................................................................................................324 Case 11/82 SA Piraiki-Patraiki v Commission [1985] ECR 207...........................................191 Joined Cases 205–15/82 Deutsche Milchkontor GmbH v Federal Republic of Germany [1983] ECR 2633................................................................................................................275 Case 14/83 Sabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen [1984] ECR 1891................................................................................................................308 Case 112/83 Société des produits de maïs SA v Administration des douanes et droit indirects [1985] ECR 719...................................................................................................326

xiv TABLE OF CASES

Case 294/83 Parti écologiste ‘Les Verts’ v European Parliament [1986] ECR 1339..............................................................................................................89, 189, 270 Case 41/84 Pietro Pinna v Caisse d’allocations familiales de la Savoie [1986] ECR 1..........326 Case 314/85 Foto-Frost v Hauptzollamt Lübeck-Ost [1987] ECR 4199........................192, 409 Joined Cases 97, 193, 99 and 215/86 Asteris AE and Hellenic Republic v Commission [1988] ECR 2181................................................................................................................326 Case 302/87 Parliament v Council (‘Comitology’) [1988] ECR 5615...................................191 Case 5/88 Wachauf v Germany [1989] ECR 2609.................................................................195 Case C-70/88 Parliament v Council (‘Chernobyl’) [1990] ECR I-2041........................191, 275 Case C-262/88 Douglas Harvey Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889..................................................................................................368 Case C-213/89 R v Secretary of State for Transport, ex parte Factortame Ltd [1990] ECR I-2433...................................................................................................................84, 424 Case C-260/89 Elliniki Radiophonia Tileorassi AE (ERT) v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas [1991] ECR I-2925)........................................................................195 Case C-348/89 Mecanarte—Metalúrgica da Lagoa Lda v Chefe do Serviço da Conferência Final da Alfândego do Porto [1991] ECR I-3277...............................................................419 Opinion 1/91 on the draft agreement relating to the creation of the European Economic Area [1991] ECR I-6079....................................................................89, 189, 270 Case C-109/91 Gerardus Cornelius Ten Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers- en Schoonmaakbedrijf [1993] ECR I-4894..............................................369 Case C-110/91 Michael Moroni v Collo GmbH [1993] ECR I-6591....................................369 Case C-152/91 David Neath v Hugh Steeper Ltd [1993] ECR I-6935..................................369 Case C-200/91 Coloroll Pension Trustees Ltd v James Richard Russell [1994] ECR I-4389.........................................................................................................................369 Case C-228/92 Roquette Frères SA v Hauptzollamt Geldern [1994] ECR I-1455................326 Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur SA v Federal Republic of Germany and R v Secretary of State for Transport, ex parte Factortame Ltd [1996] ECR I-1029.........................................................................................................................271 Case C-57/93 Anna Adriaantje Vroege v NCIV Instituut voor Volkshuisvesting BV en Stichting Pensioenfonds NCIV [1994] ECR I-4541...........................................................369 Case C-450/93 Eckhard Kalanke v Freie Hansestadt Bremen [1995] ECR I-3051...............367 Opinion 2/94 Accession of the Community to the European Human Rights Convention [1996] ECR I-1759.............................................................................................................357 Case C-21/94 European Parliament v Council (‘Road Taxes’) [1995] ECR I-1827..............326 Joined Cases C-68/94 and C-30/95 French Republic and Société commerciale des potasses et de l’azote (SCPA) and Entreprise minière et chimique (EMC) v Commission (‘Kali and Salz’) [1998] ECR I-1375.................................................................................191 Case C-84/94 United Kingdom v Council (‘Working Time Directive’) [1996] ECR I-5755.................................................................................................................285, 337 Case C-41/95 Council v European Parliament [1995] ECR I-4411......................................326 Case C-392/95 European Parliament v Council (‘Visa Requirements for TCNs’) [1997] ECR I-3213.............................................................................................................326 Case C-409/95 Helmut Marschall v Land Nordrhein Westfalen [1997] ECR I-6363...........367 Case C-54/96 Dorsch Consult Ingenieurgesellschaft mbH v Bundesbaugesellschaft Berlin mbH [1997] ECR I-4961...................................................................................................192 Case C-149/96 Portugal v Council [1999] ECR I-8395.........................................................276

TABLE OF CASES xv

Case C-162/96 Racke GmbH & Co v Hauptzollamt Mainz [1998] ECR I-3655..................275 Case C-386/96P Société Louis Dreyfus & Cie v Commission [1998] ECR I-2309................191 Case C-93/97 Fédération Belge des Chambres Syndicales de Médecins ASBL v Flemish Government, Government of the French Community, Council of Ministers [1998] ECR I-4837.........................................................................................................................404 Case C-126/97 Eco Swiss China Time Ltd v Benetton International NV [1999] ECR I-3055.........................................................................................................................192 Joined Cases C-10/97 to C-22/97 Ministero delle Finanze v IN.CO.GE.’90 Srl [1998] ECR I-6307.........................................................................................................................324 Case C-310/97P Commission v AssiDomän Kraft Products [1999] ECR I-5363..................326 Case C-285/98 Tanja Kreil v Bundesrepublik Deutschland [2000] ECR I-69.......................409 Case C-376/98 Germany v Parliament and Council (‘Tobacco Advertising’) [2000] ECR I-8419.........................................................................................................................199 Case C-403/99 Italian Republic v Commission [2001] ECR I-6883.....................................305 Case C-462/99 Connect Austria Gesellschaft für Telekommunikation GmbH v Telekom-Control-Kommission and Mobilkom Austria AG [2003] ECR I-5197................409 Case C-15/00 Commission v European Investment Bank [2003] ECR I-7281.....................270 Case C-50/00P Unión de Pequeños Agricultores (UPA) v Council [2002] ECR I-6677.........................................................................................................................192 Case C-36/02 Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn [2004] ECR I-9609......................................416 Case C-263/02P Commission v Jégo-Quéré & Cie SA [2004] ECR I-3425...........................192 Case C-434/02 Arnold André GmbH & Co KG v Landrat des Kreises Herford [2004] ECR I-11825.......................................................................................................................199 Case C-210/03 R, on the application of Swedish Match AB and Swedish Match UK Ltd v Secretary of State for Health [2004] ECR I-11893.............................................................199 Case C-461/03 Gaston Schul Douane-expediteur BV v Minister van Landbouw, Natuur en Voedselkwaliteit [2005] ECR I-513...............................................................................192 Case C-540/03 European Parliament v Council (‘Family Reunification’) [2006] ECR I-5769.................................................................................................................196, 273 Case C-144/04 Werner Mangold v Rüdiger Helm [2005] ECR I-9981.........................274, 413 Case C-344/04 R, on the application of International Air Transport Association (IATA) and European Law Fares Airline Association (ELFAA) v Department for Transport [2006] ECR I-403...............................................................................................................307 Case C-432/04 Commission v Edith Cresson [2006] ECR I-6387.........................................201 Case C-303/05 Advocaten voor de Wereld VZW v Leden van de Ministerraad [2007] ECR I-3633.................................................................................................................408, 412 Joined Cases C-402/05P and C-415/05P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351......................270 Case C-432/05 Unibet Ltd v Justitiekanslern [2007] ECR I-2271.........................................424 Case C-2/06 Willy Kempter KG v Hauptzollamt Hamburg-Jonas [2008] ECR I-411..........403 Joined Cases C-120/06P and C-121/06P FIAMM v Council and Commission [2008] ECR I-6513.........................................................................................................................326 Case C-210/06 Cartesio Oktató és Szolgátató bt [2008] ECR I-9641....................................403 Case C-308/06 Intertanko v Secretary of State for Transport [2008] ECR I-4057................276 Case C-409/06 Winner Wetten GmbH v Bürgermeisterin der Stadt Bergheim [2010] ECR I-8015.........................................................................................................................326

xvi TABLE OF CASES

Case C-166/07 European Parliament v Council (‘International Fund for Ireland’) [2009] ECR I-7135.............................................................................................................326 Case C-333/07 Société Régie Networks v Direction de contrôle fiscal Rhône-Alpes Bourgogne [2008] ECR I-10807.........................................................................................326 Joined Cases C-402/07 and C-432/07 Christopher Sturgeon v Condor Flugdienst GmbH and Stefan Böck and Cornelia Lepuschitz v Air France SA [2009] ECR I-10923..............305 Case C-555/07 Seda Kücükdeveci v Swedex GmbH & Co KG [2010] ECR I-365................274 Case C-58/08 Vodafone, O2 et al v Secretary of State [2010] ECR I-4999............................199 Case C-101/08 Audiolux SA v Groupe Bruxelles Lambert SA (GBL) [2009] ECR I-9823.........................................................................................................................271 Case C-127/08 Blaise Baheten Metock v Minister for Justice, Equality and Law Reform [2008] ECR I-6241.............................................................................................................337 Case C-169/08 Presidente del Consiglio dei Ministri v Regione autonoma della Sardegna [2009] ECR I-10821...........................................................................................................403 Case C-314/08 Krzysztof Filipiak v Dyrektor Izby Skarbowej w Poznaniu [2009] ECR I-11049...............................................................................................................................418 Opinion 1/09 on the draft agreement on the European and Community Patents Courts [2011] ECR I-1137................................................................................................203 Case C-27/09P France v People’s Mojahedin Organisation of Iran [2011] ECR I-0000.......195 Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen [2010] ECR I-11063.................................................................195, 285 Case C-173/09 Georgi Ivanov Elchinov v Natsionalna zdravnoosiguritelna kasa [2010] ECR I-8889.........................................................................................................................426 Case C-208/09 Ilonka Sayn-Wittgenstein v Landeshauptmann von Wien [2010] ECR I-13693...............................................................................................................................416 Case C-236/09 Association belge de Consommateurs Test-Achats ASBL v Conseil des ministres [2011] ECR I-773.......................................................................................195, 408 Case C-306/09 IB v Conseil des ministres [2010] ECR I-10341.................................................. 307 Case C-399/09 Marie Landtová v Česká správa socialního zabezpečení [2011] ECR I-0000.........................................................................................................................414 Case C-457/09 Claude Chartry v Belgian State [2011] ECR I-819......................................422 Case C-149/10 Zoi Chatzi v Ipourgos Ikonomikon [2010] ECR I-8489................................305 Case C-189/10 Proceedings against Aziz Melki and Sélim Abdeli [2010] ECR I-5667.................................................................................................................138, 418 Case C-282/10 Maribel Dominguez v Centre informatique du Centre Ouest Atlantique, préfet de la région Centre [2012] ECR I-0000...................................................................308 Case C-364/10 Hungary v Slovak Republic [2012] ECR I-0000...........................................202 Case C-416/10 Jozef Križan v Slovenská inšpekcia životného prostredia [2013] ECR I-0000.........................................................................................................................418 Case C-571/10 Servet Kamberaj v Istituto per l’Edilizia sociale della Provincia autonoma di Bolzano (IPES) [2012] ECR I-0000...............................................................................273 Case C-617/10 Åklagaren v Hans Åkerberg Fransson [2013] ECR I-0000...........................195 Case C-399/11 Stefano Melloni v Ministerio Fiscal [2013] ECR I-0000...............................404 Case C-253/12 JS v Česká správa sociálního zabezpečení, filed on 24 May 2012....................415 Case C-168/13 PPU Jeremy F v Premier ministre [2013] ECR I-0000.................................404

TABLE OF CASES xvii

GENERAL COURT Case T-172/98, T-175 to 177/98 Salamander AG v Parliament and Council [2000] ECR II-2487.......................................................................................................................191 Case T-177/01 Jégo-Quéré SA v Commission [2002] ECR II-2365......................................192 Case T-315/01 Kadi v Council and Commission [2005] ECR II-3649..................................274 Case T-284/08 People’s Mojahedin Organisation of Iran v Council [2008] ECR II-3487.......................................................................................................................195 Case T-18/10 Inuit Tapiriit Kanatami v European Parliament and Council [2011] ECR II-5599.......................................................................................................................191

EUROPEAN COURT OF HUMAN RIGHTS (ECtHR) Akdivar v Turkey App no 21893/93 (ECtHR, 4 April 1998).................................................429 Al-Khawaja and Tahery v United Kingdom App nos 26766/05 and 22228/06 (ECtHR, 20 January 2009)................................................................................................434 Al-Khawaja and Tahery v United Kingdom App nos 26766/05 and 22228/06 (ECtHR, Grand Chamber, 15 December 2011)...............................................................435 Bock v Germany App no 11118/84 (ECtHR, 29 March 1989)..............................................386 Brozicek v Italy App no 10964/84 (ECtHR, 19 December 1989).........................................430 Brüggemann and Scheuten v Federal Republic of Germany (1981) 3 EHHR 244 (Commission Decision)....................................................................................................340 Burden v United Kingdom App no 13378/05 (ECtHR, 29 April 2008)................................353 Case relating to certain aspects of the laws on the use of languages in education in Belgium App nos 1474/62, 1677/62, 1691/62, 1769/63, 1994/63, 2126/64 (ECtHR, 23 July 1968).......................................................................................................232 Dˇelnická Strana and Tomáš Vandas v Czech Republic App no 70254/10, lodged on 25 November 2010.............................................................................................................178 Denkli v Germany App no 26670/95 (ECtHR, 21 October 1999)........................................429 Englert v Germany App no 10282/83 (ECtHR, 25 August 1987).........................................429 Handyside v United Kingdom App no 5493/72 (ECtHR, 7 December 1976)......................429 Herri Batasuna and Batasuna v Spain App nos 25803/04 and 25817/04 (ECtHR, 30 June 2009).....................................................................................................................180 Hirst v United Kingdom (No 2) App no 74025/01 (ECtHR, 6 October 2005).....................350 Jersild v Denmark Series A no 298 (1994)...............................................................................49 JR v Germany App no 22651/93 (Commission Decision, 18 October 1995)..............319, 425 Kleyn v The Netherlands Reports of Judgments and Decisions 2003-VI (2003)..................18 Linkov v Czech Republic App no 10504/03 (ECtHR, 7 December 2006).............................178 Loizidou v Turkey (Preliminary Objections) Series A no 310 (1995)......................................91 MGN Limited v United Kingdom App no 39401/04 (ECtHR, 18 January 2011).................430 Morawetz, Hlavácˇek, Hlavácˇek and Art 38 a.s. v Czech Republic App nos 11179/06, 11163/06 and 1458/07.......................................................................................................316 Pachla v Poland App no 8812/02 (ECtHR, 8 November 2005)............................................429 Paksas v Lithuania App no 34932/04 (ECtHR, 6 January 2011)..........................................176 PB and JS v Austria App no 18984/02 (ECtHR, 20 July 2010).....................................319, 425 Procola v Luxembourg Series A no 326 (1995)........................................................................18

xviii TABLE OF CASES

Roche v United Kingdom App no 32555/96 (ECtHR, 19 October 2005).............................430 Ruiz-Mateos v Spain App no 12952/8 (ECtHR, 23 June 1993)............................................386 Soering v United Kingdom (1989) Series A no 161...............................................................350 Spadea and Scalabrino v Italy App no 12868/87 (ECtHR, 28 September 1995).................430 Süssmann v Germany App no 20024/92 (ECtHR, 16 September 1996)..............................386 Szott-Medynska v Poland App no 47414/99 (ECtHR, 9 October 2003)..............................429 Tyrer v United Kingdom Series A no 26 (1978).......................................................................91 Vajnai v Hungary App no 33629/06 (ECtHR, 8 July 2008)..................................................430 Valkov v Bulgaria App nos 2033/04; 171/05; 19125/04; 19475/04; 19490/04; 19495/04; 2041/05; 24729/04 (ECtHR, 25 October 2011)................................................................430 Von Hannover v Germany App no 59320/00 (ECtHR, 24 June 2004).................................432 Von Hannover v Germany (No 2) App nos 40660/08 and 60641/08 (ECtHR, 7 February 2012)................................................................................................................433 Walden v Liechtenstein App no 33916/96 (ECtHR, 16 March 2000)...........................319, 425 Wypych v Poland App no 2428/05 (ECtHR, 25 October 2005)............................................429

AUSTRIA Constitutional Court (Verfassungsgerichtshof) VfGH no 2455 of 12 December 1952....................................................................................372 VfGH V29/88, 102/88 of 23 June 1988.................................................................................372 VfGH G12/00 of 10 March 2001...........................................................................................372 VfGH Joined Cases U 466/11-18 and U 1836/11-13 of 14 March 2012.............................411

BELGIUM Constitutional Court (Cour Constitutionnelle) Judgment no 27/86 of 22 October 1986...............................................................................113 Judgment no 47/1988 of 25 February 1988, EMU...............................................................231 Judgment no 9/89 (S) of 27 April 1989.................................................................................128 Judgment no 23/89 of 13 October 1989 Biorim.............................................................57, 232 Judgment no 8/90 of 7 February 1990..................................................................................113 Judgment no 18/90 of 23 May 1990, Pacificatie....................................................................232 Judgment no 25/90 of 5 July 1990.........................................................................................128 Judgment no 26/90 of 14 July 1990.......................................................................................128 Judgment no 26/91 of 16 October 1991...............................................................................114 Judgment no 39/91 of 19 December 1991............................................................................129 Judgment no 72/92 of 18 November 1992............................................................................232 Judgment no 62/93 of 15 July 1993.......................................................................................232 Judgment no 72/93 of 7 October 1993 Judgment no 11/94 of 27 January 1994, Bic Benelux...........................................................284 Judgment no 76/94 of 18 October 1994, Treaty of Maastricht.............................................114 Judgment no 90/94 of 22 December 1994............................................................................374

TABLE OF CASES xix

Judgment no 7/95 of 2 February 1995..................................................................................128 Judgment no 32/95 of 4 April 1995.......................................................................................232 Judgment no 64/95 of 13 September 1995...........................................................................232 Judgment no 85/95 of 14 December 1995............................................................................128 Judgment no 65/96 of 13 November 1996............................................................................134 Judgment no 8/97 of 19 February 1997........................................................................313, 373 Judgment no 21/97 of 17 April 1997.....................................................................................232 Judgment no 27/97 of 6 May 1997........................................................................................232 Judgment no 37/97 of 8 July 1997.........................................................................................231 Judgment no 33/98 of 1 April 1998.......................................................................................129 Judgment no 49/99 of 29 April 1999.....................................................................................231 Judgment no 53/99 of 26 May 1999......................................................................................310 Judgment no 80/99 of 30 June 1999......................................................................................310 Judgment no 102/99 of 30 September 1999, Tabaksreclame................................................320 Judgment no 110/99 of 14 October 1999.............................................................................129 Judgment no 13/2000 of 2 February 2000............................................................................233 Judgment no 32/2000 of 21 March 2000..............................................................................232 Judgment no 127/2000 of 6 December 2001 .......................................................................129 Judgment no 10/2001 of 7 February 2001, vzw Vlaamse concentratie en anderen (‘Partijfinanciering’)...................................................................................................294, 295 Judgment no 111/2000 of 8 November 2000........................................................................134 Judgment no 10/2001 of 7 February 2001, Vlaamse concentratie........................................284 Judgment no 100/2001 of 13 July 2001.................................................................................129 Judgment no 41/2002 of 20 February 2002..........................................................................233 Judgment no 117/2002 of 3 July 2002...................................................................................232 Judgment no 30/2003 of 26 February 2003..........................................................................374 Judgment no 53/2003 of 30 April 2003.................................................................................232 Judgment no 73/2003 of 26 May 2003, Brussels-Halle-Vilvoorde........................................320 Judgment no 75/2003 of 28 May 2003..................................................................................233 Judgment no 92/2003 of 24 June 2003..................................................................................231 Judgment no 100/2003 of 17 July 2003.................................................................................232 Judgment no 106/2003 of 22 July 2003.................................................................................233 Judgment no 151/2003 of 26 November 2003..............................................................232, 233 Judgment no 136/2004 of 22 July 2004.................................................................................234 Judgment no 157/2004 of 6 October 2004...................................................................294, 314 Judgment no 189/2004 of 24 November 2004......................................................................233 Judgment no 202/2004 of 21 December 2004......................................................................234 Judgment no 1/2005 of 12 January 2005..............................................................................318 Judgment no 125/2005 of 7 June 2011..................................................................................317 Judgment no 131/2005 of 19 July 2005.................................................................................234 Judgment no 189/2005 of 14 December 2005......................................................................234 Judgment no 52/2006 of 19 April 2006.................................................................................310 Judgment no 111/2008 of 31 July 2008.................................................................................303 Judgment no 17/2009 of 12 February 2009..........................................................................294 Judgment no 64/2009 of 2 April 2009...........................................................................303, 314 Judgment no 195/2009 of 3 December 2009, Partijfinanciering..........................................234 Judgment no 125/2011 of 7 July 2011...................................................................................313

xx TABLE OF CASES

CANADA Supreme Court Schachter v Canada [1992] 2 SCR 679..................................................................................303

CYPRUS Supreme Court Judgment no 294/2005 of 7 November 2005........................................................................412

CZECH REPUBLIC Constitutional Court (Ústavní Soud) Judgment Pl ÚS 19/93 of 21 December 1993, Lawlessness...........................................238, 343 Judgment Pl ÚS 4/94 of 12 October 1994, Anonymous Witness..........................................317 Judgment Pl ÚS 14/94, Beneš Decrees.....................................................................................70 Judgment IV ÚS 81/95 of 18 September 1995, Objection of Conscience.............................312 Judgment Pl ÚS 31/97............................................................................................................238 Judgment Pl IV ÚS 98/97 of 30 June 1997, Object of Criminal Offence..............................388 Judgment 337/97 II US of 13 November 1997.............................................................146, 386 Judgment III ÚS 425/97 of 2 April 1998, Binding Force of Constitutional Court Judgments...........................................................................................................................312 Judgment Pl ÚS 3/2000 of 21 June 2000, Rent Control I......................................................316 Judgment Pl ÚS 42/2000........................................................................................................238 Judgment Pl ÚS 5/01 of 16 October 2001, Milk Quota Regulation.....................................237 Judgment Pl ÚS 21/01 of 12 February 2002, Budget Case...................................................283 Judgment Pl ÚS 36/01 of 25 June 2002, Bankruptcy Trustee........................................236, 238 Judgment Pl ÚS 8/02 of 20 November 2002, Rent Control II..............................................316 Judgment Pl ÚS 11/02 of 11 June 2003, Judges’ Salaries......................................................238 Judgment Pl ÚS 41/02 of 28 January 2002, Clearance of Defence Counsel..........................302 Judgment Pl II ÚS 405/02 of 6 March 2003..........................................................................414 Judgment Pl ÚS 2/03 of 19 March 2003, Rent Control III....................................................316 Judgment Pl ÚS 252/04 of 25 January 2005.........................................................................414 Judgment Pl ÚS 42/03 of 28 March 2006, Protection of Apartment Lease...........................383 Judgment Pl ÚS 37/04 of 26 April 2006, Discrimination.....................................................296 Judgment Pl ÚS 50/04 of 8 March 2006, Sugar Quotas III..................................................236 Judgment Pl ÚS 66/04 of 3 May 2006...................................................................................412 Judgment Pl ÚS 20/05 of 28 February 2006, Rent Control IV.....................................316, 376 Judgment Pl ÚS 36/05 of 16 January 2007, Reimbursement of Medications.......................236 Judgment Pl ÚS 56/05 of 27 March 2008 Squeeze-Out................................................236, 237 Judgment Pl ÚS 4/06 of 20 March 2007...............................................................................391 Judgment Pl ÚS 19/08 of 26 November 2008, Treaty of Lisbon I.................................108, 413

TABLE OF CASES xxi

Judgment Pl IV ÚS 154/08 of 30 June 2008..........................................................................404 Judgment Pl III ÚS 2738/07 of 24 July 2008.........................................................................404 Judgment Pl II ÚS 1009/08....................................................................................................404 Judgment Pl ÚS 1/09 of 27 July 2009, Rehearing following an ECHR Judgment.................114 Judgment Pl ÚS 27/09 of 10 September 2009, Constitutional Act on Shortening the Term of Office of the Chamber of Deputies........................................................114, 238, 372 Judgment Pl ÚS 29/09 of 3 November 2009, Treaty of Lisbon II.................................108, 413 Judgment Pl ÚS 13/10 of 27 May 2010.................................................................................178 Judgment Pl ÚS 24/10 of 22 March 2011.............................................................................412 Judgment Pl ÚS 5/12 of 31 January 2012, Slovak Pensions..................................................414 Judgment Pl ÚS 17/13 of 27 March 2013.............................................................................174

DENMARK Supreme Court Tsvind case, UfR 1999.841H....................................................................................................94

ESTONIA Constitutional Review Chamber of the Supreme Court Judgment of 18 February 1994, III-4/A-3/94.........................................................................37 Judgment of 10 May 1996, 3-4-1-1-96....................................................................................36 Opinion 3-4-1-3-06 on the interpretation of the Constitution..........................................409 Judgment of 23 February 2009, 3-4-1-18-08..........................................................................36

FINLAND Supreme court KKO 2004:26...................................................................................................78 Supreme administrative court, KHO 2007:77........................................................................78 Supreme administrative court KHO 2008:25.........................................................................78 Insurance court 6254:2005......................................................................................................78 Helsinki administrative court, decision of 9 October 2006, T:06/1410/1.............................78

FRANCE Constitutional Council (Conseil constitutionnel) Décision no 60-8 DC of 11 August 1960..............................................................................102 Décision no 60-11 DC of 20 January 1961...........................................................................102 Décision no 62-18L of 16 January 1962................................................................................312

xxii TABLE OF CASES

Décision no 62-20 DC of 6 November 1962, Referendum Law.............................60, 101, 183 Décision no 63-21 DC of 12 March 1963.............................................................................102 Décision no 64-27 DC of 18 December 1964.......................................................................102 Décision no 68-35 DC of 30 January 1968...........................................................................102 Décision no 70-39 DC of 19 June 1970, Budgetary provisions of the EC Treaties..........................................................................................................103, 244, 249 Décision no 70-41 DC of 30 December 1974.......................................................................102 Décision no 71-44 DC of 16 July 1971, Liberté d’association.................................60, 102, 244 Décision no 73-51 DC of 27 December 1973, Finance Law of 1974............................102, 245 Décision no 74-54 DC of 15 January 1975, Voluntary interruption of Pregnancy Act.............................................................................................................248, 284 Décision no 76-71 DC of 30 December 1976.......................................................................103 Décision no 78-96 DC of 27 July 1978.................................................................................248 Décision no 80-117 DC of 22 July 1980...............................................................................248 Décision no 80-128 DC of 20 January 1981 Loi renforçant la sécurité et protégeant la liberté des personnes........................................................................................................297 Décision no 81-132 DC of 16 January 1982, Nationalisation Law......................................245 Décision no 82-141 DC of 27 July 1982...............................................................................247 Décision no 82-143 DC of 30 July 1982, Blocage des pris et des revenus................................59 Décision no 82-146 DC of 18 November 1982..............................................................24, 358 Décision no 85-187 DC of 25 January, Loi relative à l’état d’urgence en NouvelleCalédonie et dépendances...........................................................................................101, 102 Décision no 85-188 DC of 22 May 1985...............................................................................103 Décision no 85-197 DC of 23 August 1985..........................................................................313 Décision no 86-216 DC of 3 September 1986......................................................................248 Décision no 87-226 DC of 2 June 1987, Loi organisant la consultation des populations intéressées de la Nouvelle-Calédonie et dépendances prévue par l’alinéa premier de l’article 1er de la loi no 86-844 relative à la Nouvelle-Calédonie.......................................182 Décision no 88-244 DC of 20 July 1988.......................................................................246, 312 Décision no 88-1040/1054 AN of 13 July 1988....................................................................171 Décision no 88-1043 AN of 21 June 1988............................................................................171 Décision no 88-1046 AN of 21 October 1988......................................................................171 Décision no 88-1081 AN of 21 October 1988......................................................................171 Décision no 88-1082/1117 AN of 21 October 1988, Val-d’Oise..................................171, 248 Décision no 88-1093 AN of 25 November 1988..................................................................171 Décision no 89-268 DC of 29 December 1989.....................................................................248 Décision no 91-290 DC of 9 May 1991, Act on the statute of the territorial unit of Corsica................................................................................................................................358 Décision no 91-293 DC of 23 July 1991...............................................................................249 Décision no 91-298 DC of 24 July 1991...............................................................................249 Décision no 92-308 DC of 9 April 1992, Maastricht Treaty I......................................103, 249 Décision no 92-312 DC of 2 September 1992......................................................................103 Décision no 92-313 DC of 23 September 1992, Treaty of Maastricht III..............60, 101, 183 Décision no 93-325 DC of 13 August 1993, Act on the control of immigration and conditions of entry, reception and residence for aliens in France........................................357 Décision no 93-335 DC of 21 January 1994.........................................................................249 Décision no 97-394 DC of 31 December 1997.....................................................................103

TABLE OF CASES xxiii

Décision no 98-407 DC of 14 January 1999, Act determining the mode of election of regional councillors and of councillors in the Corsican Assembly, and the operation of regional councils......................................................................................................246, 358 Décision no 98-408 DC of 22 January 1999.........................................................................103 Décision no 2000-429 DC of 30 May 2000.....................................................................24, 359 Décision no 2000-430 DC of 29 June 2000, Loi organique tendant à favoriser l’égal accès des femmes et des hommes aux mandats de membre des assemblées de province et du congrès de la Nouvelle-Calédonie, de l’assemblée de la Polynésie française et de l’assemblée territoriale des îles Wallis-et-Futuna................................................................359 Décision no 2001-445 DC of 19 June 2001, Loi organique relative au statut des magistrats et au Conseil supérieur de la magistrature........................................................360 Décision no 2001-446 DC of 27 June 2001, Voluntary interruption of Pregnancy (Abortion) and Contraception Act......................................................................................284 Décision no 2001-454 DC of 17 January 2002, Loi relative à la Corse................................360 Décision no 2002-461 DC of 29 August 2002......................................................................246 Décision no 2004-457 DC of 27 December 2001.................................................................249 Décision no 2003-468 DC of 3 April 2003...........................................................................313 Décision no 2003-469 DC of 26 March 2003, Révision constitutionnelle relative à l’organisation décentralisée de la République.....................................................................360 Décision no 2003-475 DC of 24 July 2003...........................................................................247 Décision no 2003-484 DC of 20 November 2003................................................................138 Décision no 2004-490 DC of 12 February 2004, Organic law on the statute of autonomy of French Polynesia............................................................................................304 Décision no 2004-492 DC of 2 March 2004, Law adapting the Administration of Justice to the changing face of crime...................................................................................304 Décision no 2004-496 DC of 10 June 2004..........................................................................249 Décision no 2004-497 DC of 1 July 2004.............................................................................249 Décision no 2004-500 DC of 29 July 2004...........................................................................336 Décision no 2004-505 DC of 19 November 2004, Treaty establishing a Constitution for Europe....................................................................................................................103, 415 Décision no 2005-512 DC of 21 April 2005.........................................................................336 Décision no 2006-533 DC of 16 March 2006, Loi rélative à l’égalité salariale entre les femmes et les homes............................................................................................................360 Décision no 2006-535 DC of 30 March 2006.......................................................................249 Décision no 2006-540 DC of 27 July 2006...................................................................249, 415 Décision no 2006-543 DC of 30 November 2006........................................................249, 415 Décision no 2007-560 DC of 20 December 2007.................................................................103 Décision no 2008-564 DC of 19 June 2008 (GMOs)...................................................247, 320 Décision no 2009-577 DC of 3 March 2009.........................................................................247 Décision no 2009-595 DC of 3 December 2009...................................................136, 137, 421 Décision no 2009-599 DC of 29 December 2009.................................................................247 Décision no 2010-603 DC of 12 May 2010, Act pertaining to the opening up to competition and the regulation of online betting and gambling....................................422 Décision no 2010-613 DC Act prohibiting the concealing of the face in public......................34 Décision no 2013-314P QPC of 4 April 2013.......................................................................404

xxiv TABLE OF CASES

Court of Cassation (Cour de cassation) Decision of 27 May 1971, SA Fromagerie franco-suisse Le Ski.............................................421 Decision of 24 May 1975, Administration des Douanes v Société Cafés Jacques Vabre, D, 1975, 497........................................................................................................100, 138, 248 Decision P.04.0849.N of 9 November 2004..........................................................................421 Decision P.04.0644.N of 16 November 2004........................................................................421 Council of State (Conseil d’État) Decision of 7 July 1950, Dehaène, Rec 426...........................................................................244 Decision of 11 July 1956, Amicale des Annamites de Paris, Rec 317.....................................244 Decision of 7 June 1957, Condamine, RDP 1958, 98............................................................244 Decision of 20 October 1989, Nicolo, Rec 190......................................................................100 Decision no 312305 of 14 May 2010.....................................................................................422

GERMANY Federal Constitutional Court (Bundesverfassungsrecht) BVerfG 1, 14 (1951) Southwest State.............................................................................240, 242 BVerfG 1, 87 (1951) Mental Deficiency Case.........................................................................144 BVerfG 1, 97 (1951)................................................................................................................144 BVerfG 1, 184 (1952)................................................................................................................65 BVerfG 1, 208 (1952) Schleswig-Holstein Voters’ Association Case.......................................169 BVerfG 1, 299 (1952) Housing Funding.................................................................................242 BVerfG 1, 396 (1952)......................................................................................................109, 116 BVerfG 1, 418 (1952)..............................................................................................................144 BVerfG 2, 1 (1952) Socialist Reich Party Case.......................................................................176 BVerfG 2, 124 (1953)................................................................................................................65 BVerfG 2, 266 (1953)..............................................................................................................292 BVerfG 3, 359 (1954) Firma L and Company Case...............................................................144 BVerfG 3, 383 (1954)..............................................................................................................144 BVerfG 4, 7 (1954) Investment Aid I......................................................................................284 BVerfG 4, 27 (1954) Plenum Party Case................................................................................167 BVerfG 4, 157 (1955)..............................................................................................................311 BVerfG 5, 85 (1956) Communist Party Case.........................................................................176 BVerfG 6, 32 (1957)................................................................................................................240 BVerfG 6, 300 (1957)..............................................................................................................376 BVerfG 7, 45 (1958)................................................................................................................379 BVerfG 7, 198 (1958) Lüth............................................................................. 154, 241, 338, 391 BVerfG 7, 241 (1958) Three-Justice Committee Case............................................................145 BVerfG 7, 367 (1958)..............................................................................................................157 BVerfG 10, 271 (1960)............................................................................................................243 BVerfG 10, 302 (1960)............................................................................................................144 BVerfG 12, 205 (1961) Television I........................................................................................242

TABLE OF CASES xxv

BVerfG 13, 54 (1961)................................................................................................................65 BVerfG 16, 130 (1963)....................................................................................................311, 324 BVerfG 17, 1 (1963)................................................................................................................311 BVerfG 18, 85 (1964)..............................................................................................................387 BVerfG 18, 440 (1965) Three-Justice Committee Case..........................................................165 BVerfG 19, 129 (1965)............................................................................................................144 BVerfG 19, 241 (1958) Three-Justice Committee Case..........................................................165 BVerfG 23, 153 (1968) Bank Standing Case..........................................................................144 BVerfG 25, 101 (1969)............................................................................................................324 BVerfG 27, 1 (1969) Microcensus...........................................................................................241 BVerfG 28, 227 (1970)............................................................................................................323 BVerfG 30, 1 (1970) Klass Case..............................................................................................372 BVerfG 31, 145 (1971) Alphons Lütticke........................................................................243, 404 BVerfG 32, 189 (1972)............................................................................................................323 BVerfG 33, 1 (1972)................................................................................................................324 BVerfG 33, 303 (1972) Numerus Clausus I............................................................................317 BVerfG 33, 349 (1972)............................................................................................................324 BVerfG 34, 9 (1972)................................................................................................................323 BVerfG 35, 382 (1973)............................................................................................................144 BVerfG 36, 1 (1973) East-West Basic Treaty..........................................................................239 BVerfG 36, 146 (1973)............................................................................................................324 BVerfG 36, 342 (1974)..............................................................................................................65 BVerfG 37, 217 (1974)....................................................................................................312, 323 BVerfG 37, 271 (1974) Solange I............................................................................................109 BVerfG 37, 324 (1974)............................................................................................................338 BVerfG 39, 1 (1975) Abortion I...................................................................... 117, 242, 317, 338 BVerfG 39, 169 (1975)............................................................................................................311 BVerfG 40, 88 (1975)................................................................................................................65 BVerfG 41, 251 (1976)............................................................................................................318 BVerfG 42, 143 (1976)............................................................................................................387 BVerfG 45, 187 (1977) Life Imprisonment...............................................................45, 241, 371 BVerfG 49, 168 (1978)............................................................................................................144 BVerfG 51, 304 (1979)............................................................................................................379 BVerfG 54, 277 (1980)............................................................................................................293 BVerfG 55, 100 (1980)............................................................................................................323 BVerfG 55, 159 (1980) Falconry.............................................................................................241 BVerfG 60, 175 (1982)..............................................................................................................65 BVerfG 61, 319 (1982)............................................................................................................318 BVerfG 62, 1 (1984) First Parliamentary Dissolution Case...................................................167 BVerfG 62, 117 (1982)....................................................................................................313, 314 BVerfG 64, 301 (1983)............................................................................................................109 BVerfG 65, 1 (1983), Census Act............................................................................................144 BVerfG 65, 325 (1983)............................................................................................................313 BVerfG 69, 1 (1985) Conscientious Objector II......................................................................293 BVerfG 72, 330 (1986)............................................................................................................323 BVerfG 73, 40 (1986) Party Finance VI Case.........................................................................166 BVerfG 73, 339 (1986) Wünsche Handelsgesellschaft (Solange II)................................243, 410

xxvi TABLE OF CASES

BVerfG 74, 102 (1987)............................................................................................................243 BVerfG 74, 358 (1987)............................................................................................................243 BVerfG 75, 223 (1987) Kloppenburg......................................................................................413 BVerfG 78, 58 (1968)..............................................................................................................386 BVerfG 79, 311 (1989)............................................................................................................116 BVerfG 80, 188 (1989) Wüppesahl Case................................................................................167 BVerfG 80, 244 (1989)............................................................................................................379 BVerfG 82, 159 (1990)............................................................................................................404 BVerfG 83, 130 (1990) Josefine Mutzenbacher.......................................................................324 BVerfG 84, 90 (1991) Expropriation I....................................................................................372 BVerfG 84, 133 (1991)............................................................................................................324 BVerfG 87, 153 (1992)............................................................................................................323 BVerfG 88, 203 (1993) Abortion II.........................................................................................341 BVerfG 89, 15 (1993)..............................................................................................................323 BVerfG 89, 155 (1993) Maastricht Urteil.......................................................................109, 413 BVerfG 91, 262 (1994) National List.....................................................................................176 BVerfG 91, 276 (1994) Free German Workers Party..............................................................176 BVerfG 93, 121 (1995)............................................................................................................324 BVerfG 94, 12 (1996) Expropriation II..................................................................................372 BVerfG, 2 BvR 1938/93 and 2 BvR 2315/93 (1996) Asylum Cases.......................................372 BVerfG 96, 120 (1997)............................................................................................................342 BVerfG 98, 145 (1998)............................................................................................................379 BVerfG 99, 185 (1998)............................................................................................................241 BVerfG, 2 BvR 1057/91 (1998)..............................................................................................316 BVerfG, 1 BvR 653/96 (1999) Princess Caroline of Monaco..................................................431 BVerfG 102, 147 (2000) Bananas III.....................................................................................410 BVerfG, 1 BvR 1036/99 (2001)..............................................................................................404 BVerfG 105, 73 (2002)............................................................................................................323 BVerfG, 1 BvR 1783/99 (2002)..............................................................................................363 BVerfG 107, 27 (2002)............................................................................................................323 BVerfG 108, 370 (2003)..........................................................................................................109 BVerfG, 2 BvB 1/01 (2003) National Democratic Party Germany........................................177 BVerfG, 1 BvR 2378/98 (2004) Acoustic Surveillance of Homes...........................................372 BVerfG, 2 BvR 1481/01 (2004)......................................................................................432, 433 BVerfG, 2 BvR 148/04 (2004) Görgülü..................................................................................243 BVerfG 112, 268 (2005)..........................................................................................................323 BVerfG 114, 121 (2005)..........................................................................................................167 BVerfG 114, 339 (2005)..........................................................................................................241 BVerfG, 1 BvR 1905/02 (2005)..............................................................................................391 BVerfG, 2BvR 2236/04 (2005)...............................................................................................412 BVerfG 115, 259 (2006)..........................................................................................................323 BVerfG 116, 229 (2006)..........................................................................................................323 BVerfG 116, 243 (2006) Exclusion of Transsexual Foreigners from the Transsexuals Act......324 BVerfG 118, 79 (2007)............................................................................................................243 BVerfG, 2 BvR 2433/04 (2007)..........................................................................................2, 363 BVerfG 120, 274 (2008), Data Collection and Online Searches.............................................241 BVerfG, 2 BvC 1/07 7 (2008).................................................................................................170

TABLE OF CASES xxvii

BVerfG, 1 BvR 1602/07 (2008) Von Hannover 2...........................................................432, 433 BVerfG, 2 BvE 2/08 (2009) Lisbon Treaty........................................................................50, 109 BVerfG, 2 BvL 3/02 (2009).....................................................................................................383 BVerfG, 2 BvL 54/06 (2009)...................................................................................................320 BVerfG 125, 260 (2010)..........................................................................................................243 BVerfG, 1 BvR 256/08 (2010) Data Retention.......................................................................417 BVerfG, 2 BvR 759/10 (2010)................................................................................................387 BVerfG, 2 BvR 2661/06 (2010) Honeywell............................................................404, 413, 414 BVerfG, 1 BvR 699/09 (2011)................................................................................................391 BVerfG, 2 BvR 2365/09 and 2 BvR 2333/08 (2011)......................................................323, 432 BVerfG, BvL 3/08 (2011)........................................................................................................243 Reichtsgericht Reichsgericht, 107 RGZ 377 (1924)..........................................................................................63 Reichsgericht, 111 RGZ 320 (1925)..........................................................................................63 Bayern constitutional court Decision of 10 June 1949, Vf 52-VII-47................................................................................240 Decision of 24 April 1950, Vf 42, 54, 80, 88-VII-48.............................................................240

HUNGARY Constitutional Court (Alkotmánybíróság) Decision 1/1990 of 12 February 1990...................................................................................141 Decision 3/1990 of 27 February 1990...................................................................................364 Decision 4/1990 of 4 March 1990.........................................................................................141 Decision 7/1990 of 23 October 1990.....................................................................................141 Decision 8/1990 of 23 April 1990..........................................................................................250 Decision 23/1990 of 31 October, On capital punishment.....................................................131 Decision 31/1990 of 18 December........................................................................................141 Decision 8/1991 of 30 January 1992.....................................................................................141 Decision 15/1991 of 13 April 1991, On the use of personal data and the personal identification number.........................................................................................................131 Decision 16/1991 AB of 20 April 1991, Compensation case II.............................................105 Decision 48/1991 of 26 October 1991...................................................................................141 Decision 57/1991 of 8 November 1991, On legal guardians and the family act..................148 Decision 64/1991 of 17 December 1991, On the regulation of abortion..............................284 Decision 9/1992 of 30 January 1992, On the protest of illegality..................................251, 291 Decision 11/1992 of 5 March 1992...............................................................................251, 343 Decision 36/1992 of 10 June 1992.........................................................................................141 Decision 60/1992 of 17 November 1992...............................................................................117 Decision 21/1993 of 22 January 1993...................................................................................141 Decision 41/1993 of 30 June 1993.........................................................................................345 Decision 42/1993 of 30 June 1993.........................................................................................345

xxviii TABLE OF CASES

Decision 53/1993 of 13 October 1993...........................................................................345, 346 Decision 293/B/1994; decision 23/1994 of 29 April 1994............................................252, 372 Decision 34/1994 of 24 June 1994.........................................................................................148 Decision 37/1994 of 24 June 1994.........................................................................................161 Decision 14/1995 of 13 March 1995.....................................................................................250 Decision 42/1995 of 30 June 1995.........................................................................................252 Decision 43/1995 of 30 June 1995.................................................................................131, 251 Decision 22/1996 of 25 June 1996, Compensation for past injustices II...............................106 Decision 4/1997 of 22 January 1997, On the review of international treaties......................117 Decision 66/1997 (I.22) of 29 December 1997.....................................................................106 Decision 1260/B/1997 of 9 February 1998...........................................................................117 Decision 23/1998 Failure to make the constitutional complaint an effective legal remedy...148 Decision 14/2000 of 12 May 2000).......................................................................................430 Decision 42/2000 of 8 November 2000.................................................................................141 Decision 61/2001 of 12 July 2011..........................................................................................252 Decision 62/2003 (XII.15) AB of 5 December 2003...............................................................38 Decision 42/2005 of 14 November 2005...............................................................................117 Decision 1053/E/2005 of 16 June 2006.................................................................................253 Decision 72/2006 of 12 December 2006...............................................................................253 Decision 184/2010 of 28 October 2010.................................................................................364 Decision 143/2010 (VII.14) AB of 12 July 2010, Treaty of Lisbon.......................................104 Decision 29/2011 of 7 April 2011..........................................................................................131 Decision 37/2011 of 10 May 2011.........................................................................................365 Decision 61/2011 of 13 June 2011.................................................................................252, 372 Decision 22/2012 of 11 May 2012.........................................................................................255 Decision 32/2012 of 4 July 2012............................................................................................367 Decision 38/2012 of 14 November 2012...............................................................................367 Decision 45/2012 of 29 December 2012...............................................................255, 365, 366 Decision IV/2478/2012 of 19 February 2013........................................................................430 Decision 1/2013 of 7 January 2013...............................................................................255, 366

IRELAND Supreme Court Attorney-General v X [1992] IESC 1, [1992] 1 IR 1 (5 March 1992)...................................370

ITALY Constitutional Court (Corte costituzionale) Sentenza 1/1956 of 5 June 1956.....................................................................................255, 256 Sentenza 3/1956 of 15 April 1956..........................................................................................287 Sentenza 7/1958 of 24 January 1958.....................................................................................310 Sentenza 30/1959 of 30 April 1959........................................................................................121

TABLE OF CASES xxix

Sentenza 64/1961 of 23 November 1961...............................................................................337 Sentenza 8/1967 of 1 February 1967.....................................................................................121 Sentenza 48/1967 of 12 April 1967........................................................................................256 Sentenza 126/1968 of 16 December 1968.............................................................................337 Sentenza 64/1970 of 23 April 1970........................................................................................320 Sentenza 30/1971 of 24 February 1971.................................................................................256 Sentenza 12/1972 of 27 January 1972...................................................................................256 Sentenza 147/1972 of 14 July 1972........................................................................................121 Sentenza 123/1975 of 21 May 1975.......................................................................................121 Sentenza 175/1973 of 6 December 1973...............................................................................256 Sentenza 183/73 of 27 December 1973, Frontini Ministero delle Finanze...........................410 Sentenza 132/1975 of 21 May 1975.......................................................................................121 Sentenza 221/1975 of 8 July 1975..........................................................................................121 Sentenza 231/1975 of 22 October 1975................................................................................165 Sentenza 232/1975 of 22 October 1975................................................................................418 Sentenza 126/1976 of 7 May 1976.........................................................................................121 Sentenza 205/1976 of 15 July 1976........................................................................................418 Ordinanza 206/1976 of 15 July 1976.....................................................................................418 Sentenza 212/1976 of 15 July 1976........................................................................................121 Sentenza 1/1977 of 4 January 1977.......................................................................................256 Sentenza 16/1978 of 2 February 1978...........................................................................183, 184 Sentenza 48/1979 of 12 June 1979.........................................................................................256 Sentenza 188/1980 of 16 December 1980.............................................................................258 Sentenza 15/1982 of 1 February 1982...................................................................................311 Sentenza 18/1982 of 22 January 1982...................................................................................256 Sentenza 170/1984 of 6 June 1984, Granital.........................................................................420 Sentenza 109/1986 of 22 April 1986......................................................................................315 Sentenza 560/1987 of 10 December 1987.............................................................................322 Sentenza 361/1988 of 26 October 1998................................................................................362 Sentenza 1146/1988 of 15 December 1988...........................................................256, 371, 372 Sentenza 232/1989 of 21 April 1989, SpA Fragd v Amministrazione delle Finanze.............410 Sentenza 315/1990 of 26 June 1990.......................................................................................258 Ordinanza 388/1990 of 12 July 1990.....................................................................................258 Sentenza 295/1991 of 17 June 1991.......................................................................................322 Sentenza 467/1991 of 16-19 December 1991.......................................................................315 Sentenza 24/1992 of 22 January 1992...................................................................................362 Sentenza 254/1992 of 18 May 1992.......................................................................................362 Sentenza 255/1992 of 18 May 1992.......................................................................................362 Sentenza 112/1993 of 24-26 March 1993..............................................................................311 Sentenza 168/1994 of 27 April 1994......................................................................................256 Sentenza 384/1994 of 7 November 1994...............................................................................259 Sentenza 94/1995 of 20 March 1995.....................................................................................259 Sentenza 153/1995 of 5 May 1995.........................................................................................320 Sentenza 422/1995 of 6 September 1995..............................................................................361 Sentenza 505/1995 of 11 December 1995.............................................................................258 Ordinanza 536/1995 of 15 December 1995..................................................................404, 420 Sentenza 7/1996 of 6 December 1995...........................................................................166, 257

xxx TABLE OF CASES

Sentenza 15/1996 of 22 January 1996...................................................................................256 Sentenza 356/1996 of 14 October 1996................................................................................384 Sentenza 143/1997 of 19 May 1997.......................................................................................322 Sentenza 350/1997 of 13 November 1997.............................................................................286 Sentenza 288/1997 of 19 June 1997.......................................................................................256 Sentenza 185/1998 of 26 May 1998.......................................................................................317 Ordinanza 388/1990 of 12 July 1990.....................................................................................258 Sentenza 391/1999 of 13 October 1999................................................................................160 Sentenza 41/2000 of 3 February 2000...................................................................................184 Sentenza 45/2000 of 3 February 2000...................................................................................184 Sentenza 50/2000 of 3 February 2000...................................................................................184 Sentenza 73/2001 of 19 March 2001.....................................................................................256 Ordinanza 305/2001 of 12 July 2001.....................................................................................258 Sentenza 49/2003 of 10 February 2003.................................................................................362 Sentenza 196/2003 of 23 May 2003.......................................................................................122 Sentenza 274/2003 of 8 July 2003..........................................................................................121 Sentenza 370/2003 of 17 December 2003.............................................................................320 Sentenza 2/2004 of 18 December 2003.................................................................................372 Sentenza 7/2004 of 18 December 2003.................................................................................259 Sentenza 91/2004 of 8 March 2004.......................................................................................287 Ordinanza 165/2004 of 26 May 2004....................................................................................420 Sentenza 166/2004 of 7 June 2004.........................................................................................259 Sentenza 231/2004 of 8 July 2004..........................................................................................258 Sentenza 372/2004 of 29 November 2004.............................................................................122 Sentenza 378/2004 of 29 November 2004.............................................................................122 Sentencia 138/2005 of 26 May 2005......................................................................................384 Sentenza 224/2005 of 6 June 2005.........................................................................................256 Sentenza 406/2005 of 24 October 2005................................................................................259 Sentenza 129/2006 of 23 March 2006...................................................................................259 Sentenza 200/2006 of 3 May 2006.........................................................................................166 Sentenza 379/2007 of 5 November 2007.......................................................................287, 384 Ordinanza 347/2007 of 10 October 2007.............................................................................258 Sentenza 348/2007 of 22 October 2007................................................................................258 Sentenza 349/2007 of 22 October 2007................................................................................258 Ordinanza 103/2008 of 15 April 2008.....................................................................................67 Ordinanza 103/2008 of 13 February 2008............................................................................259 Sentenza 147/2008 of 7 May 2008.........................................................................................384 Sentenza 19/2009 of 26 January 2009...................................................................................315 Sentenza 311/2009 of 16 November 2009.............................................................................258 Sentenza 4/2010 of 15 December 2009.................................................................................362 Sentenza 28/2010 of 25 January 2010...................................................................................259 Sentenza 227/2010 of 21 June 2010.......................................................................................259 Court of cassation (Corte suprema di cassazione) Judgment of 7 February 1948, Marcianò Giur It 1948, II, 129..............................................67 Judgment of 31 March 2004..................................................................................................381

TABLE OF CASES xxxi

LITHUANIA Constitutional Court (Konstitucinis Teismas) Case no 40/03 of 30 December 2003.....................................................................................175 Case no 14/04 of 31 March 2004...........................................................................................175 Case no 24/04 of 25 May 2004..............................................................................................176 Joined Cases no 17/02, 24/02, 06/03, 22/04 of 14 March 2006 (On the limitation of the rights of ownership in areas of particular value and in forest land)...................................409

LUXEMBOURG Constitutional Court (Cour constitutionnelle) Arrêt 17/02 du 7 mars 2003, Mém A-41 du 2 avril 2003, 656)..............................................97

POLAND Constitutional Tribunal (Trybunał Konstytucyjny) Decision K1/88 of 30 November 1988..................................................................................354 Decision K 3/88 of 4 October 1989.......................................................................................355 Decision K 4/91 of 25 February 1992...................................................................................355 Decision K 8/91 of 7 January 1992........................................................................................261 Decision K 14/91 of 11 February 1992.................................................................................355 Decision U 12/92 of 20 April 1993........................................................................................261 Decision K 17/92 of 29 September 1993...............................................................................261 Decision K 13/93 of 29 March 1994......................................................................................355 Decision K 16/93 of 10 January 1995....................................................................................355 Decision K 1/95 of 15 March 1995................................................................................354, 355 Decision W 1/95 of 5 September 1995..................................................................................354 Decision K 4/95 of 23 October 1995.....................................................................................261 Decision K 10/95 of 17 October 1995...................................................................................261 Decision K 18/95 of 9 January 1996......................................................................................355 Decision K 27/95 of 20 November 1996...............................................................................355 Decision K 2/96......................................................................................................................260 Decision K 22/96 of 17 December 1997...............................................................................356 Decision K 38/97 of 4 May 1998...........................................................................................356 Decision K 10/98 of 15 September 1998...............................................................................356 Decision P 11/98 of 12 January 2002....................................................................................261 Decision K 21/99 of 10 May 2000.........................................................................................261 Decision of 8 March 2000, Pp1/99, Chairman’s powers within the ‘Christian Democratic Party of the Third Polish Republic’.....................................................................................179 Decision SK 18/00 of 4 December 2001, State liability for harm caused by unlawful actions of its functionaries.......................................................................................................289, 380

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Decision K 26/00 of 10 April 2002........................................................................................261 Decision Ts 139/00 of 6 February 2001, Subject of review initiated by constitutional complaint............................................................................................................................151 Decision Ts 189/00 of 13 February 2001, Final decision as a condition for lodging a constitutional complaint.....................................................................................................150 Decision Ts 174/02 of 25 May 2004, Subsidiary character of a constitutional complaint....................................................................................................................150, 386 Decision SK 10/01 of 24 October 2001, Constitutional complaint and the principle of equality...........................................................................................................................150 Decision SK 5/01 of 28 November 2001, Inadmissibility to review the constitutionality of rural land reform............................................................................................................118 Decision SK 18/00 of 4 December 2001, State liability for harm caused by unlawful actions of its functionaries..........................................................................................289, 380 Decision K 2/02 of 28 January 2003......................................................................................261 Decision K 55/02 of 16 September 2003, Brief vacatio legis in introducing the requirement to obtain a license for cable network retransmissions.........................................................284 Decision Ts 174/02 of 25 May 2004, Subsidiary character of a constitutional complaint....................................................................................................................150, 386 Decision Ts 35/04 of 23 February 2005, Inadmissibility of commune’s constitutional complaint............................................................................................................................150 Decision P 8/04 of 18 October 2004.....................................................................................261 Decision K 18/04 of 11 May 2005, Poland’s membership in the European Union— The Accession Treaty...................................................................................................262, 409 Decision P 1/05 of 27 April 2005, European Arrest Warrant................................................262 Decision SK 14/05 of 1 September 2006...............................................................................289 Decision K 17/05 of 20 March 2006......................................................................................261 Decision P 37/05 of 19 December 2006................................................................................261 Decision P 1/06 of 20 February 2007....................................................................................261 Decision K 18/06 of 7 November 2007.........................................................................261, 262 Decision P 30/06 of 9 July 2007.............................................................................................262 Decision I KZP 37/08 of 25 February 2009..........................................................................381 Decision Kpt 2/08 of 20 May 2009........................................................................................167 Decision K 32/09 of 24 November 2010, Treaty of Lisbon...................................................415

ROMANIA Constitutional Court (Curtea Constituţională a României) Decision no 148 of 16 April 2003..........................................................................................372 Decision no 12581 of October 2009.....................................................................................412 Decision no 683 of 27 June 2012...........................................................................................373

TABLE OF CASES xxxiii

SOUTH AFRICA Constitutional Court National Coalition for Gay and Lesbian Equality v Minister of Home Affairs [2000] (s) SA 1 (CC)......................................................................................................................303

SPAIN Constitutional Tribunal (Tribunal Constitucional) Sentencia 15/1969 of 12 February 1969................................................................................315 Sentencia 48/1980 of 13 October 1980.................................................................................123 Sentencia 76/1980 of 29 October 1980.................................................................................123 Sentencia 5/1981 of 13 February 1981..................................................................................262 Sentencia 17/1981 of 1 June 1981.........................................................................................283 Sentencia 25/1981 of 14 July 1981.........................................................................................120 Sentencia 32/1981 of 28 July 1981.........................................................................................158 Sentencia 10/1982 of 23 March 1982....................................................................................263 Sentencia 16/1982 of 28 April 1982......................................................................................262 Sentencia 42/1982 of 4 August 1982.....................................................................................262 Sentencia 84/1982 of 23 December 1982..............................................................................176 Sentencia 49/1984 of 5 April 1984........................................................................................158 Sentencia 42/1985 of 15 March 1985....................................................................................119 Sentencia 66/1985 of 23 May 1985........................................................................................107 Sentencia 45/1986 of 17 April 1986......................................................................................165 Sentencia 74/1987 of 25 May 1987........................................................................................300 Sentencia 199/1987 of 16 December 1987............................................................................120 Sentencia 49/1988 of 22 March 1988....................................................................................317 Sentencia 209/1988 of 10 November 1988...........................................................................321 Sentencia 45/1989 of 20 February 1989........................................................ 154, 318, 320, 321 Sentencia 55/1990 of 28 March 1990....................................................................................318 Sentencia 71/1990 of 5 April 1990........................................................................................317 Ordinanza 279/1990 of 31 May 1990....................................................................................293 Sentencia 28/1991 of 14 February 1991........................................................................263, 404 Sentencia 36/1991 of 14 February 1991................................................................................316 Sentencia 64/1991 of 24 April 1991......................................................................................263 Sentencia 214/1991 of 11 November 1991...........................................................................263 Déclaracion 1/1992 of 1 July 1992........................................................................................106 Sentencia 111/1993 of 27 April 1993....................................................................................292 Sentencia 303/1993 of 25 October 1993...............................................................................262 Sentencia 372/1993 of 13 December 1993............................................................................404 Sentencia 254/1994 of 15 September 1994...........................................................................318 Sentencia 195/1998 of 1 October 1998.................................................................................320 Sentencia 115/2000 of 5 May 2000........................................................................................388 Sentencia 292/2000 of 30 November 2000...........................................................................263

xxxiv TABLE OF CASES

Sentencia 175/2001 of 28 June 2001.....................................................................................146 Sentencia 186/2001 of 17 September 2001...........................................................................389 Sentencia 53/2002 of 27 February 2002................................................................................263 Sentencia 48/2003 of 12 March 2003....................................................................................180 Déclaracion 1/2004 of 13 December 2004............................................................106, 263, 415 Sentencia 5/2004 of 16 January 2004....................................................................................180 Sentencia 6/2004 of 16 January 2004....................................................................................180 Sentencia 426/2004 of 16 December 2004............................................................................320 Sentencia 27/2005 of 12 January 2005..................................................................................315 Sentencia 247/2007 of 12 December 2008............................................................................163 Sentencia 12/2008 of 29 January 2008..................................................................................360 Ordinanza 188/2008 of 21 July 2008.....................................................................................147 Sentencia 70/2009 of 23 March 2009....................................................................................147 Sentencia 155/2009 of 25 July 2009.......................................................................................147 Sentencia 31/2010 of 28 June 2010.......................................................................................163 Supreme Court (Tribunal Supremo) First senate of the Tribunal Supremo, sentencia of 31 December 1996...............................388 First senate of the Tribunal Supremo, sentencia of 20 July 2000..........................................389

THE NETHERLANDS Supreme Court (Hoge Raad) Decision of 19 February 1858, Weekblad van het recht, no 1936...........................................81 Decision of 28 February 1868, W 2995...................................................................................80 Decision of 3 March 1919, Grenstractaat Aken, NJ 1919, 371................................................81 Decision of 9 January 1924, NJ 1924, 296...............................................................................80 Decision of 27 January 1961, Van den Bergh / Staat der Nederlanden, NJ 1963, 248...........80 Decision of 14 April 1989, Harmonisatiewet (Harmonisation Act).......................................54 Decision of 2 November 2004, Rusttijden, LJN AR1797......................................................265 Council of State (Raad van State) Decision of 26 April 1994, VZW Sint-Lodewijksscholen.........................................................17

UNITED KINGDOM Supreme Court R v Michael Horncastle and others (Appellants) [2009] UKSC 14........................................434

TABLE OF CASES xxxv

House of Lords R v Secretary of State for Employment, ex parte Equal Opportunities Commission [1991] AC 603......................................................................................................................84 R v Secretary of State for Transport, ex parte Factortame (No 2) [1991] 1 All ER 70.....84, 266 R v Secretary of State for the Home Department, ex parte Pierson [1998] AC 539.................83 R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115...............83 R v A (No 2) [2002] 1 AC 45............................................................................................84, 349 A v Secretary of State for the Home Department (‘Belmarsh Prison Case I’) [2004] UKHL 56....................................................................................................................350, 351 Ghaidan v Godin-Mendoza [2004] UKHL 30.................................................................84, 349 R (Ullah) v Special Adjudicator [2004] UKHL 26.................................................................435 A v Secretary of State for the Home Department (No 2) (‘Belmarsh Prison Case II’) [2005] UKHL 71............................................................................................................................351 R (Jackson) v Attorney-General [2005] UKHL 55...................................................................85 R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15................................................................................................................353 Court of Appeal R v Michael Horncastle and others [2009] EWCA Crim 964................................................434 R (On the application of the Children’s Rights Alliance for England) v Secretary of State for Justice [2013] EWCA Civ 34.........................................................................................434 High Court Thoburn v Sunderland City Council [2002] EWHC 195 (Admin); [2003] QB 151..............83 High Court of Justiciary (Scotland) Smith v Scott [2007] CSIH 9..................................................................................................350

UNITED STATES Supreme Court William Marbury v James Madison 5 US 137 (1803)..........................................................1, 94 Lochner v New York 198 US 45 (1905).....................................................................................58 Brown v Board of Education of Topeka 347 US 483 (1954)

Table of European Treaties and European Legal Instruments 1951 Treaty establishing the European Coal and Steel Community, Art 31.........................88 1957 Treaty establishing the European Economic Community, Art 164..............................88 1957 Treaty establishing the European Atomic Energy Community, Art 136......................88 Protocol (No 2) on the application of the principles of subsidiarity and proportionality [2006] OJ C83/206.............................................................................................................199 Protocol (No 17) concerning Article 141 of the Treaty establishing the European Community........................................................................................................................369 Protocol (No 36) on transitional provisions [2010] OJ C83/322........................................307

EUROPEAN REGULATIONS, DIRECTIVES AND DECISIONS Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC [1996] OJ L145/4.............................305 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180/22.........................................................................................................................296 Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2011 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights [2004] OJ L46/1......................................................................................................306 Council Decision 2004/752/EC, Euratom of 2 November 2004, establishing the European Union Civil Service Tribunal [2004] OJ L333/7......................................202, 223 Regulation (EC) No 2004/2003 of the European Parliament and of the Council of 4 November 2003 on the regulations governing political parties at European level and the rules regarding their funding [2003] OJ L297/1.................................................201 Council Decision 2010/124 of 25 February 2010 relating to the operating rules of the panel provided for in Article 255 on the TFEU [2010] OJ L50/18..................................225 Council Decision 2010/125 of 25 February 2010 appointing the members of the panel provided for in Article 255 of the TFEU [2010] OJ L50/20.............................................225

STATUTE OF AND RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN UNION Statute of the Court of Justice of the European Union........................................226, 227, 228 Rules of Procedure of the Court of Justice [2012] OJ L265/1.............................................226

Table of Statutes AUSTRIA Constitutional Court Act 1953..............................................................................................142

BELGIUM Council of State Act.....................................................................................................16, 17, 18 Special Majority Act of 8 August 1980 pertaining to the Reform of the State Institutions...........................................................................................................................56 Special Act on the Constitutional Court............... 113, 114, 128, 134, 135, 158, 207, 211, 214, 215, 218, 222, 230, 231, 313, 316, 317, 318, 421

BULGARIA Constitutional Court Act....................................................................... 112, 133, 140, 172, 176

CYPRUS Administration of Justice (Miscellaneous Provisions) Law no 33/64...................................95

CZECH REPUBLIC Act on the Constitutional Court........................... 108, 114, 146, 161, 170, 174, 177, 181, 207, 211, 220, 221, 222, 313, 317, 318, 319, 320 Law of 9 March 1920 no 162/1920 Coll..................................................................................69 Constitutional Act no 143/1968 on the Czechoslovak Federation........................................70 Constitutional Act no 91/1991 on the Constitutional Court of the Czech and Slovak Federative Republic)............................................................................................................70 Law detailing the organisation and procedures of the constitutional court of 26 March 1991......................................................................................................................70 Constitutional Act no 4/1993 Sb on measures connected with the dissolution of the Czech and Slovak Federal Republic............................................................................235 Constitutional Act no 29/1993 on certain additional measures connected with the dissolution of the Czech and Slovak Federal Republic....................................................235 Constitutional Act no 347/1997 Sb on the creation of higher territorial self-governing units....................................................................................................................................235

xl TABLE OF STATUTES

Constitutional Act no 69/1998 Sb on the shortening of the electoral term of the assembly of deputies..........................................................................................................235 Constitutional Act no 110/1998 on the security of the Czech Republic.............................235 Constitutional Act no 395/2001............................................................................................236 Constitutional Act no 515/2002 Sb on the referendum on the Czech Republic’s accession to the European Union......................................................................................235 Constitutional Act 195/2009 Sb on shortening the fifth term of office of the chamber of deputies..........................................................................................................235

ESTONIA Constitutional Review Court Procedure Act...............................22, 36, 96, 100, 112, 142, 336 Legal Chancellor Act..........................................................................................................21, 22

FINLAND Act on Finnish Membership of the European Union 1540/1994..........................................28 HE (Government Bill) 1/1998....................................................................... 20, 28, 29, 77, 269

FRANCE Act no 50-205 of 11 February 1950 pertaining to collective labour agreements and procedures for settling collective labour disputes............................................................136 Ordinance no 58-1067 on the Constitutional Council (as amended)............................................... 136, 137, 138, 164, 171, 182, 208, 221, 222, 421 Decree 59-1292 on the Conseil constitutionnel.....................................................................222 Décision Règlement référendum du 5 octobre 1988, Rec 278.............................................182 Constitutional Act 99-569 of 8 July 1999................................................................................24 Loi constitutionnelle no 2003-276 of 28 March 2002, relative à l’organisation décentralisée de la République..........................................................................................360 Constitutional Act 2008-724 of 23 July 2008 concerning the modernisation of the institutions of the Fifth Republic........................................................................42, 136, 165 Institutional Act No 2009-1523.............................................................................................136 Decree 2011-213 of 8 March 2001 implementing Act 62-1292 of 6 November 1962 relating to the election of the president of the republic by universal suffrage...............171

GERMANY Criminal Code in the version of the Fifth Statute to Reform the Criminal Code of 18 June 1974.......................................................................................................................338 Federal Electoral Law.............................................................................................................177 Judiciary Act...........................................................................................................................214

TABLE OF STATUTES xli

Law on the Bundesverfassungsgericht...................... 65, 116, 143, 144, 145, 157, 166, 167, 169, 173, 176, 177, 206, 210, 214, 219, 220, 221, 222, 309, 312, 317, 323, 363, 376, 379, 383, 391 Political Parties Act........................................................................................................176, 177

HUNGARY Act XXXI of 1989 on the amendment of the Constitution...................................................73 Act XXXII of 1989 on the Constitutional Court......................... 104, 117, 118, 128, 130, 133, 141, 148, 149, 211, 213, 219, 220, 221, 252 Act on the Right to Prosecute Serious Criminal Offences Committed between 21 December 1944 and 2 May 1990 that had not been Prosecuted for Political Reasons................................................................................................................343 Act CLI of 2011 on the Constitutional Court............ 2, 75, 103, 117, 118, 132, 141, 142, 149, 150, 152, 156, 167, 174, 184, 205, 207, 211, 213, 219, 220, 221, 222, 254, 309, 312, 313, 317, 318, 319, 332, 385, 396, 469

ITALY Constitutional law no 1 of 9 February 1948...........................................................................66 Constitutional law no 1 of 11 March 1953.............................................................................66 Law no 87 of 11 March 1953...................................................................................................66 Law no 81 of 25 March 1993.................................................................................................360 Law no 43 of 23 February 1995.............................................................................................360 Law no 277 of 4 August 1993................................................................................................360 Constitutional law no 1 of 22 November 1999...............................................................67, 121 Constitutional law no 2 of 31 January 2001...................................................................67, 121 Constitutional law no 3 of 18 October 2001..........................................................67, 121, 361 Constitutional law no 1/2003................................................................................................362

LATVIA Constitutional Court Law..............................................................................................112, 133

LITHUANIA Law on the Constitutional Court..........................................................................112, 172, 175

THE NETHERLANDS Council of State Act....................................................................................... 14, 15, 17, 20, 264 Statute of the Kingdom of the Netherlands............................................................................14

xlii TABLE OF STATUTES

1848 Constitution, Art 115(2).................................................................................................79 Staatsregeling of Sint Maarten, Art 127..................................................................................82 Landsverordening Constitutioneel Hof, Afkondigingsblad van Sint Maarten, 2010 GT no 29......................................................................................................................82 Staatsregeling of Sint Maarten, Art 119..................................................................................82 Staatsregeling van Curaçao, Art 96..........................................................................................82

POLAND Dziennik Ustaw (journal of laws), no 4, item no 8 of 1980...................................................71 Act on the supreme court......................................................................................................212 Constitutional Tribunal Act................... 107, 118, 150, 151, 167, 178, 179, 207, 211, 212, 219, 220, 221, 222, 260, 261, 262, 313, 319, 333, 334, 354 Political Parties Act................................................................................................................179

PORTUGAL Law of the Constitutional Court...................................................................................172, 176

SLOVENIA Constitutional Court Act....................................................................... 112, 133, 142, 172, 176

SLOVAKIA Act on the Organisation of the Constitutional Court of the Slovak Republic, on the Proceedings before the Constitutional Court and the status of its Judges............................................................................................ 112, 140, 142,172,182, 425

SPAIN Organic Law 2/1979 on the Constitutional Tribunal...........106, 107, 119, 147, 148, 158, 159, 165, 181, 209, 211, 213, 219, 220, 221, 222, 262, 263, 309, 312, 317, 318, 320, 321, 388 Organic Law 6/1985 on the judiciary............................................................ 165, 209, 309, 383 Organic Law 4/1985 of 7 June 1985......................................................................................107 Organic Law 6/2002 on political parties of 27 June 2002....................................................179

SWEDEN Instrument of Government.........................................................................................12, 78, 94

TABLE OF STATUTES xliii

UNITED KINGDOM 1689 Bill of Rights, Art 9..........................................................................................................83 Human Rights Act 1998............................................................................. 83, 86, 266, 348, 370 Scotland Act 1998............................................................................................. 85, 156, 267, 370 Northern Ireland Act 1998......................................................................................85, 156, 267 Constitutional Reform Act 2005...............................................................................85, 86, 156 Government of Wales Act 2006.......................................................................................85, 156

Introduction In Marbury v Madison, one of the most famous decisions handed down by the United States Supreme Court, Chief Justice Marshall characterised the US constitution as the ‘fundamental and paramount law of the nation’.1 Today, his description is accepted as a truism, not just in the United States but also in the European legal tradition.2 Constitutions are considered the supreme ‘law of the land’ because they enable government, set out its powers, duties and responsibilities and provide for limitations, typically in the form of a catalogue of individual rights. Further, constitutions have symbolic or political value. They can be seen as ‘bearers of particular conceptions of national identity’.3 ‘A constitution is a nation’s autobiography,’ said Wolfgang Hoffmann-Rien, a former judge of the German Bundesverfassungsgericht.4 An important challenge is to ensure that constitutions, and their values and principles, are respected in practice and protected against infringements, and this in particular entails that acts and omissions of State organs may be reviewed for their constitutional conformity. That is the topic of the present book, which sets out how the European Union (EU) and a representative selection of its Member States go about upholding their constitutions and how their systems of constitutional review operate in practice. Deciding on the institutional arrangements to enforce the supremacy of a constitution is often regarded as a veritable evergreen of constitutional law. Questions pertaining to the meaning that should be given to (open) constitutional provisions or how constitutionality controls should be designed and function have an enduring appeal, however, and continue to engage policy-makers, academics and society at large. Some examples may be helpful to illustrate this point. In 2001, the UK House of Lords set up a Constitution Committee to enable it to better discharge its role as a ‘constitutional long-stop’ and prevent changes being made to the British constitution ‘without full and open debate and an awareness of the consequences’.5 In 2008, France amended its constitution to allow judges to assess the constitutionality of statutes that have been promulgated. This dramatically modified the regime that had been in place for the previous 40 years, during which time laws could only be checked for their constitutional conformity prior to promulgation. A year earlier, the German federal constitutional court interpreted the Basic Law to preclude the execution of William Marbury v James Madison, Secretary of State of the United States 5 US 137 (1803). This has not always been the case. L Garlicki, ‘Constitutional Courts versus Supreme Courts’ (2007) 5 International Journal of Constitutional Law 44, 47 points out that notably before World War II, constitutions were regarded predominantly as political instruments; and W Sadurski, ‘Constitutional Review in Europe and the United States: Influences, Paradoxes, and Convergence’ in M Fantoni and L Morlino (eds), Comparing Democracies (Kent, Kent State University, forthcoming) argues that it was under the influence of American constitutional thinking that European countries and scholarship accepted constitutions as legal instruments. 3 V Jackson, Constitutional Engagement in a Transnational Era (New York, Oxford University Press, 2010) 3. 4 W Hoffmann-Riem, ‘Constitutional Court Judges’ Roundtable: Comparative Constitutionalism in Practice’ (2005) 4 International Journal of Constitutional Law 556, 558. 5 These were the words used in the Report of the Royal Commission on the Reform of the House of Lords (known as the Wakeham Commission), A House for the Future, Cm 4534 (2000), notably para 5.17. 1 2

2 INTRODUCTION

legislation in the social security field jointly by the federation and the Länder6 and, in response, the Basic Law was amended in 2010 to explicitly allow such cooperation.7 Hungary officially acquired a new constitution, known as the Fundamental Law, on 1 January 2012. This new foundational text curbs the powers of its main custodian – the constitutional court – and simultaneously limits the avenues for access to its courtroom.8 It further instructs the constitutional court to interpret the provisions of the Fundamental Law in accordance with the achievements of the historical constitution,9 without however further fleshing out what is meant by the latter notion, and, in so doing, is said to ‘bring with it a certain vagueness into constitutional interpretation’.10 The Netherlands continues to debate a constitutional amendment that would give its judges the power to disregard acts of parliament on constitutional grounds, a possibility that currently only exists as far as sub-statutory legal rules are concerned.11 These are just some of the developments that are featured in this book.

INTRODUCTORY DEFINITIONS: CONSTITUTIONAL INTERPRETATION AND CONSTITUTIONAL REVIEW

Given the topic of the book, it is helpful to set out what is meant by the notions of ‘constitutional interpretation’ and ‘constitutional review’. Constitutional interpretation is understood as the process of constructing, establishing the meaning of and explaining a country’s written constitution (if there is one), other constitutional texts and other (unwritten) norms and principles that are of constitutional quality. Constitutional review in a broad sense refers to the process of assessing whether one’s own behaviour or that of other actors is in line with the constitution and other texts or principles with a constitutional rank or role. Constitutional review in a narrow sense signifies that the actor conducting the assessment of constitutional conformity is empowered to attach consequences to a finding that the acts of other State organs do not comport with the relevant constitutional yardsticks; and is thus legally able to impose its position on a constitutional issue on other State organs. These are technical definitions, and intentionally so. They do not presuppose the identity of the institution, body or actor that has the authority to determine the meaning of constitutional rules and principles or is competent to engage in constitutional review. Further, they do not presuppose the kind of constitutional issue on the table, and it is worth pointing out that constitutional questions come in various shapes and sizes: some BVerfG, 2 BvR 2433/04 (2007). Bundesgesetzblatt Jahrgang 2010, Teil 1 Nr 38 of 26 July 2010, introducing a new Art 91e into the German Basic Law. 8 See eg Venice Commission, Opinion 665/2012 on Act CLI of 2011 on the Constitutional Court of Hungary (CDL-AD(2012)009, Venice, 15–16 June 2012); C Boulanger and O Lembcke, ‘Between Revolution and Constitution: The Roles of the Hungarian Constitutional Court’ in G Tóth (ed), Constitution for a Disunited Nation: On Hungary’s 2011 Fundamental Law (Budapest, CEU Press, 2012). Subsequent amendments to the Fundamental Law – most notably the Fourth Amendment – have further affected the mandate of the constitutional court and its functioning. In particular, the court is no longer able to refer to judgments delivered under the old constitution when deciding new cases brought before it. 9 Hungarian Fundamental Law, Art R(3) and see also the preamble. 10 Venice Commission, Opinion 621/2011 on the New Constitution of Hungary (CDL-AD(2011)016, Venice, 17–18 June 2011) 7. 11 Kamerstukken II, 2001/2002, 28 331, nos 1–3, and most recently Kamerstukken II 32 334, no 5, Verslag van de vaste commissie voor Binnenlandse Zaken en Koninkrijksrelaties. 6 7

BACKGROUND 3

are related to the more substantive constitutional rules and principles (notably the catalogue of fundamental rights and liberties), whereas others concern more procedural or institutional aspects (for instance those related to the allocation of powers and responsibilities among organs of the State); some have strong moral or ethical overtones, while others impact firmly on the functioning of the structures of government and yet others are relatively uncontroversial and inconsequential for the wider constitutional system.

BACKGROUND: THE NEED FOR A PERSPECTIVE COMBINING NATIONAL AND EUROPEAN CONSTITUTIONAL LAW

The book considers the institution of constitutional review both in the context of national constitutional systems and within the context of the European Union legal order.12 There are good reasons for adopting such a broad and integrated approach.13 The European and the national constitutional orders cannot be considered to constitute fully autonomous and closed legal systems. On the contrary, these orders coexist, exhibit a mutual openness14 and are increasingly interdependent or intertwined.15 This means that focusing solely or primarily on either the national or the European level would provide only part of the picture and would not fully reflect today’s constitutional reality. From the perspective of European law, national constitutional rules, principles and values are relevant in various ways. To start with, and importantly, the constitutional framework governing the Union is best conceived of as consisting of constitutional norms developed at the European level, complemented by national constitutional rules and principles (as well as norms deriving from other sources, such at the European Convention on Human Rights or international law).16 There are several instances where the European Treaties and the Court of Justice of 12 The research of which this book is the culmination was conducted in the context of the European and National Constitutional Law (EuNaCon) Project, funded by the European Research Council (grant no 207279) and headed by Professor Monica Claes (Maastricht University, the Netherlands). 13 See also M Claes and M de Visser, ‘Reflections on Comparative Method in European Constitutional Law’ in M Adams and J Bomhoff (eds), Practice and Theory in Comparative Law (Cambridge, Cambridge University Press, 2012). 14 Consider, for instance, the ‘Europe-clauses’ that can today be found in many national constitutions, such as the French constitution, Art 88-1 (‘The Republic shall participate in the European Union constituted by States which have freely chosen to exercise some of their powers in common by virtue of the Treaty on European Union and of the Treaty on the Functioning of the European Union, as they result from the Treaty signed in Lisbon on 13 December 2007’), and the German Basic Law, Art 23 (para 1 of which states that ‘With a view to establishing a united Europe, the Federal Republic of Germany shall participate in the development of the European Union that is committed to democracy, social, and federal principles, to the rule of law, and to the principle of subsidiarity, and that guarantees a level of protection of basic rights essentially comparable to that afforded by this Basic Law’). At the same time, national constitutional provisions and principles may also pose limits to the ongoing process of European integration. 15 There are, however, different degrees of intertwinement. See eg M Claes, Constitutionalising Europe: The Making of European Constitutional Law (Oxford, Hart Publishing, 2014); J Wouters, ‘National Constitutions and the European Union’ (2000) 27 Legal Issues of Economic Integration 25. 16 In the literature, this has been expressed through the use of notions such as the composite European constitution, multi-level constitutionalism or intertwined constitutionalism: L Besselink, A Composite European Constitution (Groningen, Europa Law Publishing, 2007); I Pernice and F Mayer, ‘De la constitution composée de l’europe’ (2000) 36 Revue trimestrielle de droit européen 623; I Pernice, ‘Multilevel Constitutionalism in the European Union’ (2002) 27 EL Rev 511; J Ziller, ‘National Constitutional Concepts in the New Constitution for Europe’ (2005) 1 European Constitutional Law Review 247 and 452. The idea that it is necessary to adopt a perspective that embraces both European (constitutional) rules and principles and national constitutional law also underlies the various theories on constitutional pluralism that have gained prominence in recent years to conceive

4 INTRODUCTION

the European Union refer explicitly to national constitutional law, thereby creating bridges between the two legal orders. A good example is Article 6(3) TEU, which provides that fundamental rights ‘as they result from the constitutional traditions common to the Member States’ constitute general principles of Union law, and thereby conceives of national constitutional law as a source of Union law.17 Relatedly, the treaties have taken on some concepts whose origins are found in national constitutional law, such as the rule of law, democracy and fundamental rights.18 We see this clearly in Article 2 TEU, which proclaims that the Union is founded on these and other values that are ‘common to the Member States’. As such, it is imperative to engage in comparative research into the legal systems of the countries within the Union: ‘Die Verfassungsvergleichung ist ein Gebot des Art. [2 TEU]’, as the foreword to one handbook puts it.19 Yet, also in the absence of explicit references, national constitutional law has a role to play in the context of European law. The ongoing process of the constitutionalisation of the Union20 develops with reference to and reliance on many of the same notions and principles that form the basis of national constitutional law and have currency in debating constitutional issues at the national level. This is readily understandable: the nation-states are the pedigree of constitutional concepts and principles and still provide the richest and most valuable source of experience and inspiration when it comes to the meaning and application of such concepts and principles.21 Similarly, the opinions and expectations held by participants in the discourse on the constitutionalisation of Europe and ideas as to the direction this process ought to take, are often informed by particular national experiences and arrangements.22 By looking at the way national constitutional systems work, these views and expectations can be better understood, and this also makes it easier to appreciate their merits in the particular context of the interplay between the two legal orders. For an overview of the approaches of the main protagonists of constitutional pluralism, see M Avbelj and J Komárek (eds), Constitutional Pluralism in the European Union and Beyond (Oxford, Hart Publishing, 2012). 17 This codifies the European Court’s case law, notably Case 11/70 Internationale Handelsgesellschaft v Einfuhr und Vorratstelle für Getreide und Futtermittel [1970] ECR 1125 and Case 4/73 J Nold, Kohlen- und Baustoffgroßhandlung v Commission [1974] ECR 491; see also the Charter of Fundamental Rights of the European Union [2012] OJ C326/391, Art 52(4). Other provisions that create a link between EU (constitutional) law and national constitutional law are Art 48 TEU, providing that the entry into force of new European Treaties is dependent on ratification by all the Member States in accordance with their constitutional requirements; and Art 10(2) TEU, which deals with the EU’s democratic accountability and assumes that, in addition to the role played by the European Parliament in this respect, national governments are accountable for their conduct within the European Council and the Council either to their national Parliaments or to their citizens. A provision that creates a bridge, but does not so much presuppose dependence or complementarity between EU and national constitutional law is Art 4(2) TEU, directing the Union to respect the national identities of the Member States ‘inherent in their fundamental structures, political and constitutional’. 18 On the migration of constitutional notions and ideals from the national to the European level see N Walker, ‘The Migration of Constitutional Ideas and the Migration of the Constitutional Idea: The Case of the EU’ in S Choudhry (ed), The Migration of Constitutional Ideas (Cambridge, Cambridge University Press, 2006). This does not always mean that these notions or concepts are fleshed out at European level in the same way that they are given effect within the Member States, see eg L Pech, ‘“A Union Founded on the Rule of Law”: Meaning and Reality of the Rule of Law as a Constitutional Principle of EU Law’ (2010) 6 European Constitutional Law Review 359, who compares the principle of the ‘rule of law’ within the context of the Union and in three Member States. 19 A von Bogdandy, P Cruz Villalón and P Huber (eds), Handbuch Ius Publicum Europaeum – Band I: Grundlagen und Grundzüge staatlichen Verfassungsrechts (Heidelberg, CF Müller, 2007) [translation: ‘The comparison of constitutions is a requirement under [Art 2 TEU]’]. 20 See famously JHH Weiler, ‘The Transformation of Europe’ (1991) 100 Yale Law Journal 2403; E Stein, ‘Lawyers, Judges and the Making of a Transnational Constitution’ (1981) 75 American Journal of International Law 1. 21 N Walker, ‘Beyond Boundary Disputes and the Basic Grids: Mapping the Global Disorder of Normative Orders’ (2008) 6 International Journal of Constitutional Law 373. 22 See eg Ziller, ‘National Constitutional Concepts in the New Constitution for Europe’ (n 16).

OBJECTIVES 5

of the Union. National constitutional traditions and values can thus be said to provide the lens through which the constitutional dimension of the European Union is evaluated; and the constitutional orders of the Member States may further be considered as valuable laboratories that provide inspiration for (thinking about) the further development of the Union’s constitutional framework. Changing perspective, it is clear that membership of the EU and EU law exert an impact on domestic constitutional law. This is the case also for the institution of constitutional review. The guardians entrusted with the function of upholding the national constitution may make use of European rules and principles in deciding on the constitutionality of statutes or other legal acts, whereby the former may serve as self-standing grounds for review or provide inspiration in establishing the meaning of the national constitutional standards for review. Also, the preferred choice of most (but not all) Member States is to have a system of constitutional review whereby separate constitutional courts enjoy pride of place, and decisions handed down by the Court of Justice of the European Union have had significant ramifications for the position of those judicial bodies within the national legal order and their relationship with other domestic courts. More generally, the relationship and interfaces between national constitutional law and European law change over time and across legal systems, and one should ideally be knowledgeable about the constitutional state of play in both sets of legal orders to truly understand and appreciate new developments and dynamics.

OBJECTIVES

This book presents and explains the institution of constitutional review in a European context, and does so from a comparative perspective. It explores who has been given responsibility for protecting the supremacy and integrity of constitutional rules and principles in a selection of Member States and the EU itself and why, and how the task of upholding the constitution is carried out. In this vein, the book also draws attention to various causes for tension (or even conflict) that may arise during the exercise of constitutional review, notably when the decision is made to have separate constitutional courts as ultimate guardians of constitutional rules and values, and considers how the different constitutional systems seek to cope with these. The thrust of the book is that upholding the constitution is a shared responsibility of various institutions, not just of courts, and that not all countries prefer to designate judges as chiefly responsible for guarding constitutional rules and principles against infringements. It is important not to elide constitutional review with judicial enforcement of the constitution. While the president of the Austrian constitutional court has spoken about the ‘landslide victory of constitutional justice in Europe’,23 the proliferation of courts with constitutional jurisdiction on the European continent is a relatively recent phenomenon. Notably in central and eastern European countries, many separate constitutional courts have been in existence for some three decades only. Notwithstanding a growing tendency to see the courts as the natural choice as guardians of the constitution, it is thus worth 23 G Holzinger, ‘Welcome – XVIth Congress of the Conference of European Constitutional Courts’ (Austrian constitutional court website, www.vfgh.gv.at/cms/vfgh-kongress/en/index.html).

6 INTRODUCTION

remembering that this has not always been the case and is not the only or preferred option on the menu. Also, and accepting today’s constitutional reality that courts are often given final authority on issues of constitutional interpretation and review, these institutions do not operate in a vacuum, but interact with other players, both within and outside the confines of the State. Further, ‘the final word’ is hardly ever absolutely and irrevocably final: the constitutional question can usually be put back on the table.24 Against this background, the book devotes due attention to the role and functioning of constitutional courts in view of their prominence within the countries that belong to the EU, yet it adopts a critical and holistic approach to these institutions and thus goes beyond a study of only constitutional courts to provide a realistic perception of how constitutional review is designed and exercised within Europe. It is also important to be clear about what this book does not seek to do. Its aim is not to put forward best practices as regards the design and functioning of constitutional review either at a national level or within the Union legal order. Rather, and while identifying pertinent normative questions or concerns throughout the various chapters as and when appropriate, the book provides the reader with a set of materials and arguments that can be relied upon in thinking about the institution of constitutional review.

METHOD

To gain a comprehensive understanding of the organisation and functioning of constitutional review within the European Union, it would be necessary to study all of the Union’s 28 Member States. Resource limitations and linguistic difficulties, however, make this ideal unattainable for a single researcher. The analysis in this book accordingly covers fewer countries. For most issues, the following 11 countries that belong to the EU are studied (in alphabetical order): Belgium, the Czech Republic, Germany, Finland, France, Hungary, Italy, the Netherlands, Poland, Spain, and the United Kingdom.25 This selection is large enough to make meaningful comparisons and tease out similarities and differences in the way that countries go about ensuring the integrity and supremacy of their constitutional rules and principles. It is submitted that the selection also gives a sufficiently representative view of the various issues. The majority of the selected countries rely on separate constitutional courts to uphold the constitution and protect its integrity, which reflects the dominant trend in Europe to establish such institutions and confer upon them the power to ultimately decide constitutional issues. The German and Italian constitutional courts are comparatively old (set up in 1949 and 1947 respectively), and have built a sizeable and quite sophisticated body of case law over the years. Both courts have been motivated to 24 This may be because the legislature passes another statute or legal act pertaining to the same issue, or because the constitutional court fails to provide closure in a specific case. For an example of a decision that is not finally dispositive of the constitutional issue, see eg BVerfG 62, 1 (1983) Parliamentary Dissolution Case I, where the German federal constitutional court held that concretising the relevant provision of the German Basic Law was ‘a function not only of the Federal Constitutional Court; this duty is also vested in other supreme constitutional organs [such as the federal president or the German Parliament]’. 25 In addition, various aspects of Estonia’s institutional arrangements for upholding the constitution are featured in ch 1; and ch 3 regularly mentions, either in footnotes or in the main text, the powers that have been attributed to courts with constitutional jurisdiction in the other countries that are members of the European Union.

METHOD 7

craft a wide range of techniques to manage its relations with the legislature and the other national judges that are of more general interest and may be a valuable source of inspiration for their counterparts in other jurisdictions. Moreover, the German Federal constitutional court is particularly assertive in the way in which it performs the functions assigned to it and is often seen as a model for other countries to emulate or as characteristic of the European approach to constitutional justice. The Italian and Spanish constitutional courts operate in States where the devolution of powers and authority from the central level to regionalised entities is ongoing, which creates its own constitutional dynamic and may entail that courts become embroiled in sensitive or politically contentious issues. The Czech Republic, Hungary and Poland are all post-Communist countries and relatively young democracies, whose constitutional courts have established themselves as important players in their national constitutional sphere, not least due to the rather wide array of powers that has been conferred on them and the relative ease with which their jurisdiction can be invoked. At the same time, these courts operate in a politically volatile region and their relationship with the other branches of government has not been free of tensions or open clashes. In addition, and as mentioned earlier, Hungary has recently developed a new constitution and has recast its constitutional court – a development that has been critically evaluated and has led to concerns about possible ‘backsliding’ and questions as to how to ensure that countries within the EU remain respectful of core constitutional values and ideas. France and Belgium initially adopted a distinct approach, in the sense that they established, respectively, a constitutional council (1958) and a court of arbitration (1980) for functionalist reasons and limited their mandates to guaranteeing respect for the constitutional separation of powers scheme only. As a result of constitutional and legislative amendments as well as a creative approach to the provisions that can be used as grounds for review, both institutions have since evolved into guardians of fundamental rights and can today be considered fully-fledged members of the European family of constitutional courts. The sample also encompasses countries that do not fit the general pattern of having a strong form of constitutional adjudication. Finland chose to allow all its courts to enforce the constitution against the legislature when it adopted a new constitution in 2000, but in practice Parliament is still considered to be chiefly responsible for ensuring respect for the constitution. Finally, the Netherlands and the United Kingdom have been included because these countries have so far refrained from granting their courts the power to disregard or strike down laws that breach the constitution. Like Finland, these States instead place reliance on non-partisan bodies that are independent of the government to ensure that legislation does not fall foul of constitutional provisions and values. Lastly, and geographically speaking, the sample includes countries from western Europe, southern Europe, central and eastern Europe and Scandinavia. The experience and engagement with the European legal order has not been the same for each of the countries: five of the States were founding members of the original European Communities in the 1950s, three joined the European integration project in the late 1960s/early 1970s and yet three other countries acceded in the ‘big bang’ enlargement of the European Union in 2004. The various issues related to the institution of constitutional review have been examined using the functional method of comparative constitutional research. Rather than following the classifications of any particular national legal system or working with country reports, the chapters have been structured with the help of system-neutral themes and ‘real life’ concrete problems and questions. To illustrate, some of the questions that the book

8 INTRODUCTION

addresses are: which public institutions have access to the constitutional courtroom (and can individuals also invoke the court’s jurisdiction?); what are the qualifications that persons must possess to be considered for elevation to the constitutional bench; and what can the legislature do if it disagrees with the way in which the judges have interpreted constitutional rules and principles? By proceeding in this way, the integrity of the different constitutional systems is respected as far as possible, while these systems are at the same time made comparable. This allows similarities and variations to appear more clearly than under a classical comparative law approach. The book makes ample use of primary materials to allow the reader to become acquainted with the core constitutional texts, legislative provisions, official reports published by parliamentary committees or Councils of State, and particularly case law. While English translations of national constitutions and statutes regulating the composition and tasks of constitutional courts are today readily available, this is not always true of the judicial material. Indeed, all of the selected courts publish on their websites at least some of their decisions in a language other than that in which they were originally handed down. When English translations were available, these have been used and, where appropriate, excerpted. Although I acknowledge that the quality of these translations may at times not be flawless, these are documents that the courts themselves decide to share with a wider, global audience. Not every decision that is relied upon to illuminate the issues canvassed in this book was available in English, however. I have benefited from works that include translated judgments of some of the courts examined in this book – notably Kommers and Miller’s The Constitutional Jurisprudence of the Federal Republic of Germany26 and Sólyom and Brunner’s Constitutional Judiciary in a New Democracy: The Hungarian Constitutional Court27 – but on several occasions I have had to translate the foreign materials myself. The particular sources that have been used for the English excerpts that appear in the various chapters are indicated in the accompanying footnotes. Since this book focuses on constitutional issues, due attention must be paid to local perceptions of these issues by local constitutional actors. In a related vein, one must contend with the fact that constitutional law is embedded in, and conditioned by, a wider context that is made up of historical, political, economic and sociological conditions, which must be appreciated as far as possible.28 I have endeavoured to present the relevant primary materials within their proper national constitutional setting by studying writings by scholars with particular expertise in a given country’s system and by engaging with national experts from most of the Member States examined in this book. Finally, the various chapters do not always cover every one of the 11 chosen States. Quite obviously, if a country does not have Council of State or if a court does not rely on the doctrine of ‘living law’, for example, there is simply nothing to say, other than to note their absence. Yet, even for countries that do share a specific actor, procedure or judicial decision-making technique, the book – and notably chapters one, six and seven thereof – regularly limits the discussion to a couple of Member States to illustrate the salient points. 26 D Kommers and R Miller, The Constitutional Jurisprudence of the Federal Republic of Germany, 3rd rev edn (Durham, NC, Duke University Press, 2012). 27 L Sólyom and G Brunner, Constitutional Judiciary in a New Democracy: The Hungarian Constitutional Court (Ann Arbor, University of Michigan Press, 2000). 28 KL Scheppele speaks of ‘constitutional ethnography’ in this regard, which she defines as ‘the contextually detailed, empirical study of particular constitutional systems, along with their histories, politics, cultural meanings and social supports’: ‘Constitutional Ethnography: An Introduction’ (2004) 38 Law & Society Review 389.

TERMINOLOGY 9

I believe that little is gained by describing sequentially some eight or ten countries that have a virtually identical system or way of going about the exercise of constitutional review. On the contrary, much may be lost, because such an approach may unduly diminish interest in what is otherwise an exciting subject. Nevertheless, to allow the reader to obtain an overview of the state of constitutional law in each of the Member States, other countries (besides those discussed in detail) that have a similar or comparative institution or approach will be mentioned in the introduction to the relevant section.

TERMINOLOGY

The book uses the original names of the principal constitutional custodians in the chosen jurisdictions: Bundesverfassungsgericht, Conseil constitutionnel, Tribunal Constitucional, Ústavní Soud, Perustuslakivaliokunta etc. This approach allows readers familiar with the relevant constitutional system to recognise immediately which institution is meant, while the inclusion of a national indicator – the Italian Corte costituzionale, the Polish Trybunał Konstytucyjny – allows other readers to pinpoint the country in which a given body performs its task of guaranteeing the supremacy and integrity of constitutional rules. Other words and concepts have been translated, but are also mentioned in the original language when they are first introduced.

STRUCTURE

Leaving aside the introduction, this book comprises seven chapters, each of varying length. Chapter 1 looks at the role of Councils of State, chancellors of justice, Parliaments, heads of state and the people in establishing the meaning of constitutional provisions and ensuring the supremacy of constitutional rules and principles. It will become clear that, in countries that have carved out a large or decisive role for the courts in this regard, these non-judicial actors also devote part of their time and energy to upholding the constitution. In fact, they may even have the last word on a given constitutional issue, because the courts have no jurisdiction to take cognisance of the matter or their views have not been solicited by those in a position to do so. Although all organs of the State owe allegiance to the constitution, many European countries have chosen to entrust courts with the function of protecting constitutional rules and principles from encroachments. Chapter 2 offers an historical narrative of the reasons why draftsmen have been motivated to introduce some form of constitutional adjudication. Three rationales are identified: the functional need for an umpire to preserve a new allocation of State powers and adjudicate jurisdictional disputes; normative concerns related to democratisation processes and rights thinking; and external pressures stemming from being a signatory State to the European Convention on Human Rights and belonging to the European Union. This chapter also considers why the United Kingdom and the Netherlands have so far refrained from jumping on the proverbial bandwagon. Lastly, it charts the emergence of some form of judicial constitutional review at the European level, covering both the Court of Justice of the European Union and the European Court of Human Rights.

10 INTRODUCTION

Chapters 3 and 4 are devoted to an examination of the core procedural and institutional features of the various constitutional courts of the majority of countries within the EU. Chapter 3 explains what these courts actually do, and how, and by whom, their jurisdiction can be invoked. The discussion is anchored by four functions that may be entrusted to constitutional courts, namely: keeping the legislature in check; protecting the fundamental rights of individuals in specific cases; resolving institutional disputes between different organs or levels of State; and ensuring the integrity of political office and related processes. Chapter 4 takes stock of various issues pertaining to the composition of constitutional courts, including the rules governing the hiring and firing of judges and favoured recruitment grounds of new members bearing in mind the eligibility criteria that candidates must satisfy. Both chapters close with some reflections on how the Court of Justice fares in light of the national comparative experience. Chapter 5 and 6 focus on what happens when constitutional guardians are asked to assess the constitutionality of a piece of legislation, or a bill. Chapter 5 focuses on identifying the yardsticks or standards that are used to measure such legal norms against and decide on their permissibility. It is readily apparent that a country’s fundamental document with the title ‘constitution’ (provided that such a text exists) will be the first and main port of call. There are however further questions that must be addressed. Can all parts and clauses of the constitution serve as grounds for review, including the preamble? What other sources of law, if any, are further considered ‘constitutional’ and accepted as providing standards for assessing the constitutionality of legal acts? And, more specifically, what role (if any) is envisaged for norms of European and international law in this regard? The bulk of this chapter is devoted to an exploration of how these questions are answered in the selected countries, while the penultimate section looks at the approach adopted within the European legal system by the Court of Justice. Chapter 6 explores several strategies and techniques that constitutional courts may use to regulate their relationship with the legislature and provide suitable relief given the nature of the constitutional defects that they have uncovered when checking the validity of legal rules. Different from the previous chapters, the European level and its Court of Justice are not discussed in the concluding sections, but instead are integrated in the national comparative analysis. The final chapter addresses the engagement of constitutional courts with their wider envir onment from a broad systemic perspective. It begins by studying the interplay between these courts and the legislature, focusing more specifically on how the latter can respond to judicial interpretation of constitutional rules and principles with which it disagrees. Next, the relations between constitutional courts and the regular judiciary are dealt with, so that the reader may understand some of the factors responsible for producing tensions or even open conflicts between these two arms of the judicial branch in several countries over the course of the years. Chapter 7 also ventures beyond the domestic sphere. It considers the role of the Conference of European Constitutional Courts and the Venice Commission in fostering contacts among constitutional courts in different countries and offers a critical appraisal of this move to cross-border judicial cooperation. This chapter concludes with two sections dealing with the interplay between national constitutional courts and, respectively, the Court of Justice and the European Court of Human Rights. These cover the avenues that allow for judicial contact, the content of such interactions and the impact of the case law of the Court of Justice on the position of constitutional courts within the national legal order. This book is up to date as at 1 April 2013.

Chapter 1 The Role of Non-Judicial Actors in Upholding the Constitution I. INTRODUCTION

In Europe, the interpretation and enforcement of a given country’s constitution is not the exclusive preserve of any single institution. Rather, upholding the national constitution is mostly considered, from both an empirical and a legal perspective, to be the shared responsibility of a variety of actors. These may include the legislature, the courts, the executive, special State bodies, and the people. At the same time, there are important differences in the scope and degree of responsibility to protect and ensure observance of the constitution among these actors. Although it can generally be said that all State organs owe allegiance to the constitution and are under a duty to comply with its rules, principles and values, each legal system commonly endows one (or sometimes a few) actor(s) with a special mission or mandate to uphold and protect the constitution. Put differently, there is normally a central guardian of the national constitution, who has ultimate authority to decide on the meaning of its provisions and principles and who is principally responsible for enforcing the constitution against the other organs of the State. In many of the EU’s Member States, there is a constitutional preference to entrust this task to the judiciary, in particular to separate constitutional courts located outside the ordinary judicial hierarchy. A fair portion of this book is accordingly dedicated to an examination of the raison d’être, jurisdiction and composition of such constitutional courts. At the same time, it is important not to fall foul of an unhealthy emphasis on courts as opposed to other actors that (can) have a part to play in upholding the constitution and deciding on the meaning of this fundamental text and the principles and values laid down therein. This is so for at least two reasons. Not all European countries have adopted a similar approach, and several of them rely mainly on parliamentary or advisory bodies for the protection of the constitution, in line with the traditional ideology of parliamentary sovereignty. And, even in those countries that do place primary institutional responsibility for interpreting and enforcing the constitution on the courts, these courts do not operate in a vacuum, but are influenced by, aware of, and engage with their wider political and social environment. The aim of this chapter is therefore to provide the reader with the awareness that processes of constitutional interpretation and protecting the constitution against infringements are multi-actor endeavours. More specifically, this chapter canvasses the role of several non-judicial actors in this regard, asking how they can participate in upholding the constitution and what their precise involvement consists of. Section II explores the

12 THE ROLE OF NON-JUDICIAL ACTORS

contribution made by Councils of State and chancellors of justice. These institutions are independent of the government and, amongst other things, are tasked to provide it and Parliament with advice on the constitutionality of draft legislation. Section III discusses how Parliament can go about upholding the constitution in the course of its activities, and devotes considerable attention to the special parliamentary committees that exist in Finland and the United Kingdom which scrutinise bills for constitutionality. Section IV considers heads of state and in particular their ability to refuse to sign a new piece of legislation on the ground that it contravenes the constitution. Section V contemplates the role of the people and explains how public discourse and public opinion, the media and academia can impact on the meaning given to constitutional provisions and principles by bodies such as parliaments, constitution-makers and constitutional courts. Section VI offers some concluding remarks. Before proceeding, two preliminary points must be made. First, the emphasis in what follows is on who, besides the courts, is responsible for upholding the constitution and for constitutional interpretation. The equally important question of the precise yardsticks that are used in the different national systems by both judicial and non-judicial actors to decide on the constitutionality or otherwise of their own actions and those of others will be addressed in chapter five. For now, reference will simply be made to the constitution or to constitutional rules, principles and values. Second, let us recall two basic definitions to ensure conceptual clarity in the remainder of this chapter. Constitutional interpretation is taken to denote the construction and explanation of the written constitution and other constitutional texts and other (unwritten) norms and principles that have been attributed constitutional quality. Constitutional review sensu lato refers to assessing whether one’s own behaviour or that of other actors is in line with the constitution. Constitutional review sensu stricto signifies that the actor conducting the assessment of constitutional conformity is empowered to attach consequences to a finding that the acts of other State organs are in breach of the constitution and is thus legally able to impose its position on a constitutional issue on other State organs.

II. COUNCILS OF STATE AND CHANCELLORS OF JUSTICE

This section inquires into the role of Councils of State (section A) and chancellors of justice (section B) in upholding the constitution and deciding what the constitution means. Councils of State and chancellors of justice are non-partisan bodies, and institutionally separate from Parliament and the government. Their functions include providing advice on, and monitoring, the constitutionality of bills and other draft legal norms. They usually do so in the early stages of the legislative process.1 As such, Councils of State and chancel-

1 Some countries also contemplate an advisory role for the courts during the course of the legislative process. In Finland, for instance, the president can consult the supreme court or the supreme administrative court before deciding whether to confirm an act of parliament, and the two courts may reflect on the constitutionality of the act in their advice (Finnish constitution, s 77). This competence is seldom, used however. A similar possibility exists in Sweden, where consultation with a Law Council, composed of (former) justices of the two supreme courts, is mandatory for certain bills (Instrument of Government, the main Swedish constitutional text, Arts 20–22).

COUNCILS OF STATE AND CHANCELLORS OF JUSTICE 13

lors of justice are among the State organs that may be asked to pronounce on constitutional issues first.2

A. Councils of State Modern-day Councils of State are of considerable vintage. Their roots can be traced back to emperor Charles V, who established such Councils as advisory bodies to assist his governors with the administration of the low countries (present-day Belgium and the Netherlands) and Spain in the sixteenth century. In a development of great significance for the present-day design of such bodies, Napoleon Bonaparte established a Conseil d’État in France in 1799 and charged this institution with a dual task: its members provided expert advice on the drafting of major new legislative codes and were further responsible for resolving administrative disputes. Similar advisory bodies were introduced in other countries under the influence of the Napoleonic tradition in public administration. Within the countries that are members of the European Union, Councils of State can be found in Belgium,3 France,4 Greece,5 Italy,6 Luxembourg,7 the Netherlands8 and Spain.9 The position of the Council of State vis-à-vis other State organs has evolved considerably over the years and today these bodies are independent of the government. Yet, the combination of functions has endured and continues to be a hallmark of the majority of modern-day councils of state.10 They can, and sometimes must, provide advisory opinions on legislative bills and proposals for other legal norms. In addition, most Councils of State are entrusted with adjudicating the bulk of, if not all, administrative disputes at final instance.11 In view of the purpose of this chapter, the focus in what follows will be on how Councils of State go about upholding the constitution and have occasion to engage in constitutional 2 It is uncontroversial that these days, most proposals for legislation emanate from the government and, as such, the ministry and civil servants charged with preparing the pertinent bill will also have to examine whether the proposed legislation remains within constitutional boundaries and respects fundamental rights and freedoms. J Kokott and M Kaspar, ‘Ensuring Constitutional Efficacy’ in M Rosenfeld and A Sajó (eds), Oxford Handbook of Comparative Constitutional Law (Oxford, Oxford University Press, 2012) 799 speak of ‘governmental self-control’ in this regard and give the example of a German bill proposed by the federal government introducing a ban on smoking that came to a standstill because the competent federal ministry concluded that this matter fell within the competences of the Länder. 3 Belgian constitution, Art 160. 4 The advisory function of the French Council of State is laid down in the French constitution, Arts 37, 38, 39(2) and (4), 74 and 74-1, and its judicial role finds expression in the French constitution, Art 61-1. 5 Greek constitution, Art 95. The non-judicial function of the Greek Council of State seems more limited than that of its counterparts, since it only exercises preliminary control of regulatory decrees to the exclusion of other legal norms. 6 Italian constitution, Arts 100(1) and 103(1). 7 Luxembourg constitution, Art 83bis. 8 Dutch constitution, Arts 73–75. 9 Spanish constitution, Art 107. The Portuguese constitution also provides for the establishment of a Council of State, but the composition and functions of this institution differ considerably from its namesakes in other European jurisdictions (Portuguese constitution, Arts 141–46). 10 The Spanish and Greek Councils of State have only a consultative role and are not involved in providing judicial protection against acts adopted by the administration. 11 Many continental judicial systems have a system of general courts and a system of administrative courts, with the Council of State or supreme administrative court at its apex. In addition, some judicial systems also provide for a special administrative court structure with jurisdiction for certain fields, such as competition law or social security.

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interpretation in the exercise of their consultative (ie non-judicial) function.12 The Dutch and Belgian Councils of State have been chosen as examples in this regard and will be discussed sequentially. The former discharges its mandate in a regime where all courts are explicitly prohibited from annulling acts of parliament on constitutional grounds,13 while the latter – like its counterparts in France, Italy, Luxembourg and Spain – carries out its responsibilities in a legal setting that also incorporates a separate constitutional court, which has the exclusive competence to invalidate legislation that it has declared unconstitutional. i. Dutch Council of State (Raad van State) The Dutch Council of State has a constitutionally guaranteed position as independent advisor to the government and Parliament.14 It must deliver advisory opinions on all legislative bills15 and bills approving international treaties before these are debated in Parliament.16 The Council of State has a range of standard formulations that it uses to express its position on legislative proposals. A broad distinction can be made with respect to the consequences of these formulations. When the Council approves the bill or indicates that it has no major objections and merely recommends some minor amendments to the proposal or the explanatory notes, the bill can go to the next stage of the legislative process. Conversely, when the Council indicates that it has significant or fundamental objections requiring (substantial) revisions or advises the withdrawal of the proposal, the government is required to debate the bill anew within the Council of Ministers before being able to move forward. Regardless of the formulation chosen, the government always has to respond to the advice of the Council of State in the explanatory notes that accompany its bills when these are sent to Parliament for deliberation. As such, the government has to engage with the observations, recommendations and critique expressed by the Council of State, including on the constitutional dimension of legislative proposals, although it is not obliged to heed the advice provided and there are instances where it has persevered with a bill against the Council’s advice.17 The Dutch Council of State also provides the

12 Councils of State may also have occasion to interpret the constitution when adjudicating administrative disputes, although they are prevented from deciding that an act of parliament is unconstitutional; the exception is the Netherlands, which has no system of judicial control of the constitutionality of legislation (Dutch constitution, Art 120): only the constitutional court can declare that such acts do not comport with the constitution and should be invalidated. Councils of State do have the possibility of submitting questions concerning the constitutionality of an act of parliament applicable to the dispute before them to the constitutional court by means of the preliminary reference procedure. This procedure is examined in ch 3, section III-A(ii). 13 Dutch constitution, Art 120. The rationale for the establishment of the Belgian constitutional court and the Dutch ban on judicial constitutional review as far as parliamentary legislation is concerned are discussed in ch 3. 14 Dutch constitution, Art 73(1). For the sake of completeness, it should be noted that there is also a Council of State for the Kingdom of the Netherlands with a limited set of tasks (Statute of the Kingdom of the Netherlands, Art 13). 15 This includes both government bills as well as private members’ bills, following the 1983 and 1989 constitutional revisions. 16 Council of State Act, Arts 17(1)(a), (c) and 18. The Council’s advisory opinions on government bills are initially confidential: upon receipt, the responsible minister adopts a response in the form of an ‘additional report’ and it is only when the bill is submitted to the House of Representatives for debate that the Council’s advice is made public. 17 This has happened, for instance, with the government proposal to reduce the size of the Dutch Parliament, which would require a constitutional amendment. Notwithstanding the Council of State’s advice not to submit the proposal as it stood, the government nevertheless submitted the bill to Parliament in its original form.

COUNCILS OF STATE AND CHANCELLORS OF JUSTICE 15

government with advice on draft general administrative orders prior to their adoption18 as well as on all other matters where the government considers this necessary.19 In addition, the Council of State can provide advice sua sponte on topics which it believes warrant legislative consideration20 and, if so requested, supplies the government and Parliament with information about matters of legislation and public administration.21 The Dutch monarch officially presides over the Council of State,22 and the heir presumptive is legally entitled to a seat on this body from the day of attaining the age of 18.23 In practice, the vice-president is in charge of the running of the Council of State and responsible for the performance of the tasks entrusted to it. Leaving aside support staff, the Council of State further consists of a maximum of 10 members, state councillors and extraordinary councillors.24 The vice-president, members and state councillors are in principle appointed for life by royal decree, subject to an age limit of 70.25 Prospective state councillors must have experience or expertise in matters of public administration, legislation or adjudication and usually come from the civil service, the government, the judiciary or academia.26 The Council of State has a bifurcated structure, comprising an administrative jurisdiction division and an advisory division. As its name indicates, the latter is responsible for the performance of the advisory duties entrusted to the Council of State. The division decides on its advisory opinions by majority vote and councillors who find themselves in the minority may adopt a separate opinion.27 In terms of substance, the ex ante legislative assessment by the Council of State is comprehensive: the advisory division examines and comments upon the suitability, feasibility and desirability of bills, their technical quality and their compatibility with higher legal norms, including the constitution, international treaties, EU law and unwritten principles. It is interesting to note that the Council of State adopts a broad approach to the use of the constitution as a reference standard: the constitution not only informs its examination of the constitutionality of legislative proposals, but is also sometimes relied on as regards its review of the policy aspects of a bill.28 More generally, and by way of illustration, in recent years the Council of State has issued advisory opinions in which it has specified under which conditions it is con stitutionally permissible to hold a consultative referendum in approving international

Council of State Act, Art 17(1)(b). ibid, Art 17(2). 20 ibid, Art 21. 21 ibid, Art 21a. This happened for instance in relation to the supervision of mergers in the field of health care. 22 Dutch constitution, Art 74(1); Council of State Act, Art 1(1). 23 Dutch constitution, Art 74(1); Council of State Act, Art 1(2). Other members of the royal family can be granted a seat on the council upon attaining the age of majority (Council of State Act, Art 1(3)). Although those members of the royal family who hold a seat are able to participate in deliberations, they must abstain from voting (Council of State Act, Art 1(4)). 24 Extraordinary councillors may become involved in the work of the Council of State to the extent that the vice-president has asked them to do so (Council of State Act, Art 10). 25 Dutch constitution, Art 74(2); Council of State Act, Art 2. Members of the advisory division can alternatively be appointed for a fixed term of at least three years. Vacancies in the Council of State are published in the government gazette; the Council of State makes recommendations on prospective candidates, and is consulted on the appointment of new vice-presidents. 26 Council of State Act, Art 8(2). 27 ibid, Arts 27a and 27b. 28 An example is the advice of the Council of State as regards the proposal for a law on mental health care for institutions providing health services and correctional facilities, where it provided an interpretation of Art 6 of the Dutch constitution in the context of its assessment of the desirability of the proposal. 18 19

16 THE ROLE OF NON-JUDICIAL ACTORS

treaties;29 the scope of ministerial accountability as regards private actions by the royal family;30 and whether the right of freedom of expression requires the removal of the prohibition on blasphemy from the criminal code.31 At the same time, it has been acknowledged – including by councillors themselves – that the Council of State at times refrains from commenting upon the constitutional issues raised by bills or that when it does address such issues, its reasoning can be somewhat superficial.32 To accommodate such concerns, and against the backdrop of a more general inclination in Dutch public and political life to enhance the prominence of the Dutch constitution,33 the Council of State created an internal ‘constitutional council’ (constitutioneel beraad) in 2008, pooling its available constitutional expertise.34 This constitutional council can be asked to deliver preliminary advice to both divisions of the Council of State on the applicability and interpretation of the Dutch constitution, national constitutional principles, EU law and fundamental rights treaties.35 For instance, in 2010 it dealt with the desirability of including a linguistic provision in the constitution; directed studies into the development of a wide-ranging approach to the interpretation of the fundamental rights provisions36 and the legal meaning of the ‘rule of law’ concept; and contributed to the debate on the temporal effects of the EU Charter of Fundamental Rights.37 ii. Belgian Council of State (Conseil d’État / Raad van State) The mandate of the Belgian Council of State as regards preventive constitutionality and preventive legality control of bills is largely similar to that of its Dutch counterpart.38 It must deliver advisory opinions on all legislative bills and proposals for regulatory decrees emanating from the central government or the governing bodies of the regions and the 29 Advisory opinion of 14 July 2003, Kamerstukken II 2002/2003, 28 885 no 2 and advisory opinion of 12 September 2007, Kamerstukken II 2007/2008, 31 091 no 4. 30 Advisory opinion of 23 December 2010, Kamerstukken II 2010/2011, 32 791 no 1. 31 Advisory opinion of 26 January 2010, Kamerstukken II 2009/2010, 32 203 no 4. 32 J de Poorter and H van Roosmalen, Rol en betekenis van de grondwet: constitutionele toetsing in relatie tot de Raad van State (The Hague, Raad van State, 2010), esp 137; highlighted as an area for improvement at 144. See also the responses of the government in the debate on the law restructuring the Council of State, Nadere memorie van antwoord, Kamerstukken I 2009/2010, 30 585 no 1. See further L Verhey, ‘Wetgever en constitutie: enkele beschouwingen over de mug en de olifant’ in H Schouten (ed), Wetgever en constitutie (Nijmegen, Wolf Legal Publishers, 2009); W Konijnenbelt, ‘Grondwetsinterpretatie door de Raad van State: wetgevingsadvisering en grondwetsbepalingen in de grondwet’ in R de Lange (ed), Wetgever en grondrechten (Nijmegen, Wolf Legal Publishers, 2008). 33 Consider, for instance, the 2009 Royal Commission for the Revision of the Constitution, which was asked to advise on the need for constitutional amendment in relation to certain topics, within the wider framework of reinforcing the constitution, as set out in the annex to the Decision of 3 July 2009, no 09.001852 establishing the commission and the discussion in the 2009 Annual Report of the Council of State, 51–77 (available at www. raadvanstate.nl). 34 2009 Annual Report of the Council of State, 54–55 (www.raadvanstate.nl). 35 Since such preliminary advice is seen as a step in the internal deliberation process within the Council of State, it is not made public. However, the advisory division can decide to include preliminary advice as an annex to its own advisory opinions, which are published. In 2010, this happened in relation to a comparative study on constitutional provisions related to language, which was annexed to an advisory opinion concerning a proposal for a constitutional amendment in relation to the Dutch and Frisian language: advisory opinion of 5 August 2010, Kamerstukken II 2010/2011, 32 522 no 4. 36 This culminated in a report explaining the importance of the constitution for the Council’s work and included proposals to further improve the way in which it exercises its constitutionality control: De Poorter and Van Roosmalen, Rol en Betekenis van de grondwet (n 32); Raad van State, Verslag van het symposium van de Raad van State op 25 mei 2010: Rol en betekenis van de grondwet (The Hague, Raad van State, 2010). 37 2010 Annual Report of the Council of State, 50–55. 38 Belgian constitution, Art 160; Council of State Act, Art 2(1).

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communities.39 As regards private members’ bills, consultation with the Council of State is mandatory if the speaker of Parliament receives a request to this effect by one-third of MPs or by the majority of a parliamentary language group.40 If the matter is declared to be urgent, the Council of State limits itself to examining the compatibility of the bill or proposal with the constitutional rules on the allocation of competences between the various state levels.41 In addition, the Council of State may be asked to prepare the draft of a bill or other legal norm or ensure the codification, simplification or coordination of legislation, in the light of directions as to the substance of those norms provided by the government or Parliament.42 There is no obligation incumbent on the Belgian government to respond to the Council of State’s advice.43 The Belgian Council of State has 44 members, comprising the first president, a president, 14 chamber presidents and 28 state councillors.44 New members are nominated by the Council of State and appointed for life by the Crown.45 To be eligible for appointment, candidates must be at least 37 years of age, hold a law degree and have a minimum of 10 years’ relevant working experience.46 The competences of the Council of State are divided between its two sections: the administrative litigation section serves as the country’s supreme administrative court, and the legislation section is responsible for the performance of the advisory tasks entrusted to the council. This latter section comprises four chambers organised along linguistic lines: two are Dutch-speaking; the other two are French-speaking.47 Each chamber comprises three councillors and one or two assessors, generally professors of law who can provide the chamber with additional expertise.48 Unlike its Dutch colleague, the Belgian Council of State only addresses the compatibility of bills and other proposals with higher standards in its advisory opinions and does not advise on the political expediency of legislative drafts. In conducting its assessment, the Council of State uses the constitution,49 EU law 39 This also includes the Brussels executive institutions (Council of State Act, Art 3(1)). Bills or drafts of decrees concerning budgets, accounts, loans, government property and the military are excluded. Moreover, individual ministers can ask the Council of State for an advisory opinion on drafts for royal decrees or on the decision to make a collective labour agreement generally binding (Council of State Act, Art 5). 40 Council of State Act, Art 2(2) and (3). If no such requests are forthcoming, consultation with the Council of State is optional. In general, if, after the Council of State has delivered its advisory opinion, changes are made to the legislative proposal other than in implementation of the Council’s suggestions, the text must be returned to the Council of State for a second advisory opinion on pain of the resulting decision being declared unconstitutional: Council of State, Decision of 26 April 1994, VZW Sint-Lodewijksscholen. 41 Council of State Act, Art 3(2). 42 ibid, Art 6 and 6bis. 43 Advisory opinions are not officially published by the Council of State; they remain confidential and it is for the competent minister to decide on their disclosure. This happens, just like in the Netherlands, for opinions concerning proposals for legislation, decrees or ordinances: advisory opinions and recommendations are added to the explanatory notes to such proposals when these are presented to Parliament for deliberation. 44 Council of State Act, Art 69. 45 The various stages in the appointment procedure are set out in ibid, Art 70(1). 46 ibid, Art 70(2). This provision also lists further qualifications and conditions as regards the working experience of prospective candidates. 47 The composition of the legislative division and its chambers is regulated in more detail in the Council of State Act, Arts 79–85bis. 48 These assessors are not formally part of the Council of State. 49 At the time of its establishment, the Council of State was expected to confine itself to advising on matters of legality and the technical quality of proposals, not their constitutionality. In its advisory practice, the Council of State soon abandoned this idea and included advice on constitutional aspects; today, its competence to address such aspects is uncontested according to J Velaers, ‘Het preventieve grondwettigheidstoezicht van de raad van state in het raam van de kwaliteitszorg voor wetgeving’ in M Adams and P Popelier (eds), Wie waakt over de kwaliteit van de wet? Het wetgevingsbeleid in België (Antwerp, Intersentia, 2000) 229–30.

18 THE ROLE OF NON-JUDICIAL ACTORS

and the European Convention on Human Rights.50 For instance, in the period 2009–10, the Council of State delivered a number of advisory opinions concerning the possibility of introducing bans on the wearing of religious symbols in the light of the constitutional principle of the neutrality of the state and relevant case law of the European Court of Human Rights; and also advised on various aspects relating to the horizontal separation of powers between the legislature and the executive, including the delegation of competences by the legislature to individual ministers and the legislative validation of executive decisions.51 As mentioned earlier, Belgium also has a constitutional court, which can review laws that have entered into force for their compatibility with the constitution.52 An in-depth study of advisory opinions by the Council of State in the period 1946–2000 has shown that the Council of State is frequently guided by the case law of the constitutional court as far as constitutional issues are concerned.53 However, the Council of State and the constitutional court do not always arrive at the same outcome. This has been observed in particular in relation to the principle of equality and institutional matters linked to state reforms, where the Council of State has not been very successful at anticipating and preventing a later verdict of unconstitutionality by the constitutional court. The study adduces several possible explanations for this outcome, such as the difficulty for the Council of State to detect all constitutional defects of a law as its examination is necessarily ex ante and abstract in nature, and the workload of the Council of State.54 iii. The Dual Mandate of Councils of State in the light of the European Convention on Human Rights A characteristic trait of Councils of State is the combination of consultative and adjudicatory tasks within the same institution. This dual mandate has been challenged as potentially incompatible with Article 6 of the European Convention on Human Rights, which amongst other things guarantees the right to an independent and impartial judge. The leading cases delivered by the European Court of Human Rights on this issue are Procola v Luxembourg55 and Kleyn v The Netherlands.56 In Procola, the applicant company had attacked a regulation concerning the apportionment of milk quotas before the judicial committee of the Luxembourg Council of State (Conseil d’État). Of the five councillors hearing the case, four had already scrutinised the contested legal provisions on a prior occasion, namely when the government had asked the Council of State to advise on the regulation in its draft version. According to Procola, this was incompatible with the principles of impartiality and inde50 The legislative division is under an ex officio obligation to examine bills for their compatibility with the constitutional allocation of competences: Council of State Act, Art 2(1). If the division is of the opinion that a bill or other proposal infringes this division of competences, the bill or proposal is forwarded to a special consultation committee, consisting of representatives of the federal and federated governments. This committee also examines whether the bill or proposal exceeds the competences granted to the level seeking to adopt it and, if so, asks the relevant government or Parliament to adjust the bill or proposal accordingly (Council of State Act, Art 3(3) and (4)). The idea is that this should help to avoid ex post litigation regarding the constitutional allocation of competences. 51 2009–10 Annual Report of the Council of State, 35–82. 52 Belgian constitution, Art 142; see ch 2, section III-A(i). 53 J Velaers, De grondwet en de Raad van State, afdeling Wetgeving: Vijftig jaar adviezen aan wetgevende vergaderingen, in het licht van de rechtspraak van het Arbitragehof (Antwerp, Maklu, 1999). 54 Velaers, ‘Het preventieve grondwettigheidstoezicht’ (n 49) 237–40. In 2008–09, the Council of State received 2,001 requests for advisory opinions; in 2009–10 this number decreased to 1,511. 55 Procola v Luxembourg Series A no 326 (1995). 56 Kleyn v The Netherlands Reports of Judgments and Decisions 2003-VI (2003).

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pendence as laid down in Article 6 of the European Convention on Human Rights. The Court agreed: In the context of an institution such as Luxembourg’s Conseil d’État the mere fact that certain persons successively performed these two types of function [advisory and judicial] in respect of the same decisions is capable of casting doubt on the institution’s structural impartiality. In the instant case, Procola had legitimate grounds for fearing that the members of the Judicial Committee had felt bound by the opinion previously given. That doubt in itself, however slight its justification, is sufficient to vitiate the impartiality of the tribunal in question.57

In the later case of Kleyn, involving a challenge to the impartiality of the whole institution of the Dutch Council of State rather than that of individual councillors, the European Court of Human Rights adopted a more restrictive approach. It did not insist on a formal separation of functions, but emphasised that regard should always be had to the particular factual circumstances of the case in deciding whether there had been an infringement of the Convention: [193] Although the notion of the separation of powers between the political organs of government and the judiciary has assumed growing importance in the Court’s case law, neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts regarding the permissible limits of the powers’ interaction. ... [198] It is not the task of the Court to rule in the abstract on the compatibility of the Netherlands system in this respect with the Convention. The issue before the Court is whether, as regards the appeals brought by the present applicants, it was compatible with the requirement of the “objective” impartiality of the tribunal under Article 6 § 1 that the Council of State’s institutional structure had allowed certain of its ordinary councillors to exercise both advisory and judicial functions. [199] In the present case the Plenary Council of State advised on the Transport Infrastructure Planning Bill, which laid down draft procedural rules for the decision-making process for the supra-regional planning of new major transport infrastructure. The applicants’ appeals, however, were directed against the routing decision, which is a decision taken on the basis of the procedure provided for in the Transport Infrastructure Planning Act. ... The Court is of the opinion that, unlike the situation examined by it in Procola and McGonnell, the advisory opinions given on the Transport Infrastructure Planning Bill and the subsequent proceedings on the appeals brought against the routing decision cannot be regarded as involving “the same case” or “the same decision”.

Accordingly, the Court found no violation of the principle of impartiality. Both judgments, particularly the ruling in Procola, have however been catalysts for institutional reform. In Luxembourg, the decision was taken to transfer the adjudicatory function of the Council of State to a newly created administrative court structure.58 At the same time, the role of the Luxembourg Council of State as an ex ante guardian of the constitution was strengthened, as it is now explicitly charged to examine laws and other legal norms for their compatibility with the Luxembourg constitution, international treaties and Procola (n 55) para 45. Luxembourg constitution, Arts 83bis and 95bis, introduced in the constitutional revision of 12 July 1996.

57 58

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general principles of law.59 In the Netherlands, significant changes were made to the institutional organisation of the Council of State (Raad van State), including the establishment of a separate advisory division60 and the prohibition for councillors who have been involved in the preparation of an advisory opinion to subsequently decide cases involving legal issues previously addressed in that opinion.61 B. Chancellors of Justice The chancellor of justice is another non-partisan body that is independent of the government and has a clear duty to uphold the national constitution. Such chancellors can be found in Finland, Estonia and Sweden. The first two are described in more detail in what follows, given that the role of the Swedish chancellor in upholding the constitution is considerably weaker and less visible than that played by its Finnish and Estonian counterparts in their respective constitutional systems. In Finland, the chancellor of justice (Oikeuskansleri) is the supreme guardian of the law.62 She is appointed by the president63 and has a dual mandate. On the one hand, the chancellor is required by the constitution to supervise the lawfulness of draft acts adopted by the government (legislative proposals included), individual ministers, the president and other public authorities. For this purpose, the chancellor receives proposals for such legal acts before these are discussed during the government’s plenary meetings, which she has a right and obligation to attend.64 On the other hand, and besides this monitoring function, the chancellor of justice also acts as a legal advisor to the government and the president, providing these State organs with information and opinions on legal issues, if so requested. This allows the government to determine in advance whether the political decisions it wishes to take are within the limits of the law.65 As of 1995, the constitution explicitly directs the chancellor to monitor the implementation and realisation of the human rights enshrined in the Finnish constitution and international treaties.66 Notwithstanding her closeness to the executive, it is important to realise that the chancellor of justice carries out her functions in an impartial and independent manner. Although the chancellor’s mandate is framed in terms of supervising or advising on the ‘lawfulness’ of acts, this is understood to also encompass scrutiny of the compatibility of draft measures with the constitution, including whether they encroach upon constitutional rights. When overseeing the legality of acts proposed by the government, individual ministers or the president, the Law of 12 July 1996 reforming the Council of State, Art 2(2). Council of State Act, Arts 16–27. The ability to establish separate divisions for advice and for litigation is provided for in the Dutch constitution, Art 73(2). The separation is not complete, however: the vice-president and a maximum of 10 members have seats in both divisions. 61 Council of State Act, Art 42(4). 62 This function is shared with the parliamentary ombudsman, who is appointed by, and associated with, Parliament (Finnish constitution, s 109). A description of both institutions can be found in J Husa, The Constitution of Finland: A Contextual Analysis, Constitutional Systems of the World (Oxford, Hart Publishing, 2011) 152–56. 63 Finnish constitution, s 69. 64 ibid, s 111. The chancellor is able to make reasoned observations regarding the lawfulness of draft bills or other measures. If these are disregarded by the government or president, they will be recorded in the government’s minutes (Finnish constitution, s 112). 65 HE (Government Bill) 1/1998 at 166. 66 Finnish constitution, s 108. A similar duty is incumbent on the parliamentary ombudsman (Finnish constitution, s 109). 59 60

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chancellor seeks amongst other things to ensure that these are in conformity with the constitutional standards and opinions articulated by the Parliament’s Constitutional Law Committee (on which, see below). This may entail that she requests that the responsible ministry or the president (mainly in the case of decrees) amend or elaborate the proposals as regards the identification of the human rights that are affected by it or concerning how the balance has been struck between competing rights. However, lack of manpower and a tight timetable mean that the chancellor of justice is not always able to (thoroughly) scrutinise whether draft measures comply with the constitution.67 When she has doubts about the constitutionality of proposals, it is common for the chancellor to recommend that the government insert a reference into the bill indicating the need for an examination of the legislative proposal by the Constitutional Law Committee of the Finnish Parliament, rather than review and comment on the constitutional issues herself. The prominent role of this intra-parliamentary body in ensuring the constitutionality of legislation is explored in section III-B(i) below. Finally, while the chancellor’s main constitutional duties are performed during the preparatory stages of the procedure culminating in the adoption of legislation and decrees and hence concern ex ante constitutional monitoring, her mandate also includes a form of ex post control as she is competent to hear and decide complaints by individuals alleging that public officials have acted incorrectly or infringed their rights. The duty to ensure that public authorities have acted in accordance with the law (understood in a broad sense also to encompass principles of good governance and fundamental rights) at the behest of individual complainants is shared with the parliamentary ombudsman and in practice, the bulk of complaints are lodged with the latter body. The chancellor presents an annual report on her activities to the Parliament and the government, which includes observations on how the law has been respected.68 The Estonian chancellor of justice (Õiguskantsler) is appointed by Parliament, on the proposal of the president. This independent official is explicitly conceived by the constitution as a guardian of both the constitutionality and the legality of a wide range of legislative and administrative actions.69 The Estonian chancellor has a variety of means at her disposal for doing so.70 First, she scrutinises proposed bills and amendments of existing laws for their conformity with the constitution, mostly at the request of parliamentary committees.71 If warranted by the outcome of the examination, the chancellor sends a report with her findings to Parliament. In addition, the chancellor receives the agenda for meetings of the government, together with legal drafts to be debated, and she has the right to comment on these drafts during those meetings.72 According to the 2007 annual report: 67 P Tallroth, Who Safeguards our Rights? The Finnish Institutions and the Discussion about a Constitutional Court (Helsinki, Unigrafia, 2012) 20–21, referring to J Jonkka, ‘Oikeuskansleri valtioneuvoston valvojana’ in Mikael Híden Juhlajulkaisu 1939-7/12-2009 (Helsinki, Finnish Lawyers’ Association, 2009). 68 Finnish constitution, s 108. 69 In addition, the chancellor makes recommendations to Parliament on the initiation of criminal proceedings against MPs, the president, members of the government, the auditor general or members of the supreme court (Estonian constitution, Art 139(3)); resolves discrimination disputes between private individuals (Legal Chancellor Act, Art 1(5)); and is the national preventive mechanism under the Optional Protocol to the Convention against torture and other cruel, inhuman or degrading treatment or punishment. 70 Given the centrality of the chancellor in supervising the constitutionality and legality of legal norms, her independence is of paramount importance (Estonian constitution, Arts 139, 140(2), 141(1) and 145). More detailed provisions governing the appointment of the chancellor, eligibility requirements for the post and grounds for termination or removal from office can be found in the Legal Chancellor Act, Arts 5–14. 71 Estonian constitution, Art 139(2); Legal Chancellor Act, Art 1(2). 72 Estonian constitution, Art 141(2); Legal Chancellor Act, Art 2. These rights also exist in relation to sessions of the Parliament.

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In his opinion, the Chancellor focuses on draft provisions which are manifestly unconstitutional. . . . In 2007, the Chancellor of Justice reviewed 166 items on the agenda of the Government and made observations about them in 24 cases. In general, it may be said that the majority of the observations made by the Chancellor were taken into account or the draft act was revised in view of those proposals and remarks. During the reporting year, cases also occurred where, based on an opinion of the Chancellor, the Government decided to postpone adoption or approval of a draft legal act or introduce significant changes to it.73

Second, besides ex ante verification of legislation, the chancellor is responsible for reviewing acts of parliament and other legal norms with general application against the constitution and other legislation.74 For this purpose, the Parliament, the executive and local governments must send the chancellor a copy of acts of general application within 10 days of having proclaimed, adopted or signed such acts or their entry into force.75 If she has doubts about the constitutionality of the legal norm, the chancellor must recommend to the responsible institution that it rectify the unconstitutionality within 20 days.76 If this does not happen, she has to refer the legal norm to the constitutional review chamber of the supreme court for annulment.77 It should be noted here that the chancellor is the only non-judicial institution who can petition the supreme court for a judgment that a particular law is unconstitutional.78 In practice, however, the legal chancellor is usually able to ensure the termination of a situation of unconstitutionality without requiring the assist ance of the supreme court.79 Third, since 1999 the chancellor also exercises the function of constitutional ombudsman. As such, she assesses whether public authorities respect people’s constitutional rights and freedoms, either prompted by individual petitions or during the course of an own-initiative investigation.80 At the close of an examination, the chancellor adopts an opinion, which includes recommendations to the public authority concerned in the event of a violation of a constitutional right or freedom. Despite the non-binding character of these opinions, they are almost always complied with.81 Every year, the chancellor provides Parliament with a report on the conformity of legal norms of general application with the constitution as well as a report on her activities in guaranteeing respect for constitutional rights and freedoms.82 These reports may also highlight constitutional problems that the chancellor believes warrant legislative attention.

73 2007 Annual Report of the Chancellor of Justice (Tallinn, 2008) 7. Annual reports are available on the website of the legal chancellor (www.oiguskantsler.ee). 74 This includes international agreements which have been signed but have not yet entered into force (Legal Chancellor Act, Art 16; Constitutional Review Court Procedure Act, Art 6(4)). 75 It should be noted that in addition, everyone has the right to petition the chancellor with a request to verify the constitutionality of these legal norms (Legal Chancellor Act, Art 15). 76 Estonian constitution, Art 142(1); Legal Chancellor Act, Art 17. 77 Estonian constitution, Art 142(2); Legal Chancellor Act, Art 18. 78 Although the president also has access to the supreme court, this is only for review of laws that have not yet entered into force (Constitutional Review Court Procedure Act, Art 5). 79 According to statistics available on the website of the chancellor, she has made more than 400 requests to remedy the unconstitutionality of legal norms, and in only 21 cases was it considered necessary by the chancellor to initiate proceedings in the supreme court. 80 Legal Chancellor Act, Arts 19–21. 81 This is no doubt facilitated by the fact that the public authority under investigation has to inform the chancellor of the remedial action it has taken in response to her opinion (Legal Chancellor Act, Art 33(1)). In the event of non-compliance, the chancellor may make a report to the supervisory body of the defiant authority, to Parliament or to the government. She may also inform the public. 82 Legal Chancellor Act, Art 4.

PARLIAMENT AND ITS COMMITTEES 23

III. PARLIAMENT AND ITS COMMITTEES

Many countries require Members of Parliament to swear or promise to uphold the constitution upon accepting office.83 More generally, as one of the addressees of the constitution, Parliament as whole must work within constitutional limits when performing its functions. This notably entails that constitutional rules, principles and values are respected during the drafting and enactment of new statutes. As such, parliamentarians may need to decide on the meaning of the national constitution and determine whether proposals for legislation or other acts are constitutional. But how does Parliament go about confronting constitutional issues? And what can be said about the presence of other actors with a responsibility to uphold the constitution as regards the Parliament’s inclination to interpret the constitution and the quality of its interpretation? These questions are explored in more detail in what follows. As a caveat, it should be noted here that, regrettably, the literature on constitutional interpretation by Parliaments is still in its infancy.84 This means that the points mentioned below cannot always be developed in great depth or illustrated with the help of many practical examples.

A. Opportunities for Parliament to Uphold the Constitution In the ordinary course of parliamentary business, questions of constitutional interpretation and review sensu lato can arise in various forms. Thus, a debate on the adoption of a legislative bill may require that relevant constitutional provisions have first been interpreted to define the constitutionally permissible space within which MPs can then discuss the legopolitical feasibility and desirability of that bill. For instance, whether the legislature should allow or prohibit the use of religious symbols in public necessitates the construction of constitutional articles dealing with such matters as freedom of religion, the secular character of the state and the duty of the state to provide education to assess whether a law with such content is even possible on constitutional grounds. It is important to note here that the majority of constitutional provisions are not framed in absolute or unconditional terms, so this is a question not just of construing the meaning of the basic principle, but also of defining the permissible incursions or exceptions. Accordingly, in some cases, this may even result in a reorientation of the debate towards the appropriateness of (the formulation of) certain constitutional parameters. Apart from the interpretation of constitutional provisions that have a bearing on the proposed substantive content of a law, Parliament also has to determine the proper reading of constitutional provisions governing the parliamentary process. Can the constitutional 83 See eg Czech constitution, Art 23 (‘I swear to uphold its Constitution’); Dutch constitution, Art 60 (‘Upon accepting office members of the Houses shall . . . swear or promise allegiance to the Constitution’); Polish constitution, Art 104 (‘I do solemnly swear . . . to observe the Constitution’). 84 Much of the literature that is available concerns Commonwealth countries, eg D Feldman, ‘Parliamentary Scrutiny of Legislation and Human Rights’ [2002] PL 323; J Hiebert, ‘Interpreting a Bill of Rights: The Importance of Legislative Rights Review’ (2005) 35 British Journal of Political Science 235; M Tushnet, ‘Non-Judicial Review’ in T Campbell, J Goldsworthy and A Stone (eds), Protecting Human Rights: Instruments and Institutions (Oxford, Oxford University Press, 2003).

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right of members of the government to address Parliament be limited in duration?85 Who is competent to declare that a bill is urgent, which according to the constitutional text therefore warrants a shorter procedure for adoption, and in what respects is such a procedure different from the ordinary procedure?86 A number of such questions will be dealt with in the context of the adoption of the parliamentary standing rules that further seek to regulate Parliament’s activities, its role in the legislative process included. In addition, Parliament may be called upon to act in its capacity as (part of) the constitutional legislature.87 As such, it may have to decide whether recourse should be had to a constitutional amendment procedure and what the content of any constitutional amendment should be.88 This in turn may require Parliament, acting as (part of) the constitutional legislature, to first establish the meaning of the constitutional provisions already in force to evaluate whether a constitutional revision is in fact required. A good example concerns the ratification of international treaties. In the event of incompatibility between an international commitment and the constitution, a prior amendment of the constitution is typically required before the treaty can be ratified.89 This of course presupposes the interpretation of constitutional clauses to identify such an incompatibility, which also influences the decision as to what the text of the revised provisions should say to eliminate the inconsistencies. Alternatively, recourse may be had to the amendment procedure to reaffirm Parliament’s own interpretation of the constitution and thereby override a different reading propounded by a court with constitutional jurisdiction. This has happened in France, amongst other places, where Parliament sought to advance gender equality by imposing the requirement of pre-determined proportions of men and women on candidate lists for certain elective political positions. The French Conseil constitutionnel, however, refused to endorse the law and found that it was contrary to the constitutional principle of equality.90 The constitutional legislature thereupon amended the relevant provision of the constitution to enshrine its understanding of the notion of equality by explicitly authorising the enactment of legislation to ‘promote equal access by women and men to elective offices and posts’.91 85 Consider, for example, the Czech constitution, Art 38(1) (‘Members of the government . . . shall be given the opportunity to speak whenever they request’) and the French constitution, Art 31 (‘Members of the Government . . . shall address either House whenever they so request’). Reference should also be made here to the French motion d’irrecevabilité constitutionnelle (French constitution, Art 41), which allows the government or the president of one of the Houses of Parliament to object to a bill because its subject matter falls outside the scope of parliamentary authority as determined by Art 34 of the constitution and instead comes within the domain of the government per Art 37 of the constitution. The motion is seldom invoked, however. 86 eg Italian constitution, Art 72 (‘The Rules [of procedure] shall establish shorter procedures to consider a Bill that has been declared urgent’). 87 To be clear, there are usually some differences between Parliament in the exercise of its role under regular procedures for the adoption of legislation and Parliament in its capacity as (part of) the constitutional legislature: for instance, in the latter scenario, it is more common for actors other than Parliament to be involved in the process and Parliament itself may have to act with a different composition or observe different (and usually more stringent) procedures and majorities. 88 For a general overview of various amendment procedures, see R Dixon, ‘Constitutional Amendment Rules: A Comparative Perspective’ in T Ginsburg and R Dixon (eds), Comparative Constitutional Law, Research Handbooks in Comparative Law (Cheltenham, Edward Elgar, 2011). 89 As we shall see in ch 3, section III-A(i)(a), some courts with a constitutional mandate may be asked to determine whether there is a need to amend the constitution before an international treaty can be ratified. 90 Décision 82-146 DC of 18 November 1982. 91 Constitutional Act 99-569 of 8 July 1999. When the permissibility of such female quotas was again questioned in the context of a challenge against a second law on the composition of electoral lists, the Conseil constitutionnel deferred to the constitutional legislature and refused to reaffirm its own earlier interpretation: Décision 2000-429 DC of 30 May 2000. A more detailed discussion of these two decisions, as well as examples from other countries of where the constitution was amended to overrule a negative decision of the constitutional court, can be found in ch 7, section II-C.

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Some constitutions also include provisions that are explicitly declared unamendable. Thus, the Italian constitution protects the republican form of government from amendment92 and the German Basic Law absolutely entrenches the principle of human dignity and the federal and democratic character of the state.93 The Portuguese constitution also enumerates various substantive limits to constitutional revision, such as the unity of the state, the separation between church and state, citizens’ rights and judicial independence.94 It will thus fall initially to Parliament, acting as (part of) the constitutional legislature, to assess what exactly is meant by human dignity or the unity of the state and whether proposed amendments respect the constraints posed by these inviolable principles. A variation on this theme is more procedural in nature. In Spain, for example, the constitution distinguishes between ordinary con stitutional amendments and the total revision of the constitution, with different amendment procedures for each of these scenarios.95 Determining the extent of the modification proposed, and hence the procedure to be followed, entails a construction of the constitution in its current form, against which the amendment is then assessed. From this brief overview, it should be clear that questions of constitutional interpretation can arise in various shapes and sizes: some are more substantive, others more procedural; some are more concerned with the legislative process; others more with Parliamentgovernment relations; and yet others even concern the constitution itself. B. Parliament, its Chambers and its Committees When Parliaments are called upon to uphold the constitution, they can do so in various institutional configurations. Constitutional amendments, and the interpretive processes they presuppose, are ultimately the responsibility of Parliament as a whole (while noting that other actors besides Parliament may also have a part to play). When it comes to the legislative process, debates on the adoption of a bill, and decisions on its final text, take place within plenary sessions in each House of Parliament consecutively in the case of a bicameral Parliament and by the single House in the case of a unicameral Parliament. Most countries that belong to the European Union have opted for a bicameral parliamentary system and it is not uncommon for the lower House to be predominantly focused on legopolitical issues, with the upper House being somewhat removed from the hubbub of daily politics and devoting more attention to the constitutional dimension of legislation.96 For instance, in the Netherlands, the Senate (Eerste Kamer) assesses bills for their quality and constitutional conformity rather than on grounds of political opportunity, which it considers to be the responsibility of the House of Representatives (Tweede Kamer).97 This has earned the Senate the appellation ‘chambre de refléxion’.98 Italian constitution, Art 139. German Basic Law, Art 79(3). 94 Portuguese constitution, Art 288. 95 Spanish constitution, Arts 167 and 168. Consider also the Austrian constitution, which in Art 44 distinguishes between the adoption of constitutional laws and constitutional amendments, and partial revision and total revision, with different procedures to match. 96 Yet, as Kokott and Kaspar, ‘Ensuring Constitutional Efficacy’ (n 2) 802 observe, ‘the greater distance of such chambers from the electorate usually also implies a reduction of their influence on the legislative process’. 97 For example, in 2011 the Dutch Senate adopted a motion requesting the government to use a number of criteria in deciding on, and justifying, government bills that bring about a restriction of the constitutional right to privacy, the so-called motion-Franken: Kamerstukken I 2010/2011, 31 051 no 1. 98 Translation: ‘chamber of reflection’. This definition has also been embraced by the Dutch Senate itself: see eg its 2003–04 Annual Report at p 11 (available at www.eerstekamer.nl). 92 93

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Plenary sessions of Parliament – usually regardless of the type of parliamentary activity concerned – are often preceded by preparations (in the form of discussions and the drafting of reports) in parliamentary committees. These comprise small groups of MPs and have a special responsibility for a certain topic. Constitutions can stipulate the establishment of particular committees, typically leaving it to Parliament to establish additional ones as and when it sees fit.99 It is axiomatic that constitutional questions can be discussed in any and each of these various parliamentary committees. In particular, committees on legal affairs or on institutional reform also address general constitutional issues as part of their work. For instance, the German legal affairs committee not only advises on the drafting of legislative bills, but also keeps track of judgments of the country’s constitutional court and makes recommendations on the follow-up to con stitutional decisions. Similarly, in Lithuania, the committee on legal affairs debates constitutional amendments, scrutinises draft legislation for constitutional compatibility, and prepares modifications for laws that have been found unconstitutional by the country’s constitutional court.100 For these committees, constitutional scrutiny is part of a wider remit that also includes the performance of other duties. In some Member States, parliamentary committees have been established that are explicitly and specifically responsible for scrutinising bills for constitutionality and elaborating the meaning of the constitution for this purpose. In the countries under study in this book, such committees exist in Finland and the United Kingdom. The decision to establish such dedicated intra- parliamentary committees with a clear mandate to uphold the constitution in these jurisdictions has probably been influenced by the fact that there are few other actors in Finland and the United Kingdom that actually share responsibility with Parliament for constitutional interpretation.101 i. Finland: Perustuslakivaliokunta In Finland, the Constitutional Law Committee (Perustuslakivaliokunta) is the authoritative interpreter and ultimate guardian of the constitution. It is one of four committees whose establishment is required by the constitution – the others being the grand committee,102 the foreign affairs committee and the finance committee.103 The tasks of the Perustuslakivaliokunta are set out in section 74 of the constitution as adopting ‘statements on the constitutionality of

99 But note the French constitution, which provides in Art 43 that each House of Parliament can have at most eight standing committees (this used to be only six, prior to the 2008 constitutional revision). 100 Statute of the Lithuanian Parliament, Art 67. 101 This in turn may be explained by the fact that the United Kingdom and the Scandinavian countries are said to belong to the evolutionary constitutional tradition, with a constitution that is pragmatic in nature and reflects long-term political developments and with the countries belonging to this tradition typically not perceiving a need, on the basis of their historical experiences, for a (judicial or otherwise) countervailing force vis-à-vis Parliament. On the tradition and its alternative, the revolutionary constitutional tradition, see L Besselink, A Composite European Constitution / Een samengestelde Europese constitutie (Groningen, Europa Law Publishing, 2007). 102 The Finnish system seems to exhibit a tendency to entrust functions that in other countries are entrusted to a separate state organ to a parliamentary committee. For instance, the grand committee was created to assess most of the matters presented by the cabinet to the Parliament – tasks usually performed by a Senate in a bicameral system. 103 Finnish constitution, s 35.

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legislative proposals and other matters104 brought for its consideration, as well as on their relation to international human rights treaties’.105 There are two ways in which the Constitutional Law Committee can be invited to carry out its mandate of scrutinising bills for constitutionality and draw up a report of its findings. Following an introductory debate in Parliament, the speaker’s council may propose to the plenary that the bill (or another matter) be referred to the Perustuslakivaliokunta for consideration.106 We saw earlier that when the Finnish chancellor of justice believes that a government bill suffers from constitutional shortcomings, she habitually recommends that the government indicate in its legislative proposals that it is desirable to seek the Constitutional Law Committee’s opinion. The inclusion of a statement to that effect strongly influences Parliament’s decision to refer the relevant proposal to the Constitutional Law Committee for scrutiny. Alternatively, a bill may initially have been allocated to a different parliamentary committee and when this committee is considering the matter, doubts arise as to the bill’s compatibility with the constitution. In such instances, the parliamentary committee originally in charge of preparing the legislative proposal for debate in the plenary must obtain a statement from the Perustuslakivaliokunta on issues pertaining to the constitutionality of the proposal.107 Once the Constitutional Law Committee receives a legislative proposal for examination, it organises a formal hearing. During this hearing, the views of civil servants involved in the drafting of the relevant proposal are solicited and the Committee furthermore consults with external experts, usually professors of constitutional law, either orally or in writing.108 This is followed by an internal preparatory discussion which, together with the opinions professed by the experts, forms the basis for a draft of the report or statement. Following a general discussion and detailed reading of this draft, the Committee takes a decision on its position on the constitutional issues before it, as well as on the reasons supporting its views.109 While the opinions delivered by the Constitutional Law Committee are not de jure

104 Such other matters encompass proposals for the enactment, amendment or repeal of the constitution (Parliament’s rules of procedures, s 32(4)) and examining proposals for EU measures concerning matters that would otherwise fall within the competence of the Finnish Parliament and that pertain to the constitution (see the Finnish constitution, s 96, which provides that the government must communicate such proposals to Parliament without delay). Besides constitutional monitoring, the Constitutional Law Committee must issue an opinion in cases of alleged malfeasance on the part of a government minister (Finnish constitution, ss 114–16) before an MP or the ombudsman can be dismissed (Finnish constitution, ss 28 and 38), or if Parliament feels that its speaker has unduly refused to include a matter on the agenda or a motion in a vote (Finnish constitution, s 42). 105 As far as human rights obligations are concerned, the Constitutional Law Committee favours an interpretation technique that opts for the most human rights-friendly reading of provisions referred (Report 25/1994, in line with s 22 of the Finnish constitution, demanding that ‘public authorities shall guarantee the observance of basic rights and liberties and human rights’). 106 Parliament’s rules of procedure, s 32. This provision prescribes as a general rule that a parliamentary committee should prepare proposals for legislation and various other acts before these are debated by the plenary. It is also possible for Parliament to stipulate that although the bill (or other matter) will not be prepared by the Constitutional Law Committee, the latter’s opinion should be sought by that other committee. 107 Parliament’s rules of procedure, s 38(2). The other parliamentary committee is not required to heed the view of the Constitutional Law Committee, but must give reasons for its decision not to follow the comments and recommendations provided by the latter. 108 This practice of involving external experts is by now so well-established that M Scheinin, ‘Constitutional Law and Human Rights’ in J Pöyhönen (ed), An Introduction to Finnish Law (Helsinki, Kauppakaari, 2002) speaks of a constitutional custom. 109 See Parliament’s rules of procedure, s 39. It is possible for committee members to write dissenting opinions (Parliament’s rules of procedure, s 42), but the Constitutional Law Committee is consensus-oriented and dissenting opinions are accordingly uncommon.

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legally binding for Parliament, it is a matter of constitutional custom that they are in fact treated as such.110 If the Committee finds that the legislative proposal passes constitutional muster, it can be adopted as an ordinary act of parliament.111 Otherwise, the Committee specifies how the bill can be amended to eliminate the constitutional problems it has identified. However, legislative proposals that are incompatible with the constitution can, even without constitutional amendment, still become law. What is distinctive about the Finnish constitution is that it allows for the adoption of so-called ‘exceptive laws’ (poikkeuslaki).112 Exceptive laws are substantively unconstitutional, but can be enacted using the qualified procedure for amending the constitution itself. The practical consequence of an exceptive law is that the constitutional provisions that would otherwise stand in the way of valid adoption of the law are displaced, without there being any change to the wording of the constitution.113 Initially, the use of this instrument was not subject to any substantive restrictions and exceptive laws were frequently adopted.114 In the 1980s, however, a principle of reticence towards the use of such laws emerged, with consequences for the functioning of the Constitutional Law Committee.115 In the past, it had been primarily concerned to ensure that the proper procedure was used for the adoption of new legislation (either the ordinary procedure or that for exceptive laws). The Committee now began to examine (more) critically the substance of legislative proposals for their constitutionality, because any con110 Reliance is placed on s 42 of the Finnish constitution, which deals with the duties of the Speaker of Parliament, in particular the obligation not to include items on the parliamentary agenda that are considered unconstitutional. This obligation is taken to include ensuring that the opinions and reports of the Constitutional Law Committee have been duly respected; see HE (Government Bill) 1/1998, 93–94. 111 If the involvement of the Constitutional Law Committee comes about at the request of another parliamentary committee, it gives an opinion; if it is asked to give a statement by Parliament, it submits a report. 112 Finnish constitution, ss 73 and 95(2). K Tuori, ‘Landesbericht Finnland’ in A von Bogdandy, P Huber and C Grabenwarter (eds), Ius Publicum Europaeum: Verfassungsgerichtsbarkeit im europäischen Rechtsraum (Heidelberg, CF Müller, forthcoming) attributes importance to the phenomenon of exceptive laws in explaining the emphasis on ex ante parliamentary constitutional review. He writes that during the period under Russian rule (1809–1917), it was exceedingly difficult for political reasons to amend the constitution and that exceptive laws were useful instruments for adopting laws considered necessary but incompatible with the constitution. The decision whether an act of parliament was incompatible with the constitution and thus required the special procedure for exceptive laws was left to parliamentary committees, in particular the Constitutional Law Committee since its establishment in 1906. For a historical overview of the instrument of exceptive laws, consider P Kastari, ‘The Historical Background of Finnish Constitutional Ideas’ (1963) 7 Scandinavian Studies in Law 61; M Hidén, ‘Constitutional Rights in the Legislative Process: The Finnish System of Advance Control of Legislation’ (1973) 17 Scandinavian Studies in Law 97. 113 s 73 Finnish constitution is the default provision and prescribes that a proposal for an exceptive law normally requires that a bill is left in abeyance until after parliamentary elections and must be adopted – without material alteration – by at least a two-thirds majority vote in favour. The proposal may, however, also be declared urgent by a decision supported by at least five-sixths of votes cast, in which case it can be adopted immediately by a two-thirds majority in Parliament. As regards the use of exceptive laws to incorporate international treaties that deviate from the Finnish constitution, a less rigorous procedure applies as there is no need to leave the proposal in abeyance and adoption is possible if there is a two-thirds majority in favour (Finnish constitution, s 95). Notwithstanding the qualified procedure used for their adoption, exceptive laws are treated as ordinary acts of parliament and can accordingly be changed or modified by normal acts of parliament. 114 This device was used on 888 occasions between 1919 and 2000: T Ojanen, ‘The Impact of EU Membership on Finish Constitutional Law’ (2004) 10 European Public Law 531, 535, referring to N Kasurinen, ‘Ennen 1.3.2000 säädettyjen poikkeuslakien suhde uuteen perustuslakiin’ in Perustuslakiuudistukseen liityviä selvityksiä, Perustuslain seurantatyöryhmän mietinnön liite, työryhmamäietintö (Helsinki, Oikeusministeriö, 2002) 123–253. To give one example, the entry of Finland into the EU was carried out by means of an exceptive law (Act on Finnish Membership of the European Union 1540/1994). Part of the explanation for the popularity of this instrument is that in Finland, competences regarding economic control and regulation are considered to infringe the constitutional right to property and hence are in need of adoption by means of an exceptive law. 115 Tuori, ‘Landesbericht Finnland’ (n 112) para 2.2.4.

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stitutional defects should preferably be remedied by changes to the proposal rather than by recourse to an exceptive law. The new Finnish constitution, which entered into force in 2000, confirms this attitude of restraint as regards the adoption of exceptive laws and indicates that these are permitted only if they bring about a ‘limited derogation of the constitution’ (rajattu poikkeus). According to the travaux préparatoires, such laws can in principle only be used to incorporate international obligations, and not for carrying out major constitutional changes.116 Turning to the composition of the Constitutional Law Committee, the constitution prescribes that it should comprise at least 17 MPs. They are chosen on the basis of their party affiliation, resulting in party representation proportional to that party’s representation in the Parliament.117 MPs are elected to the Constitutional Law Committee by secret ballot for the duration of one parliamentary session, yet in practice the Committee’s composition is more stable than this rule would suggest, with many of the same MPs being re-elected year after year. Despite its character as an intraparliamentary – and hence political – body, the Perustuslakivaliokunta carries out its work in an independent and non-partisan manner. It can be said to operate in a quasi-judicial way and subscribes to legal principles and interpretation techniques, evident for instance in its routine use of precedent.118 Further, the Constitutional Law Committee is highly respected by Parliament and the government. The 2000 constitutional reform also introduced a limited form of judicial enforcement of the constitution. As will be explained in more detail in chapter two, all Finnish courts may today refuse to apply an act of parliament to the specific controversy before them if its application would be in ‘evident conflict’ with the constitution.119 However, the documents preparing the way for the introduction of this limited form of constitutional adjudication were at pains to assert that the Perustuslakivaliokunta remains the authoritative interpreter of the constitution and principally responsible for ensuring the constitutional propriety of acts of parliament, and this seems to be borne out by constitutional practice.120 ii. United Kingdom: House of Lords Constitution Committee Constitutional scholars will be well aware that the doctrine of parliamentary sovereignty is one of the key tenets of the UK constitutional order. It should thus come as no surprise that Parliament itself plays a central role in upholding the constitution when adopting statutes. Against the backdrop of a number of laws that have had a significant impact on the 116 HE (Government Bill) 1/1998, 125. See also statement 6/2006 of the Constitutional Law Committee (referring to its earlier statements 1a/1998, 26/2004 and 3/2005), remarking that ‘the passing of legislation which is entirely of a national nature and at variance with the Constitution should be avoided’. 117 Finnish constitution, s 35(2); Parliament’s rules of procedure, s 8. Committee members are elected by the plenary session of Parliament; the Committee elects its own president and vice-president from among its members. The Committee has a quorum when at least two-thirds of its members are present, unless a higher quorum has been specifically required for a given subject matter. For instance, an inquiry into the behaviour of government ministers requires the presence of all members of the Constitutional Law Committee (Finnish constitution, s 114). 118 See eg statement 56/2001 of the Constitutional Law Committee on the future of the European Union. 119 Finnish constitution, s 106 – discussed in more detail in ch 2, section III-C(i). 120 By 2011, the courts had used the power to disapply acts of parliament in only four instances, described in J Lavapuro, T Ojanen and M Scheinin, ‘Rights-Based Constitutionalism in Finland and the Development of Pluralist Constitutional Review’ (2011) 9 International Journal of Constitutional Law 505, 524 ff; see also V-P Hautamäki, ‘Novel Rules in the Finnish Constitution: The Question of Applicability’ (2007) 52 Scandinavian Studies in Law 134, in particular 148 ff.

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UK constitution – think of joining the (then) European Communities, devolution and the reform of the House of Lords – it was decided to establish a new House of Lords committee devoted exclusively to constitutional affairs.121 Former prime minister John Major endorsed such a step with the following words: In the absence of a written Constitution it is all too easy to promote radical changes and we are currently experiencing major constitutional upheaval. Equally, there are times when parts of the Constitution can become silted up. In both circumstances it seems to be to be highly desirable to have in place a respected committee of distinguished people who understand how the British Constitution works and who are under a duty to produce independent, dispassionate and authoritative reports on problem areas within the Constitution and on proposals for changing it.122

The House of Lords Constitution Committee duly came into existence on 8 February 2001. This intraparliamentary body is independent of the government and performs its duties in a non-partisan manner.123 The Committee’s mandate is twofold: it must examine all public bills introduced to the House of Lords for matters of constitutional significance,124 and it must keep the operation of the constitution under review.125 When engaging in legislative scrutiny, the Constitution Committee asks whether the bill raises ‘questions of principle about principal parts of the Constitution’ and if it believes that the answer is in the affirmative, it may request information or evidence from the relevant minister (oral and/or written) or ask other bodies or persons to give input.126 As the Committee’s remit is confined to constitutional matters, it will not usually present conclusions on the merits of the proposal, but confine itself to comment on the implications of the bill for the system of government, state-individual relations and the (in)consistency of the bill with similar legislation in other areas of government. If and when appropriate, the Constitution Committee prepares a report on the bill, the publication of which is usually timed to take place before the second reading of the bill in the House of Lords, so that the report can actually inform the substantive deliberations in the House of Lords.127 The Constitution Committee has made it clear 121 On recommendation of the Report of the Wakeham Commission, A House for the Future, Cm 4534 (2000), notably para 5.14 (advising that the House of Lords should act as a ‘constitutional long-stop’) and para 5.17 (proposing that in discharging this role, the House of Lords ‘should establish an authoritative Constitutional Committee to act as a focus for its interests in and concern for constitutional matters’, and acknowledging that this recommendation built on similar suggestions from across the political spectrum). The House of Commons does not have a Constitution Committee, but its Select Committee on Public Administration can, and does, examine issues with constitutional significance. 122 Reproduced in Constitution Committee, Reviewing the Constitution: Terms of Reference and Method of Working (HL 2001–02, 11). 123 Note that the whip system (a main task of whips is to ensure that party members toe the party line and vote accordingly) does not operate on select committees of the House of Lords or the House of Commons. 124 The Committee also carries out pre-legislative scrutiny of Welsh legislative competence orders. 125 In its report Reviewing the Constitution (n 122), the Constitution Committee adopted the following working definition of the UK constitution: ‘the set of laws, rules and practices that create the basic institutions of the state, and its component and related parts, and stipulate the powers of those institutions and the relationship between the different institutions and between those institutions and the individual’. 126 During the scrutiny of the Health and Social Care Bill in late 2011, the government even allowed officials from the Constitution Committee to have personal meetings with the civil servants responsible for the bill and the responsible minister attended a private meeting with the Committee, which has been described as bringing about a very productive interaction between government and Parliament, culminating in a compromise that allowed the government to achieve its core objectives while the constitutional quality of the bill was improved at the same time. 127 In addition to this default method of reporting on the constitutionality of bills, the Constitution Committee has developed an ‘enhanced legislative scrutiny model’, which combines the traditional model of legislative scrutiny with some aspects of the Committee’s approach to inquiry work. Such enhanced legislative scrutiny is considered particularly appropriate for bills proposing significant constitutional reforms.

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that it expects the government to respond to its bill scrutiny reports within two months of their publication.128 The second part of its job description sees the Constitution Committee proactively conducting investigative inquiries into wider constitutional matters. What qualifies as such is not defined in more detail, which is in keeping with the general way in which the mandates of House of Lords committees are framed.129 In the particular case of the Constitution Committee, this appears to fit in well with the notion that the constitution is constantly evolving, and so too are the constitutional topics that warrant its attention. The perform ance of this second duty starts with a yearly evidence session, where leading government officials (such as the lord chancellor or the deputy prime minister) are questioned on a range of constitutional matters. Once the Constitution Committee has selected an issue it considers salient enough to warrant closer scrutiny (for example, inter-institutional relationships in a devolved state130 or the implications of increased government surveillance for the privacy of citizens131), it engages its part-time external legal advisor(s) – usually established professors in constitutional law.132 At the same time, it publishes a call for evidence, which is usually supplemented by the taking of oral evidence from a smaller number of (other) witnesses, such as academics, relevant interest groups or public officials. After intense debates in the Committee, a final (and lengthy!)133 report is drawn up that contains recommendations directed at the government. The government must respond to the Constitution Committee’s report in writing, indicating what steps it intends to take to address the Committee’s comments and criticisms or, alternatively, why it disagrees with the Committee’s findings. Following the government’s response, the report is usually discussed in the House of Lords. In addition to the examples mentioned earlier, inquiries have also dealt with such topics as fixed-term Parliaments,134 referendums in the UK135 and the constitutional implications of using fast-track legislation.136 In terms of its make-up, the Constitution Committee has 12 members, drawn from all the political parties in numbers roughly corresponding to each party’s size. It boasts considerable constitutional expertise and legal knowledge and the Committee has counted amongst its members a former chief justice, a former lord chancellor, former attorneysgeneral and a former leader of the House of Lords. Ten years into its existence, it can be said that the Committee’s influence has grown steadily and ‘it is now difficult to imagine how Parliament operated without the Constitution Committee’.137 As the Committee itself observed in one of its reports: 128 See the letter by the then chair of the Constitution Committee, Baroness Jay of Paddington, to the deputy prime minister dated 7 March 2011, available on the Committee’s website. 129 Constitution Committee, Reviewing the Constitution (n 122) ch 2. 130 Constitution Committee, Devolution: Inter-Institutional Relations in the United Kingdom (HL 2002–03, 28). 131 Constitution Committee, Surveillance: Citizens and the State (volume I) (HL 2008–09, 18-I). 132 The Constitutional Committee was initially against the idea of appointing permanent legal advisors and instead contemplated working with ad hoc external experts. 133 Including annexes, most reports number at least 300 pages – compare this to the average of 9 pages for reports on bills. 134 Constitution Committee, Fixed-Term Parliaments Bill (HL 2010–11, 69). 135 Constitution Committee, Referendums in the United Kingdom (HL 2009–10, 99). 136 Constitution Committee, Fast-Track Legislation: Constitutional Implications and Safeguards (HL 2008–09, 116-I). 137 Statement made by Lord Norton of Louth (at the time member and first chairman of the Constitution Committee) during the seminar ‘From Constitutional Scrutiny to Constitutional Review: Ten Years of the House of Lords Select Committee on the Constitution’, held at the UK Parliament on 25 January 2012 and reported by J Simson Caird, A Report on the United Kingdom Constitution Law Group Seminar (UK Constitutional Law Group, 1 February 2012), http://ukconstitutionallaw.org/blog.

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Over the course of the last decade, the Committee has established a reputation as an authoritative commentator on (and guardian of) the United Kingdom’s constitution. The Committee’s impact within the House has been evidenced by the support for, and acceptance of, a number of our proposals about primary legislation.138

Three explanations have been offered to explain its expanding role, both in articulating constitutional standards and in shaping the way that parliamentary scrutiny of bills and the government is carried out.139 First, the level of constitutional and legal expertise within the Committee’s membership has increased steadily since its inception. Second, while relatively few bills with significant constitutional implications were proposed in the years immediately following the Committee’s establishment, later governments have displayed a greater impetus for constitutional reform and this has served to propel the Constitution Committee into the proverbial spotlight. Third, whereas standards for the purpose of legislative scrutiny were initially lacking (or at least under-developed), the Constitution Committee has now built up a wide range of constitutional standards, criteria and precedents – what Dawn Oliver has termed its ‘legisprudence’140 – and is today able to rely on these in its reports and investigations, thereby enhancing the quality, focus and effectiveness of its scrutiny work.

C. Influence of the Presence of Other Actors in the Constitutional System So far we have considered how and when Parliaments go about upholding the constitution and engage in constitutional interpretation. Parliaments do not operate in a vacuum, however. How is the exercise of their responsibility for protecting and ensuring respect for the constitution influenced by the presence of other State organs?141 Although empirical studies addressing this question are relatively scarce,142 the following general comments nevertheless seem warranted. It was explained in the previous section that Councils of State and chancellors of justice feed into the legislative process by carrying out part of the preparatory work that Parliament should otherwise have done itself. When it comes to the contribution of these non-partisan advisory bodies to the wider parliamentary debate on the constitutionality of legislative proposals, much depends on the focus of the recommendations provided, their intrinsic quality (in turn dependent on how careful, systematic and thorough the scrutiny process has been) and the authority that these recommendations, and their author, enjoy in parliamentary

138 Constitution Committee, Sessional Report 2010–12 (HL 2012–13, 16) paras 3–4. Reports that have had a significant impact include Constitution Committee, Parliament and the Legislative Process (HL 2003–04, 173); Constitution Committee, Fast-Track Legislation (n 136); Constitution Committee, Public Bodies Bill (HL 2010–12, 51). 139 J Simson Caird, ‘Parliamentary Constitutional Review: Ten Years of the House of Lords Select Committee on the Constitution’ [2012] PL 4. 140 D Oliver, ‘Improving the Scrutiny of Bills: The Case of Standards and Checklists’ [2006] PL 219, 43. 141 It should be remembered that there are of course also factors intrinsic to Parliament that have a bearing on whether and how it addresses constitutional questions: for instance, the existence of a parliamentary committee whose mandate has a constitutional component to it (as we have just seen), but also the background and training of MPs (for instance, whether they hold a law degree) may be of relevance here. 142 See eg C Landfried (ed), Constitutional Review and Legislation: An International Comparison (Baden-Baden, Nomos, 1988).

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deliberations.143 In France, for instance, the Council of State ‘has very often voiced reservations on the constitutionality of certain Bills’,144 which in turn have informed debates in the National Assembly and the Senate.145 In contrast, in the Netherlands, we have seen that the Council of State has recognised that the quality of the constitutional dimension of advisory opinions can be improved and that this has, amongst other things, prompted the establishment of an internal constitutional council. This mild self-flagellation notwithstanding, the Dutch government was able to inform the Dutch Senate in 2010 that academic research had shown that it frequently accepts the constitutional, legal and technical comments included in the advisory opinions issued by the Council of State when finalising legislative proposals.146 More relevant for present purposes, the same research found that members of both Houses of the Dutch Parliament often referred to the observations and recommendations of the Council of State during the handling of bills. A large-scale study regarding the acceptance of the constitutional comments included in the opinions of the Belgian Council of State yields a less positive result. From its inception in 1946 until 1999, Belgian Parliaments were found to have heeded the views of their Council of State in 56 per cent of cases.147 The study offers two possible explanations for this figure. First, in a number of instances and following internal debate, the government arrives at a different conclusion from that put forward in the Council of State’s advisory opinion. Parliament is then presented with two different positions on the constitutionality of a particular bills or with alternative readings of the affected constitutional provisions and, in view of the close symbiotic relationship between government and the parliamentary majority, may decide not to follow the Council of State. Second, to the extent that 143 As far as advisory opinions concern government bills that implement coalition agreements or other political agreements, research regarding the Belgian and the Dutch Councils of State has shown that such opinions are more likely to be ignored: Velaers, De grondwet en de Raad van State (n 53); T Borman, De wetgevingsadvisering door de Raad van State in Nederland (Deventer, Tjeenk Willink, 2000); W Voermans and M Bense, ‘Objets trouvés – Een kijkje in de keuken van de wetgevingsadvisering door de Raad van State in België en Nederland’ (2001) 5 Regelmaat 194, 196 ff. 144 L Favoreu, ‘The Constitutional Council and Parliament in France’ in Landfried (ed), Constitutional Review and Legislation (n 142) 81, 105. See also JM Sauvé, ‘L’examen de la constitutionalité de la loi par le Conseil d’État’, presentation delivered on 1 April 2011 at the University of Paris I Panthéon-Sorbonne, who explains that ‘la montée en puissance du contrôle de constitutionalité depuis quatre décennies . . . donne une plus grande sensibilité et un rôle stratégique plus important à la mission consultative du Conseil d’État. Elle confère ce faisant à ce dernier une plus grande responsabilité’ [‘the rise of the power to engage in constitutional review over four decades . . . heightens the sensitivity and gives a more important strategic role for the advisory function of the Council of State. It has conferred on the latter a greater responsibility’]. 145 This does not always mean that the National Assembly and Senate heed the views expressed by the Conseil d’État. For instance, in 2010 the French Parliament adopted legislation generally prohibiting the concealing of the face in public (Loi no 2010-1192, JORF no 0237, 18344, colloquially known as the burqa ban), despite the Conseil d’État having found that such a general prohibition engendered serious legal risks with regard to the respect for fundamental rights and liberties guaranteed under the constitution and by the European Convention on Human Rights (Conseil d’État, ‘Étude relative aux possibilités juridiques d’interdiction du port du voile intégral’, 25 March 2010). 146 Nadere memorie van antwoord, Kamerstukken I 2009/2010, 30 585 no E. The academic research relied on to support this assertion includes: R van Gestel and J Vranken, Kwaliteit van de beleidsanalytische wetgevingsadviezen van de Raad van State, getoetst aan de hand van ex post evaluaties (The Hague, Boom Juridische Uitgevers, 2008); J Broeksteeg et al, Zicht op wetgevingskwaliteit: Een onderzoek naar de wetgevingsadvisering van de Raad van State (The Hague, WODC, 2005); B Dorbeck-Jung, Beelden over de wetgevingsadvisering van de Raad van State: hoe wetgevingskwaliteit gemaakt wordt (The Hague, Boom Juridische Uitgevers, 2003); Ph Eijlander and W Voermans, Evaluatie regeerakkoord 1998 vanuit wetgevingsperspectief (Tilburg, Centrum voor Wetgevingsvraagstukken Tilburg University, 2002). See also the 2010 Annual Report of the Council of State, 103–4, which discusses the effectiveness of its advisory opinions in relation to the right to privacy, where it is observed that if the Council of State clearly indicated that a legislative proposal did not comport with the constitution or the ECHR, the government often accepted this finding. 147 Velaers, De grondwet en de Raad van State (n 53); Velaers, ‘Het preventieve grondwettigheidstoezicht’ (n 49).

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advisory opinions concern government bills that seek to implement political agreements addressing important policy questions, it is often no longer politically desirable (or feasible perhaps) to follow the findings of the Council of State.148 On a separate but related note, recall that the Dutch Council of State does not confine itself to an assessment of the constitutionality of a bill, but also conducts a policy analysis of legislative proposals. Here too it sees a role for the constitution.149 The consequence might be that while the attention of MPs is properly focused on constitutional questions, these are not treated as a separate (preliminary) topic for discussion but used in an instrumental way to debate the political expediency of a specific bill. Independent consultative bodies aside, in many European jurisdictions courts have a central role in ensuring respect for the provisions, principles and values of the national constitution. In fact, several of the constitutional questions mentioned in the preceding pages have, after initial parliamentary consideration, been the subject of constitutional adjudication.150 The presence of a court competent to engage in constitutionality control may influence the position of parliamentarians vis-à-vis the task of upholding the constitution in different ways. According to proponents of the judicialisation thesis, Parliament will seriously consider the rules and principles laid down in the text of the constitution and subsequently clarified and elaborated by the court when it decides on the enactment of new statutes. Importantly, Parliament will exercise voluntary self-restraint to avoid subsequent constitutional censure by the constitutional judiciary.151 Parliament thus appreciates the existence, and relevance, of constitutional standards pertinent to the debate on a particular bill, and proceeds more cautiously during the legislative process than it might otherwise have done. This judicialisation of lawmaking has been observed, for instance, in both France and Germany152 and can be considered beneficial because it should reduce the likelihood of statutes being adopted that offend against the constitution, in particular the provisions guaranteeing fundamental rights. However, the judicialisation phenomenon is not free from criticism. It is said to unduly reorient the parliamentary discourse on the court’s articulation of the meaning of the constitution, thereby detracting from Parliament’s competence or responsibility to put forward its own independent – and possibly different – understanding of the relevant constitutional rules and principles. To illustrate, German commentators have This has been observed in particular as regards issues connected to state reforms. An example is the advice of the Council of State as regards the proposal for an act on mental health care for institutions providing health services and correctional facilities, where it provided an interpretation of Art 6 of the Dutch constitution in the context of its assessment of the (political) desirability of the proposal. 150 This has been the case, for instance, with the question of the use of religious symbols in public (see eg Décision no 2010-613 DC Act prohibiting the concealing of the face in public of the French Conseil constitutionnel) or with regard to the ratification of international treaties, especially European treaties (see eg the judgments of the Polish constitutional tribunal, the French Conseil constitutionnel and the German, Czech, Latvian, Hungarian and Austrian constitutional courts on the Lisbon Treaty, on which see M Wendel, ‘Lisbon before the Courts: Comparative Perspectives’ (2011) 7 European Constitutional Law Review 96). 151 See eg C Tate and T Vallinder, The Global Expansion of Judicial Review: The Judicialization of Politics (New York, New York University Press, 1995); A Stone Sweet, ‘Where Judicial Politics are Legislative Politics: The French Constitutional Council’ (1992) 15 West European Politics 29; A Stone Sweet, Governing with Judges: Constitutional Politics in Europe (New York, Oxford University Press, 2000); R Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge, MA, Harvard University Press, 2004). 152 A Stone Sweet, The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective (New York, Oxford University Press, 1992); K von Beyme, ‘The German Constitutional Court in an Uneasy Triangle between Parliament, Government and the Federal Laender’ in W Sadurski (ed), Constitutional Justice, East and West: Democratic Legitimacy and Constitutional Courts in Post-Communist Europe in a Comparative Perspective (The Hague, Kluwer Law International, 2002). 148 149

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spoken about ‘Karlsruhe astrology’ in this context (Karlsruhe is the seat of the German federal constitutional court) and explained what happens as follows: In the parliamentary stage of the decision-making ex-justices of the Constitutional Court have often been invited to parliamentary hearings, not because they were experts on the substance of the law, but only to hear their opinion on the possible reactions of the Constitutional Court. . . . Over-interpretation of judgments are used to functionalize the Court. Individual phrases of judgments are discussed without evaluating the context and considering whether the phrase was taken from the basic reasons of the judgment or merely obiter dicta which are increasingly invading the Constitutional Court’s judgment.153

Similarly, the courts themselves have not always welcomed this legislative fixation on their case law and the associated adjustment of legislative behaviour. Thus, a former president of the German court has said that ‘This anticipation of a constitutional risk leads to riskaversion and lack of innovation. Anticipatory obedience is harmful to the social imagination and tends to cripple the legislator’s delight in deciding’.154 Conversely, parliamentarians could become indifferent or lethargic about reflecting on the possible constitutional dimension of a bill during the legislative process and confine themselves to reflections on the (political) expediency of enacting a statute. As Tushnet poignantly remarks, ‘Legislators may define their jobs as excluding considerations of the Constitution precisely because the courts are there’.155 For now, it is important to note that the position of courts with constitutional jurisdiction within the wider constitutional order and their relationship with the democratically elected Parliament when it comes to guaranteeing respect for the constitution is one of the evergreens of constitutional law. In the chapters that follow, various aspects that have a bearing on their interaction are explored in more detail. In particular, we shall see that there are avenues open to Parliament when it disagrees with a judicial decision on the constitutionality of a law or with the interpretation of a particular constitutional rule or principle to achieve some modification or reversal of that decision – and show how these avenues have actually been used.156

IV. HEADS OF STATE

Like parliamentarians, in most countries the head of state – presidents and monarchs alike – must recite an oath upon taking office. Such oaths usually give expression to the supremacy of the constitution.157 A number of constitutions require the head of state to promise that she will ‘observe or obey the constitution’.158 Alternatively, other constitutions incorporate an von Beyme, ‘The German Constitutional Court in an Uneasy Triangle’ (n 152) 110. J Limbach, ‘The Effects of the Jurisdiction of the German Federal Constitutional Court’ (1999) EUI Working Paper LAW 99/5, 21 www.cadmus.eui.eu. 155 M Tushnet, Taking the Constitution Away from the Courts (Princeton, Princeton University Press, 1999) 58. 156 See in particular ch 7, section II. 157 But note Hungary’s Fundamental Law, which does not include a reference to constitutional supremacy and provides in Art 9(1) that ‘Hungary’s Head of State shall be the President of the Republic, who shall embody the unity of the nation and be the guardian of the democratic operation of the state organisation’. 158 Belgian constitution, Art 91 (the king must ‘swear to observe the Constitution’); Czech constitution, Art 59(2) (the president must ‘swear to observe its [the Czech Republic’s] Constitution and laws’); Italian constitution, Art 91 (the president must ‘swear an oath of allegiance to the republic and the Constitution’); Dutch constitution, Art 32 (‘The King shall swear or promise allegiance to the Constitution’); Polish constitution, Art 130 (the president must ‘solemnly sear to be faithful to the provisions of the Constitution’). 153 154

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oath charging the head of state to ‘uphold and defend the constitution’.159 The responsibilities of a head of state for upholding the constitution can accordingly be twofold: first, she herself must respect the constitution when exercising the powers and prerogatives bestowed upon her,160 and second, she can act as guardian of the constitution vis-à-vis other institutions, ensuring they do not overstep constitutional boundaries. It should be noted here that the formulation of the oath is not always indicative of the type of constitutional responsibility enjoyed by heads of state: those that swear to observe the constitution may also have the opportunity to examine the behaviour of other state organs for constitutional compatibility. Like Councils of State and parliamentarians, heads of state too must often first construe the meaning of relevant constitutional provisions, before they can decide whether their own behaviour, or that of other actors, comports with the constitution. Some of the most common occasions for heads of state to do so will be explored in what follows. Let us first consider their role in relation to the other institutions. In practice, this tends to be the legislature. It is usually the case that the signature of the head of state is required before a text can become law. In several countries, the constitution gives the head of the state the right to return the act to Parliament for reconsideration, including when she has reservations about the constitutionality of the text placed before her.161 For instance, the Estonian president may refuse to sign an adopted act and return it to Parliament for a new debate and decision, with a statement of her reasons.162 These often include the finding that the act is not compatible with the constitution. Should Parliament readopt the act in its original form, the president may send it to the constitutional review chamber of the supreme court for an assessment of its constitutionality. The Estonian president thus has two means at her disposal to communicate her disquiet about the constitutionality of an adopted but not yet promulgated act: first by insisting that Parliament reconsider the matter, followed if need be by a request for judicial scrutiny. The president uses her competences in this respect with moderation.163 An example can be found in box 1.

159 German Basic Law, Art 56 (the federal president must swear to ‘uphold and defend the Basic Law’); French constitution, Art 5 (‘The President of the Republic shall ensure due respect for the Constitution’); Spanish constitution, Art 61 (‘The King will swear to obey the Constitution and the laws and ensure that they are obeyed’). 160 This is explicitly laid down in, for example, the Polish constitution, Art 126(3) (‘The president shall exercise his duties within the scope of and in accordance with the principles specified in the Constitution and statutes’). 161 Czech constitution, Art 50; French constitution, Art 10; Italian constitution, Art 74; Finnish constitution, s 77; Polish constitution, Art 122(5). Parliament must reconsider the bill and if a (super-)majority of MPs again approve the bill, it must be promulgated (Czech constitution, Art 50, requiring an absolute majority of votes of all deputies to be in favour; Italian constitution, Art 74, providing that ordinary voting requirements apply; Finnish constitution, s 77, stating that ordinary voting requirements apply and that no presidential ratification is required; Polish constitution, Art 122(5), requiring a three-fifths majority vote of at least half the statutory number of deputies). 162 Estonian constitution, s 107; Constitutional Review Court Procedure Act, s 5. 163 This happened, for example, in relation to the non-profit associations act (judgment of the constitutional review chamber of 10 May 1996, 3-4-1-1-96) and in relation to the temporary procedure for remuneration of members of the Riigikogu act (judgment of the constitutional review chamber of 23 February 2009, 3-4-1-18-08). In both cases the constitutional review chamber upheld the president’s petition and confirmed that the acts were indeed unconstitutional.

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Box 1 Estonia - § 107 Constitution Decorations Act On 15 December 1993, the Estonian Parliament adopted the Decorations Act, § 9(2) of which stipulated that the president would confer decorations on the basis of a recommendation made by the committee on decorations. The president was of the opinion that this provision contravened § 78(15) of the constitution, which grants him the right to confer state awards (including decorations), without subjecting this right to any further conditions. He accordingly refused to proclaim the act. When Parliament, after reconsideration, again passed the act in its original form, the president filed a petition for a declaration of unconstitutionality with the constitutional review chamber of the supreme court. The court confirmed the president’s doubts about the constitutionality of the Decorations Act:164 According to § 65(12) of the Constitution the Riigikogu [Estonian Parliament] is competent to establish state awards. Consequently, establishment of the procedure for recommendation for and bestowal and wearing of decorations by the Riigikogu is in conformity with the Constitution. This procedure must be in conformity with § 78(15) of the Constitution, which provides that the President of the Republic shall confer state awards. . . . According to § 9(2) of the Decorations Act, . . . the Committee on decorations created by the Government of the Republic would decide on the bestowal of awards through the preliminary selection, by not making relevant propositions to the President of the Republic. The Government of the Republic and the Committee it has created do not have the right to decide questions which have been placed within the competence of the President of the Republic by the Constitution. According to the Decorations Act the President of the Republic may also make proposals for the bestowal of decorations to the Committee on Decorations. But the Committee on Decorations, on the basis of § 9 of the Act, has the possibility to reject such a proposal and not to submit a proposition, necessary for the bestowal of decorations, to the President of the Republic. Thus, the President of the Republic can not decide at his or her discretion to bestow decorations on individuals who, pursuant to a relevant Act, could receive state awards. It follows from the above that § 9(2) of the Decorations Act is in conflict with § 78(15) of the Constitution.

It is interesting to contrast the Estonian model with the relevant provision of the Hungarian Fundamental Law, which distinguishes between two scenarios. When the president disagrees with (part of) an adopted but not yet promulgated act, she may return it to Parliament with her comments.165 Parliament must then debate the act anew, duly considering the president’s observations, and may readopt it, thereby breaking the presidential veto. Alternatively, if the president harbours doubts about the constitutionality of the act, she must submit it to the Judgment of the constitutional review chamber of 18 February 1994, III-4/A-3/94. Hungarian Fundamental Law, Art 6(5). The president should act within five days of having received the act.

164 165

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constitutional court for review (unless Parliament itself had already done so prior to presenting it to the president to be signed into law).166 If the court rules that the contested provisions are unconstitutional, the act must be returned to Parliament so it can make the necessary amendments.167 Otherwise, the president is obliged to promulgate the law without delay. In a judgment delivered under the pre-2012 constitution, which similarly provided for these presidential control powers, the constitutional court found that the president could not use both veto mechanisms sequentially in relation to the same act.168 To decide otherwise, said the constitutional court, would mean that the president would not function as a political and legal counterbalance to the legislative power, but rather become an unjustified limit on that power. A number of judges dissented from this finding, arguing amongst other things that when the act is amended during the parliamentary process of reconsideration, the president should be able to challenge it before the constitutional court. Although the first veto power has been conceived to govern situations where president and Parliament do not see eye to eye as regards a certain act for political reasons, it has in the past also been used by the former when she disagreed with the latter as to the compatibility of the act with the constitution. In such instances, constitutional issues were the subject of a dialogue between the president and Parliament. An example is the act promulgating an agreement between Hungary and the United States on enhancing cooperation in preventing and combating crime, further explained in box 2 immediately below. Box 2 Hungary – Art 6(5) Constitution Law promulgating the agreement between Hungary and the United States on enhancing cooperation in preventing and combating crime The Hungarian Parliament sought to implement an agreement concluded with the US government intended to enhance cooperation between the two countries to prevent and combat crime. Two types of cooperation were contemplated. First, the agreement would allow Hungarian and US authorities to conduct online searches in each other’s fingerprint and DNA databases, with the caveat that the authorities in the other state should not be able to directly identify individuals on the basis of the searchable data. If the anonymous search yielded a data match, the supply of further personal data would be possible if national law so allowed. Second, the authorities in both countries would be able to exchange personal data (such as names, date and place of birth, passport number) in accordance with national law, including when there was reason to believe that the individual was, or could become, involved in criminal activities, including participation in an organised criminal association. The speaker of Parliament sent the law to the president for promulgation. He refused, 166 ibid, Art 6(4). In Poland, France and Portugal, the president may also refer legislation presented to her for signature to the constitutional court for review (Polish constitution, Art 122(3); French constitution, Art 61; Portuguese constitution, Art 278). Similarly, in Ireland, the president can – after consultation with the special Comhairle Stáit (Council of State), which is charged with aiding and advising the president in the exercise of her powers – refer adopted legislation that she believes is repugnant to the constitution to the supreme court for assessment before signing (Irish constitution, Art 26). 167 Hungarian Fundamental Law, Art 6(7). 168 Decision 62/2003 (XII.15) AB of 5 December 2003.

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however, relying in particular on then Article 59 of the constitution, which guarantees the right to protection of personal data (now laid down in Article VI of Hungary’s Fundamental Law): In the Republic of Hungary, Act LXXXV of 1999, on criminal records and on official crim inal certificates (Bnyt.) specifies how fingerprints and DNA profiles are registered. [The president outlined that, according to the relevant laws, fingerprints and DNA profiles from convicts and those found at the crime scene would be stored for a minimum of three years or even for an unlimited duration in cases where there was no statute of limitations.] This broad-based regulation of Hungarian fingerprint and DNA registration and storage rules – particularly regarding the storage duration – deserves constitutional examination in its own right, but that is not the subject of this letter. . . . In addition to the fact that – given the prevalent Hungarian legislative environment – this could be a disproportionate restriction of the right to the protection of personal data as guaranteed by Paragraph 59, Section (1) of the Constitution, accessing this data is not absolutely necessary to fulfil the purposes of the Agreement. Multiple components of the database registered on the basis of Bnyt. are clearly of no interest to the authorities of the United States in their actions to prevent or combat crimes in the sense of the Agreement. In my view, Parliament adopted the Act containing the Agreement before altering the relevant legislative environment, namely before bringing the aforementioned provisions of Bnyt on the dactylographic and photographic databases into harmony with Paragraph 59, Section (1) of the Constitution, with Avtv. [Act on the protection of personal data and on the availability of data of public interest] and with the purposes of the Agreement. . . . I do not agree with the adoption of the Act for the reasons stated above. Therefore, I call upon Parliament to adopt the Act only after properly regulating in Bnyt. the scope of personal data which will become accessible under the Agreement, with due respect to Paragraph 59, Section (1) of the Constitution and the provisions of the Avtv.169

As it happened, Parliament voted to confirm the act in its original form and the agreement between the US and Hungary could thus enter into force without any adjustments being made. In addition, heads of state will also have to determine the proper meaning of constitutional provisions governing their own powers and prerogatives. One such power is the right of assent to legislation, provided for in a number of constitutions.170 This competence is closely linked to the rules just discussed, yet must be distinguished as here the constitution mandates the head of state to sanction and sign laws passed by Parliament, but does not provide her with a right to return the text to Parliament. Should such provisions be construed to mean that the head of state is obliged to confirm each and every law placed before her, or can she still exercise discretion and refuse the royal or presidential certification? This question prompted a constitutional reform in Luxembourg in 2009.171 Luxembourg is 169 Letter from the president of the Republic of Hungary to the speaker of Parliament of 20 October 2008, II-1/04546-1/2008. 170 See eg Spanish constitution, Art 91; Belgian constitution, Art 109; Danish constitution, Art 22; Dutch constitution, Art 87; German Basic Law, Art 82(1). 171 See L Frieden, ‘Luxembourg: Parliament Abolishes Royal Confirmation of Laws’ (2009) 7 International Journal of Constitutional Law 539.

40 THE ROLE OF NON-JUDICIAL ACTORS

an old constitutional monarchy, with the grand duke as its head of state. One of his constitutional competences is to sanction and promulgate laws.172 In late 2008, Parliament was on the verge of adopting a law that would, under conditions, permit euthanasia and medically assisted suicide. The grand duke informed the government that he opposed the law on moral grounds and would therefore refuse the ducal assent. According to the government’s reading of the constitution, however, the grand duke would have no choice in the matter and was constitutionally mandated to affix his signature to the text. However, to accommodate the grand duke’s concerns, the government suggested that his objections be included as an appendix to the law. When the grand duke persisted in his refusal, the government proposed to amend the constitution to abolish the ducal assent to laws. This solution was accepted by all MPs and the grand duke himself, and the constitution now prescribes that the grand duke must promulgate laws within three months after the vote of Parliament.173 A different approach prevails in Germany, where Article 82 of the Basic Law provides that the federal president shall certify and promulgate laws adopted in accordance with the provisions of the Basic Law. Article 82 has been understood by the incumbents of the presidential office as giving them the power to refuse to sign bills into law because of constitutional reservations.174 These reservations may stem from a breach of the Basic Law’s more procedural provisions – think of those governing the legislative process or regulating the distribution of competences between the federation and the Länder – but may also be caused by a perceived violation of substantive constitutional rights and principles. To date, successive German federal presidents have on eight occasions declined to sign and promulgate laws due to concerns regarding their constitutionality.175 Leaving the realm of the legislative process, heads of state also enjoy other competences that may necessitate constitutional interpretation. For instance, they are often vested with the power to grant pardons176 or confer honorary distinctions.177 As the Estonian case of the Decorations Act shows, the question here is typically whether the head of state has independent discretion in the use of this power. For an example of a less ceremonial competence, France offers a good illustration. Article 16 of the French constitution entitles the president to take the measures required ‘Where the institutions of the Republic, the inde Luxembourg constitution, Art 34. A somewhat similar situation occurred in Belgium in 1990, where royal assent is also required for a law to enter into force. The king announced that his conscience would prevent him from signing a law that permitted abortion if the woman and her doctor decided she was in a ‘state of distress’. The Belgian government resolved the impending constitutional crisis by a creative use of then Art 79 of the constitution. This clause was drafted to cover eventualities in which the monarch was incapacitated by illness or insanity and allowed for the king’s powers to be assumed by the cabinet. On 4 April 1990, the government declared the king unable to reign and promulgated the abortion law, which was duly published in the official gazette. It then called back the Chamber of Deputies and the Senate from their Easter vacation for a special parliamentary session on 5 April 1990, where the king was declared fit to govern the country again. 174 This interpretation of Art 82 was confirmed by the Bundesverfassungsgericht in BVerfG 9, 34 (1972), declaring that ‘With the act of promulgation, the content of the law and – by virtue of the competence of the federal president to verify this (‘Prüfungskompetenz’) – the constitutionality of the law in the legislative procedure is finally determined’. 175 Information provided on the website of the German federal president, www.bundespraesident.de/EN/Roleand-Functions/WorkInGermany/OfficialFunctions/officialfunctions-node.html. Most recently, Horst Köhler refused to certify three laws on constitutional grounds during his presidency, which ran from 2004 until 2010: the Air Safety Administration Law in October 2006, the Consumer Information Law in December 2006, and the Access Impediment Law in November 2009. 176 eg Italian constitution, Art 87; French constitution, Art 17; German Basic Law, Art 60(2); Finnish constitution, s 58(3); Czech constitution, Art 62(g); Polish constitution, Art 138. 177 eg Italian constitution, Art 87; Belgian constitution, Art 114; Czech constitution, Art 63(h); Polish constitution, Art 139. 172 173

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pendence of the Nation, the integrity of its territory or the fulfilment of its international commitments are under serious and immediate threat, and where the proper functioning of the constitutional public authorities is interrupted’. In order to decide when a threat can be regarded as serious and immediate or when the authorities can no longer be said to perform their functions, a construction of the relevant parts of Article 16 is necessary, first and foremost by the president. At the same time, the president’s powers under this provision are neither unlimited nor unchecked. The president must consult the prime minister, the presidents of both Houses of Parliament and the Conseil constitutionnel. Following a 2008 constitutional amendment, the president of either House of Parliament or 60 MPs may request that the Conseil constitutionnel decide on the merits of the continued application of Article 16 after it has been used for 30 days, and must carry out such an examination of its own motion after 60 days. The provision was invoked by President Charles de Gaulle during the Algerian crisis, as recounted in box 3.

Box 3 France – Art 16 Constitution Algiers Putsch On the afternoon of 21 April 1961, retired French army generals took control of the city of Algiers, as the first stage of an intended coup d’état to overthrow President Charles de Gaulle. The president responded by adopting a decision invoking Article 16 of the constitution on 23 April: The President of the Republic, In view of the Constitution and in particular Article 16, After consultation with the prime minister, the president of the Senate and the president of the National Assembly, After consultation with the Conseil constitutionnel and in view of its reasoned opinion of April 23 1961, Decides: Art 1 – Application of article 16 of the Constitution is declared. Art 2 – The present decision shall be published in the official journal of the French Republic. It enters into force immediately.

The president was somewhat more articulate about the reasons prompting his decision to invoke Article 16 in a famous televised address to the nation that same evening: An insurrectionary power has established itself in Algeria by a military pronunciamiento. . . . In the name of France, I order that all measures, I say: all measures, be taken to resist these men, until we defeat them. I prohibit every Frenchman, and first of all each solider, to carry out any of their orders. . . . In the face of the misfortune which hangs over the fatherland and the threat which weighs on the Republic, having taken advice from the Conseil constitutionnel, the prime minister, the president of the Senate, the president of today, I will take, directly if necessary, the measures that appear to me to be required by the

42 THE ROLE OF NON-JUDICIAL ACTORS

the National Assembly, I have decided to invoke article 16 of our Constitution. Beginning circumstances. Hereby, I reassert my authority as the holder of the French republican legit imacy conferred by the Nation; [legitimacy] that I will maintain whatever happens until the end of my mandate or unless either life or strength fail me, and I will take the necessary steps so that it lives on after me.

While the putsch was quelled after five days, the president did not renounce his emergency powers until some five months later, on 29 September 1961. As one commentator said: ‘the experience underlined disquietingly that the sole guarantee against its [Article 16] abuse is the conscience of the President’.178 The absence of a ‘temporal proportionality’179 to the use of Article 16 was taken up by the consultative committee for the revision of the constitution in 1993: Le comité n’a pas jugé nécessaire une modification des conditions d’application de l’article 16 ni des pouvoirs que cet article reconnaît au Président de la République. En revanche, il lui a paru indispensable que soit précisé comment se termine la période d’application de cet article: il appartiendrait normalement au Président de la République de demander au Conseil constitutionnel de constater que les conditions exigées par l’application de cet article ne sont plus réunies. Toutefois, le comité n’a pu écarter l’éventualité d’un exercise abusif de ce pouvoir du fait d’une trop longue durée. Pour tenir compte de cette hypothèse, il propose que le Président du Sénat et le président de l’Assemblée nationale, puissent également, par une demande conjointe, saisir le Conseil constitutionnel aux mêmes fins. . . . Enfin, pour éviter que les mesures autorisées par l’article 16 soient prises ou maintenues en vigeur trop longtemps après la fin de l’application de cet article, le comité propose que le Conseil constitutionnel, quand il constate la fin de cette application, puisse préciser à partir de quelle date chacune de ces mesures ne pourra plus être mise en œuvre.180

The committee’s suggestions were taken up in the grand modernisation of the French constitution in 2008: a sixth paragraph was added to Article 16, prescribing the involvement of the Conseil constitutionnel as a check to prevent presidents unnecessarily clinging to their emergency powers.181

M Harrison, ‘The French Experience of Exceptional Powers: 1961’ (1963) 25 Journal of Politics 139, 155. See J Gicquel and J-E Gicquel, Droit constitutionnel et institutions politiques, 24th edn (Paris, Montchrestien, 2010) 593. 180 Rapport remis au Président de la République le 15 février 1993 par le Comité consultatif pour la révision de la Constitution (Comité Vedel), Journal officiel de la République Française 16 février 1993, 2540. [Translation: ‘The committee has not considered it necessary to modify the conditions for the application of Article 16 or the powers that this article grants to the president of the republic. However, it appears indispensable to it that it is clarified how the period during which this article is applicable comes to an end: it would normally be for the president of the republic to request that the Conseil constitutionnel observe that the conditions required for the application of this article no longer exist. However, the committee could not rule out the possibility of an abusive exercise of that power due to the period of time being too long. To address this hypothesis, it proposed that the president of the Senate and the president of the National Assembly may also, by means of a joint request, seize the Conseil constitutionnel for the same purpose. . . . Finally, to avoid the situation where the measures authorised by Article 16 are taken or maintained in force for too long after the expiration of the application of that Article, the committee proposes that the Conseil constitutionnel, when it notes the expiration of this application, can specify the date from which each of these measures can no longer be implemented.’] 181 Constitutional law 2008-724 of 23 July 2008 concerning the modernisation of the institutions of the Fifth Republic, Art 6. 178 179

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Finally, it should be acknowledged that many constitutions contemplate a role for the head of state in dissolving Parliament and ordering (premature) parliamentary elections,182 and installing and dismissing the government.183 The relevant constitutional provisions may on their face appear to allow for considerable latitude in the exercise of these prerogatives. For example, the Czech constitution prescribes that the president ‘appoints and recalls the Prime Minister and other members of the government and accepts their resignations’.184 In reality, however, the room for an independent exercise of such powers, and hence for the head of state to decide how the applicable constitutional provisions should be construed, is very limited. This is due in part to the presence of constitutional constraints, typically in the form of other actors that must be consulted or are otherwise involved, and in part due to political factors, such as the outcome of parliamentary elections.185

V. THE PEOPLE

Public discourse and public opinion should not be underestimated as factors of influence in shaping the behaviour of other institutions in various ways, including how they conceive of their duty to protect and enforce constitutional provisions and principles. This pen ultimate section will accordingly consider the role of the people as regards upholding the constitution and the process of constitutional interpretation.186 As a starting point, it should be acknowledged that law is often a translation of reality. It is normal for State organs to use law and legal language when performing their duties and structuring their engagement with other actors, but this is usually different for the general public. When the people participate in debates on constitutional issues – like whether same-sex marriage or euthanasia should be possible, or how to arrange the relationship between organs belonging to the political branches of government – they often do so 182 See eg Belgian constitution, Art 46; French constitution, Art 12; Polish constitution, Art 98(2), (4) and (5); Irish constitution, Art 13(2)(1) and (2). 183 Consider eg Belgian constitution, Art 96; French constitution, Art 8; Polish constitution, Art 154. 184 Czech constitution, Arts 62 and 68. 185 Thus, in France, one of the few European countries where the president has a direct electoral mandate, a past incumbent of the office (François Mitterrand) has said: ‘On ne pose pas de conditions au président de la République. Il nomme qui il veut, mais il doit se placer en conformité avec la volonté populaire’ [translation: ‘No conditions are imposed on the president of the republic. He appoints whom he wants, but he must act in accordance with the popular will’]: reported in Gicquel and Gicquel, Droit constitutionnel (n 179) 579. 186 The role of the people in relation to the adoption of a new constitution or constitutional amendments will not be discussed here. As regards the former, consider for instance the opportunities for public participation in the preparation of the new Icelandic constitution and the important role played by social media in this respect: see H Thorgeirsdóttir, The Icelandic Constitutional Experiment, Report for the Venice Commission of 23 September 2011 (CDL-JU(2011)017) and the Icelandic Act 90/2010 on a constitutional assembly, particularly Art 20 thereof. Jurisdictions where the adoption of constitutional amendments requires popular approval by means of a referendum include Ireland (Irish constitution, Art 46(2)); France (French constitution, Art 89, unless the president submits the amendment to Parliament in joint session for approval); Italy (Italian constitution, Art 138(2), if a request to hold a popular referendum is made by one-fifth of either House of Parliament, by 500,000 electors or by five regional councils, provided that the amendment has not been passed by a two-thirds majority vote in each House of Parliament); Spain (Spanish constitution, Art 167(3), upon a request by one-tenth of MPs of either House of Parliament); the Czech Republic (Czech constitution, Art 10a(2), insofar as it concerns the transfer of competences to an international organisation and the relevant act itself specifies that a referendum shall be held); and Poland (Polish constitution, Art 235(6), for amendments of certain parts of the constitution and upon request by designated bodies). A more general discussion, extending beyond Europe, can be found in J Blount, ‘Participation in Constitutional Design’ in Ginsburg and Dixon (eds), Comparative Constiutional Law (n 88).

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without framing the social or political issues at stake in constitutional terminology or translating these issues into legal ones.187 As such, while it may be said that the constitution is made, interpreted and developed every day, the language of the constitution is not always used. Exactly how public discourses on constitutional issues affect the protection of the constitution and shape the interpretation of constitutional rules, principles and values is a question that requires thorough empirical research. This complex matter is, regrettably, beyond the scope of this book. However, it is likely that public discourse helps to make constitutional issues salient and can thereby induce other actors to deal with these and articulate their position on the matter. For instance, parliamentarians typically have a strong incentive to (appear to) listen and be responsive to the concerns and claims of their constituents with a view to doing well in the next election. This can include the decision to initiate the process to formally amend the constitution, as has happened in Italy. Since 2010, the Italian constitution has been modified on 14 occasions. One commentator notes: [O]ne can observe how [these amendments] have been influenced by powerful changes in public opinion, which forced the parties in Parliament to approve some constitutional adjustment. Between 1989 and 1993, three successful amendments out of four were in answer to widespread criticism of the grip that political parties (including both majority and opposition parties) had on public institutions. To submit the members of the Cabinet to the jurisdiction of the ordinary courts (article 96), to allow public prosecutors to proceed against a Member of Parliament without the need to obtain authorisation (article 68), to make amnesty as such nearly impossible (article 79): these were all measures passed within the frame of the trend against the overwhelming power of parties’ elites, against the illegal financing of their operations and the lethal mixture of corruption, inefficiency and the lack of responsiveness of the political class.188

Public discourse and societal changes can also be a catalyst for the development and modification of the courts’ constitutional case law. In Europe, courts with constitutional jurisdiction commonly lack the ability to select which cases to hear and decide on their merits, which means that to the extent that individuals have access to the courtroom, they can perform an agenda-setting role by selecting constitutional issues on which the courts should speak and by asserting new constitutional meanings.189 Scholars studying social movements and cause lawyering have accordingly argued that courts can be a prominent venue for forging constitutional change.190 Further, most European courts with constitutional jurisdiction acknowledge that the constitution is a living document and consider changes in society and public opinion when interpreting constitutional provisions, values and principles. For example, when asked whether life imprisonment was compatible with the right to human dignity, the German Bundesverfassungsgericht found that: The same can also be said about the way parliamentarians sometimes approach social or political issues. C Fusaro, ‘Italy’ in D Oliver and C Fusaro (eds), How Constitutions Change: A Comparative Study (Oxford, Hart Publishing, 2011) 219. 189 The possibilities for individuals to invoke the jurisdiction of the constitutional court, either directly in the context of abstract constitutionality challenges and constitutional complaints or indirectly by asking the ordinary courts to raise constitutional questions by means of the preliminary reference procedure, are explored in ch 3, section III-A(i)(c), section III-B and section III-A(ii) respectively. 190 See eg J Balkin, Constitutional Redemption: Political Faith in an Unjust World (Cambridge, MA, Harvard University Press, 2011); D NeJaime, ‘Constitutional Change, Courts and Social Movements’ (2013) 111 Michigan Law Review 877; M Ziegler, ‘Framing Change: Cause Lawyering, Constitutional Decisions and Social Changes’ (2010) 94 Marquette Law Review 263; R Siegel and R Post, ‘Popular Constitutionalism, Departmentalism, and Judicial Supremacy’ (2004) 92 California Law Review 1027. 187 188

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Neither original history nor the ideas and intentions of the framers are of decisive importance in interpreting particular provisions of the Basic Law. Since the adoption of the Basic Law, our understanding of the content, function, and effect of basic rights has deepened. . . . Current attitudes are important in assessing the constitutionality of life imprisonment. New insights can influence and even change the evaluation of this punishment in terms of human dignity and the principles of a constitutional state.191

Public opinion and public discourse can also constrain State organs and their room for manoeuvre under the constitution. Georg Vanberg has investigated the impact of public support for the German Bundesverfassungsgericht on the behaviour of the judges themselves and on that of members of the German Parliament.192 He found that the desire to avoid a public backlash is a prominent factor in inducing parliamentarians to heed the court’s judgments.193 As regards the impact of public opinion on the judicial interpretation of constitutional provisions and principles, several of the judges interviewed by Vanberg commented on the need for their position on the meaning of the constitution to be aligned with the views of the public at large. According to one of them: There cannot be a long-running divergence between the views of the public at large and the jurisprudence of the court. The court must be carried by a consensus of the citizens . . . it’s important to take care that a decision does not hit on a weak spot in public consensus . . . The Crucifix verdict [holding that it was unconstitutional to put up a cross or crucifix in public schools], for example, just completely misread public opinion in Bavaria. Every citizen has certain ideas about what the Basic Law is supposed to guarantee, and you can’t depart too far from that. The decisions have to be understandable and acceptable.194

There are many factors that have a bearing on the scope, vigour and quality of public discourse on constitutional issues and its effects vis-à-vis State organs. Think of the existence of a strong and vocal civil society195 or the opportunities available to the public at large to participate directly in the exercise of political power – such as citizens’ initiatives, referendums on ordinary legislation fleshing out constitutional provisions, or elections in which the position of political parties in relation to a constitutional question influences the way people cast their vote.196 Further, several countries provide for a defender or commissioner

191 BVerfG 45, 187 (1977) Life Imprisonment (translation from D Kommers and R Miller, The Constitutional Jurisprudence of the Federal Republic of Germany, 3rd rev edn (Durham, NC, Duke University Press, 2012) 365. 192 G Vanberg, The Politics of Constitutional Review in Germany (New York, Cambridge University Press, 2005). 193 ibid, ch 5. 194 ibid, 126. 195 This may in turn be dependent on the presence of NGOs with a constitutional focus and a certain civicmindedness among the people to respect and uphold the Rule of Law and the constitution which, from a more theoretical perspective, can be linked to notions of constitutional patriotism (usually associated with Jürgen Habermas) and grassroots constitutionalism. On the former concept, see eg J-W Müller, ‘On the Origins of Constitutional Patriotism’ (2006) 5 Contemporary Political Theory 278; J-W Müller and KL Scheppele, ‘Constitutional Patriotism: An Introduction’ (2008) 6 International Journal of Constitutional Law 67. On the latter notion see eg G Skapska, ‘Paradigm Lost? The Constitutional Process in Poland and the Hope of a “Grassroots Constitutionalism” ’ in M Krygier and A Czarnota (eds), The Rule of Law after Communism: Problems and Prospects in East-Central Europe (Dartmouth, Ashgate, 1999). 196 For instance, Art 21(1) of the German Basic Law conceives of political parties as an instrument to channel, and assist in the formation of, the public’s views (‘Political parties shall participate in the formation of the political will of the people’), and see similarly Art 6 of the Spanish constitution (‘Political parties are the expression of political pluralism; they contribute to the formation and expression of the will of the people and are a fundamental instrument for political participation’). On this role of political parties from a comparative perspective, see V Gasca, The Individual and Political Participation (Oxford, Hart Publishing, 2014).

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of rights in their constitution.197 This body is a sort of constitutional ombudsman, entrusted with the task of ensuring that public authorities duly respect individuals’ rights and freedoms as enshrined in the constitution.198 For this purpose, the defender of rights can receive petitions from persons who may thereby seek to vindicate their view on the interpretation or application of the relevant statute, although she may also act on her initiative against perceived infringements by public authorities of the constitutional provisions guaranteeing fundamental rights.199 The role of the media is another factor to consider in understanding the influence of constitutional public discourse on the behaviour of State organs. The media can be a powerful medium in raising public awareness of and framing constitutional issues. This includes channelling and commenting on the views of State organs on such issues and seeking to elicit the formation of, and giving expression to, public opinion. Some examples may be useful to illustrate these points. In France, various presidents and prime ministers have sought to expound their views in the media on their own constitutional role and their relationship with each other. This has happened notably during periods of ‘co-habitation’, when the president and prime minister are from different political parties. In a 1993 televised interview, president Mitterrand of the Parti socialiste asserted that he wielded autonomous powers, in particular in the areas of foreign affairs and defence: I intend to adhere to the rules of public life . . . In a parliamentary Republic [like France] . . . the President of the Republic possesses autonomous authority. This authority is recognised by texts and custom, especially in the domain of foreign affairs and defence. This is what I will do; [and] much less in the domain of domestic, economic, and social policy, since these areas are generally a matter for statutes and statutes are enacted by the Parliament.200

Later that same year, Prime Minister Balladur of the Rassemblement pour la République instead claimed that the exercise of executive powers in those fields required collaboration between himself and the president: [T]he totality of internal economic and social policy, in all domains, is the responsibility of the Government and of the new [parliamentary] majority. In the areas of foreign and defence policy, our Constitution, although somewhat complicated in its application . . . establishes some sort of sharing; it is what is called “shared power”. [Interviewer: No longer “reserved” to the President?] It is shared in fact because, I remind you, that the Prime Minister is responsible for our national defence under the Constitution, and that the Government has the power to negotiate and to conclude international agreements, as does the President of the Republic.

197 This is so in Finland (Finnish constitution, s 109 and recall also the earlier discussion of the chancellor of justice (see II.B above)); France (French constitution, Art 71-1); Hungary (Hungarian Fundamental Law, Art 30); Poland (Polish constitution, Arts 208-12); and Spain (Spanish constitution, Art 54). In Estonia the chancellor of justice performs this duty (see section II-B above). 198 This body should accordingly be distinguished from the institution of the ombudsman, tasked with investigating individual complaints about maladministration perpetrated by public officials. Such ombudsmen exist in many European countries and within the EU institutional system. 199 In some legal systems, the defender of rights can also judicially challenge the constitutionality of legislation on fundamental rights grounds. 200 Excerpt taken from M Rogoff, French Constitutional Law: Cases and Materials (Durham, NC, Carolina Academic Press, 2011) 75.

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With respect to foreign affairs and national defence, the President of the Republic has the right to be informed about everything, as does the Prime Minister, and when there are important questions, they decide together, and nothing of importance can be decided without one or the other or against the opposition of one or the other.201

In the Netherlands, there has been an ongoing debate on the position of the monarch within the constitutional system and the nature of her powers.202 In 2011, the far-right Freedom Party informed a Dutch newspaper that it was preparing a bill to amend the constitution to abolish the monarch’s official membership of several bodies – including the Council of State – and eliminate her role in the process preceding the formation of a new government.203 The proposal was duly presented in late summer, around the same time that the Labour Party unveiled its own plans to curb the political role of the monarch.204 Both proposals received considerable attention in the media and prompted the Dutch public broadcaster to commission an opinion poll to uncover the views of the general public on several core questions regarding the existence and functioning of the monarchy. The results were presented during a special television show, where a range of well-known Dutch figures from various backgrounds gave their opinions on the future of the monarchy and its place in society. This televised debate took place just before the annual parliamentary deliberations on the government’s political program for the coming year, where political parties were expected to discuss their positions on the design and conceptualisation of the Dutch monarchy. While a number of opposition parties indeed indicated that they would prefer the monarch to be the ceremonial head of state without any substantive powers, the then government and majority parties asserted that they were in favour of retaining the constitutional status quo, with the result that the reform proposals failed to muster the necessary support to warrant further consideration at that time.205 It is interesting to observe that various courts with constitutional jurisdiction and individual judges have also begun to engage with the media to inform the public discourse about constitutional issues. For instance, the first president of the Hungarian constitutional court, László Sólyom, made regular radio appearances to clarify and defend the rulings of his court. This happened, for instance, in the wake of public criticism of a judgment striking down a law that would have retroactively modified the statute of limitations for certain ibid. The issues that are being debated concern in particular Art 42 of the Dutch constitution, according to which the government ‘shall comprise the king and the ministers’, and Art 74(1), which provides that the ‘king shall be president of the Council of State’ and outlines the part played by the queen in the process of government formation (when she consults with the leaders of the political parties after elections and subsequently appoints an ‘informateur’ or ‘formateur’ who is responsible for investigating possible coalitions or actually forming the new cabinet respectively) and government crises. For an overview of core features of Dutch constitutional law in English, see L Besselink, Constitutional Law of the Netherlands (Nijmegen, Ars Aequi, 2004). For an academic treatment of the future of the monarchy, see D Elzinga (ed), De Nederlandse constitutionele monarchie in een veranderend Europa (The Hague, Kluwer, 2006). 203 Editors, ‘PVV: Beatrix uit regering’, Algemeen Dagblad (Amsterdam, 20 April 2011); B Hinke, ‘Wetsvoorstel PVV om koningin uit regering te zetten “is in de maak” ’, NRC (Rotterdam, 20 April 2011). 204 J van den Berg et al, ‘Verbindend koningschap in de republiek – Advies van de commissie ad hoc “Actualisatie toekomst Koningshuis” van de Partij van de Arbeid’ (Amsterdam, 24 August 2011). 205 P Zantingh, ‘PvdA-plan over Donner sneuvelt – ceremonieel koningschap van tafel’, NRC (Rotterdam, 11 October 2011). In 2012, Parliament voted to curb the role of the monarch in the process of government formation. In the past the monarch would, after consulting with several key political figures, commission one or more persons to form a new cabinet (or investigate coalition options). In the future, Parliament will decide on these appointments (new Art 139a of Parliament’s rules of procedure) and did so for the first time following the 2012 parliamentary elections. 201 202

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crimes committed during Communism,206 with Sólyom explaining his decision to do so as follows: In the case of such an important judgment the Constitutional Court must step out in front of the public and once again explain clearly what is the substance of this decision and its significance . . . But I want to emphasize that this decision of the Constitutional Court does not place a formal legalistic attitude against the sense of justice, but one form of morality against another morality. Here I am thinking that it is true that moral justice demands that the criminal is punished, but moral justice also demands that the criminal receives his punishment in accordance with the law.207

Further, several presidents of the Austrian constitutional court have publicly denounced governmental policies concerning data protection and asylum that they considered to be in serious breach of the fundamental rights guaranteed in the constitution. Their criticism is frequently disseminated to the public at large via the media and has succeeded in ‘triggering off a discussion on the value of rights protection which seems of paramount import ance at a time when liberty is at stake for the purposes of enhanced security’.208 For a somewhat different approach to interactions with the media, consider the 2010–2011 annual report of the UK Supreme Court, which features a section entitled ‘Telling our story through the media’ detailing how the Supreme Court has ‘continued to build a close relationship with media organisations’. One of the highlights was a BBC series: This focused on four of our Justices, with in-depth interviews about their work and views on justice and the law. A number of members of the public contacted us after the broadcast of the programme, remarking on the Justices’ ‘openness’, ‘hard work’ and ‘dedication’.209

There are different perspectives on the desirability or otherwise of courts forging a relationship with the media with a view to partaking in and shaping the constitutional public discourse. As Grabenwarter has pointed out, the media may ‘bear responsibility for the proper perception of court decisions’ and can accordingly ‘strengthen and support the independence of constitutional courts by giving them a voice in the public debate’.210 Also, media attention may enable the court to enhance its status in the eyes of the general public and boost its public backing. At the same time, judges could be perceived as jeopardising their impartiality by inserting themselves in the public discourse, which, in the long run, could be detrimental to their overall legitimacy. Much will depend in this respect on the aim pursued and the type of story told through the media: this risk is unlikely to materialise when the judges seek to raise awareness via the media about their court’s existence and activities, but matters may be different when the judges are defending, interpreting and commenting on specific judgments or decisions taken by the political branches of government that are (not yet) before them for review. 206 Decision 11/1992 AB of 5 March 1992. Excerpts of this decision in English can be found in L Sólyom and G Brunner, Constitutional Judiciary in a New Democracy: The Hungarian Constitutional Court (Ann Arbor, Michigan University Press, 2000) 214–28. This decision and its aftermath are discussed in more detail in ch 7, section II-A(ii). 207 This quote is taken from KL Scheppele, ‘A Comparative View of the Chief Justice’s Role’ (2006) 154 University of Pennsylvania Law Review 1757, 1779–80. 208 A Gamper and F Palermo, ‘The Constitutional Court of Austria: Modern Profiles of an Archetype of Constitutional Review’ (2008) 3 Journal of Comparative Law 64, 77–78. 209 Supreme Court, Annual Report and Accounts (HC 2010–11, 976) 33. 210 C Grabenwarter, ‘Keynote Speech: Separation of Powers and the Independence of Constitutional Courts and Equivalent Bodies’ (2nd Congress of the World Conference on Constitutional Justice, Rio de Janeiro, 16 January 2011).

THE PEOPLE 49

When it comes to the media’s ability to foster public discourse on constitutional issues, which in turn may impact on the behaviour of State organs, certain prerequisites must be in place. These include in particular a high level of protection of the freedom of expression, so that the media can perform its role as ‘public watchdog’211 and as a platform for communicating constitutional ideas in the public sphere. Also, the (great) majority of media corporations should be independent from the government and political parties and be able to independently decide what information to disseminate, how and when.212 On a separate but related note, it is important to emphasise that it is becoming increasingly difficult to precisely define what constitutes ‘the media’. The term certainly covers print and broadcast media. The internet has, however, greatly transformed these traditional sources, such as through the emergence of blogs which have become decidedly influential. In the realm of constitutional law, we can see that blogs – notably those written by constitutional scholars – are often at the vanguard in signalling and reflecting upon constitutional questions. This brings us to the contribution of academia as a particular segment of the people as regards upholding the constitution and the process of constitutional interpretation.213 There are two ways in which it can be involved. One is through the development of constitutional doctrines, which can be used to systematise, elucidate, legitimate, critique, build on and inspire the approaches taken by other actors in protecting and ensuring respect for the constitution. In countries that have adopted a system of constitutional adjudication, much scholarly attention is devoted to the courts and their decisions addressing constitutional issues. Academics usually compile these decisions and create theoretical or normative frameworks within which both individual judgments and the courts as an institution can be understood and appreciated. For instance, the eminent French scholar Louis Favoreu has been described as ‘bard-in-chief of the Conseil constitutionnel ’214 and there is widespread agreement that he has been instrumental in establishing the legitimacy of the Conseil constitutionnel and ensuring that it is embedded within the French constitutional order.215 Relatedly, constitutional scholars may critically assess the interpretative approaches and decisions adopted by State organs on constitutional issues, including by courts with constitutional jurisdiction. To the extent that this happens, the courts’ work falls under the scrutiny of the academic community, which can accordingly play a role akin to that played by the press vis-à-vis Parliament and government in many European democracies. This does 211 This term is part of the standard formula used by the European Court of Human Rights in relation to the media and freedom of expression: see eg Jersild v Denmark Series A no 298 (1994). 212 Consider in this respect the concern raised in 2011 by the European Commission and others about provisions in Hungary’s new media law which were believed to threaten media diversity. Although the Hungarian authorities eventually changed the law in some respects, the Commission and the Council of Europe at the time of writing continue to express their unease about several feature of the media regime in Hungary. 213 It is not the aim of this subsection to give an overview of the role played by constitutional scholarship in relation to constitutional law and its development more generally, including the perennial debate on the perceived anti-democratic nature of courts with constitutional jurisdiction that enjoy the power to overturn legislative choices. 214 B Neuborne, ‘Hommage à Louis Favoreu’ (2007) 5 International Journal of Constitutional Law 17, 19, mentioning several ‘celebrated examples’ showcasing this role of Professor Favoreu. 215 See the contributions to the ‘Symposium in Honour of the Late Louis Favoreu: France’s Exceptionalism in Constitutional Review’ (2007) 5 International Journal of Constitutional Law. Other academics that have been significant in debating the legitimacy of the Conseil constitutionnel and its work include Georges Vedel, Dominique Rousseau and Michel Troper. For a succinct overview of their approaches, see M-C Ponthoreau and J Ziller, ‘The Experience of the French Conseil constitutionnel: Political and Social Context and Current Legal-Theoretical Debates’ in Sadurski (ed), Constitutional Justice, East and West (n 152) 131–41.

50 THE ROLE OF NON-JUDICIAL ACTORS

not always happen, however. Schlink, for example, has argued that the majority of constitutional scholars in Germany have so far failed to unlock sufficient critical potential in their dealings with the German Bundesverfassungsgericht: constitutional scholarship has been tempted, and has often yielded to the temptation, to adapt to the Bundesverfassungsgericht as a sort of junior partner and thus participate in its authority, instead of offsetting its authority as a critical opponent. That is, various constitutional scholars have acted as advisors or representatives in cases before the Bundesverfassungsgericht, as loyal compilers and systematisers of its decisions, even as possible candidates for future positions on the Court. Constitutional scholarship would like to participate in power, and it realizes that the courtiers are rewarded for their service to the royal court by being allowed to influence it.216

Further, academia can identify social challenges or problems that may have constitutional implications ahead of State organs and seek to influence how these should be dealt with, for example by putting forward a new understanding of a constitutional provision or principle. The second way in which scholarship can be involved in protecting and ensuring respect for the constitution is through participation in processes of constitutional interpretation carried out by State organs. Recall how heavily the Finnish Perustuslakivaliokunta and the UK Constitution Committee rely on the expertise and advice of academics. The last report of the Perustuslakivaliokunta to be drafted without professors of constitutional law having been consulted dates from 1961.217 The Constitution Committee has taken to appointing part-time legal advisers to assist in its activities, and these have so far been leading scholars of constitutional law.218 Furthermore, when collecting evidence for the purpose of its investigate inquiries into wider constitutional issues, it is not uncommon for the Finnish Constitution Committee to ask academics to appear before it as expert witnesses and give oral evidence. It can also happen that scholars partake in judicial procedures to determine whether a legal rule complies with the constitution. In Germany, for example, law professors have frequently appeared as representatives of parties to litigation or even as claimants before the Bundesverfassungsgericht.219

VI. CONCLUDING REMARKS

This chapter has examined how various non-judicial actors can be called upon to play a part in upholding the constitution. In anticipation of the analysis in the following chapters, which are devoted to the establishment and functioning of courts with a constitutional mandate, several observations are in order. All of the actors discussed above devote at least part of their time and energy to constitutional questions. This may appear to be a very banal observation. Yet, it is important to 216 B Schlink, ‘German Constitutional Culture in Transition’ (1994) 14 Cardozo Law Review 711, 734. There are exceptions, eg M Jestaedt, O Lepsius, C Möllers and C Schönberger, Das entgrenzte Gericht: Eine kritische Bilanz nach sechzig Jahren (Frankfurt am Main, Suhrkamp, 2011). The composition of constitutional courts and the position of academia as a prominent supplier of judges in a number of countries are explored in ch 5. 217 Tuori, ‘Landesbericht Finnland’ (n 112) para 2.2.4. 218 Namely Anthony Bradley (2002–05); Andrew Le Sueur (2006–09); Richard Rawlings (2009–11); Adam Tomkins (2009–11). 219 This occurred for instance in the case culminating in the Lisbon judgment of the Bundesverfassungsgericht, BVerfG, 2 BvE 2/08 (2009) Lisbon Treaty.

CONCLUDING REMARKS 51

reiterate the point here, before moving on to consider the role of the courts in protecting and enforcing the provisions and principles of the constitution, given the frequent and growing tendency to view ‘courts’ and ‘constitutional interpretation and review’ as natural companions. It is important to remember that when a matter is placed before the court, usually there has already been consideration of and debate about the meaning of the relevant constitutional provisions and whether a given legal rule lies within constitutional boundaries. In other words, courts usually do not adjudicate constitutional issues ex nihilo. Non-judicial actors generally lack the power to impose their position on the constitutional validity of a (proposed) legal rule or their interpretation of a constitutional provision or principle, as the case may be, on other State organs. That said, as a matter of political practice, the opinions provided by councils of state, chancellors of justice and particularly the views of the Finnish and UK intra-parliamentary committees for constitutional scrutiny carry considerable weight and often exert an impact on the way in which the political branches of government approach and deal with constitutional issues. Further, in those countries that have adopted a system of constitutional adjudication and conceive of courts as ultimate guardians of the constitution, non-judicial actors may still have the final word on a particular constitutional issue, for instance because there is no possibility of submitting the matter to the court or the opportunity to do so has not been taken. It is clear that the presence of a court with constitutional jurisdiction influences how other State organs go about upholding the constitution, and also that it has an impact on public discourse, both in the media and in constitutional scholarship. At the very least, such courts can call attention to relevant constitutional issues and make these salient. When it comes to understanding exactly how courts shape the ways in which non-judicial actors conceive of and perform their duty to protect the constitution and evaluating the impact of the judges and their decisions in this regard – whether these enhance or rather detract from the quality and effectiveness with which other actors give effect to their constitutional responsibilities – the picture is more mixed and there is a need for more (comparative) empirical and sociological research dealing with the various European countries.

Chapter 2 The Rise of Constitutional Adjudication I. INTRODUCTION

‘Constitutional review, the power of courts to strike down incompatible legislation and administrative action’, observed Ginsburg in 2008, ‘has become a norm of democratic constitution-writing’.1 He went on to mention that in that year, 158 out of 191 constitutional systems explicitly empowered one or more judicial bodies to guarantee respect for their country’s constitution and protect its constitutional provisions and principles against infringements, notably by Parliament. As Shapiro points out, ‘Now we have to ask, why do so many people in so many parts of the world entrust so much of their governance to judges’?2 The aim of the present chapter is to demonstrate the veracity of Ginsburg’s observation for the great majority of the European countries under study in this book, although we will also devote attention to two outliers (the Netherlands and the United Kingdom). Furthermore, taking up Shapiro’s pertinent question, this chapter seeks to offer an historical account of the reasons that have induced the European jurisdictions under examination to provide for some form of constitutionality control by judges, and, conversely, those that have led the outliers to buck this trend.3 Before embarking on this historical narrative of each of the 11 countries (sections III and IV), it is necessary to be clear about how the notion of ‘constitutional jurisdiction’ can be understood (section II). In the conclusion, we will reflect on the main findings as well as briefly illustrate how the idea of granting courts the power to engage in some form of constitutional review and decide constitutional issues has also been taken up in the context of the European Union and the European Convention on Human Rights (section V).

1 T Ginsburg, ‘The Global Spread of Constitutional Review’ in GA Caldeira, DR Keleman and KE Whittington (eds), Oxford Handbook of Law and Politics, Oxford Handbooks on Political Science (Oxford, Oxford University Press, 2008) 81. This tendency is also reflected in various book titles; see eg R Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge, MA, Harvard University Press, 2004) or the older book by C Tate and T Vallinder (eds), The Global Expansion of Judicial Power: The Judicialization of Politics (New York, New York University Press, 1995). 2 M Shapiro, ‘The Success of Judicial Review’ in SJ Kelly, MW Reisinger and JC Reitz (eds), Constitutional Dialogues in Comparative Perspective (New York, St Martin’s Press, 1999) 218. 3 Other well-known accounts, some more theoretical in nature and also focusing on countries other than those under study, are offered by M Cappelletti, The Judicial Process in Comparative Perspective (New York, Oxford University Press, 1989); Shapiro, ‘The Success of Judicial Review’ (n 2); T Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (New York, Cambridge University Press, 2003); Hirschl, Towards Juristocracy (n 1).

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II. THE NOTION OF ‘CONSTITUTIONAL JURISDICTION’

The rationale for the institution of constitutional review, it will be recalled, stems from the idea that the constitution is the supreme law of the land and that its integrity, provisions and values should be protected against infringements. When a court is said to have ‘constitutional jurisdiction’, this expression is normally understood to mean that the court can ensure the supremacy of the constitution by reviewing the constitutionality of acts of parliament and invalidating or disregarding them if they offend against the constitution. Constitutional jurisdiction in this sense denotes that the court performs constitutional review sensu stricto: it determines the existence of a conflict between the constitution and other legal norms, and, crucially, it is empowered to attach consequences to this finding. In so doing, it is able to impose its legal position on constitutional matters on other State organs. As we shall see below, the preponderance of the countries under study have assigned this task to special constitutional courts that are institutionally separate from the rest of the judicial branch.4 These courts are usually entrusted with additional powers and responsibilities apart from the reviewing of legislation in the light of the constitution. While these other tasks frequently involve the interpretation and enforcement of the constitution, in some instances the constitutional text provides very little (if any) mooring for the exercise of a particular function. This is the case, for example, when constitutional courts can examine the legality of elections, hear impeachment proceedings against high public officials, or decide on the proscription of political parties.5 However, it is common practice to use the expression ‘constitutional jurisdiction’ to encompass all the functions performed by a constitutional court, irrespective of how ‘constitutional’ such functions really are. Further, the normal way of using this expression may serve to exclude certain judicial mandates or tasks that can, conceptually speaking, be considered to involve the exercise of constitutional jurisdiction. For example, courts in some countries lack the power to strike down legislation or refrain from applying legislation to a specific controversy on constitutional grounds, but can still interpret and apply the constitution – for instance to proceed to offer a constitution-conform reading of the impugned legislation or to publicly declare a law unconstitutional.6 In countries that have created constitutional courts, the regular judiciary often also exercises a form of constitutional jurisdiction. On the one hand, in many legal systems, they decide on the compatibility of legal rules that are of a lower rank than acts of parliament – such as executive decrees – with constitutional provisions and principles. On the other hand, even though they are not finally responsible for deciding on 4 Although there are also countries that adhere to the so-called decentralisation model (or a version thereof) and entrust all national courts (or a special chamber within the regular supreme court) with the power to decide on the constitutionality of acts of parliament. The difference between decentralised constitutional adjudication and the establishment of a separate constitutional court, and the choices made by the EU’s Member States in this regard, are revisited in more detail in ch 3, section II. 5 See also T Ginsburg and Z Elkins, ‘Ancillary Powers of Constitutional Courts’ (2008) 87 Texas Law Review 1431, 1432; V Ferreres Comella, Constitutional Courts & Democratic Values: A European Perspective (New Haven, Yale University Press, 2009) 6. 6 For instance, although the Dutch constitution (Art 120) contains a ban on courts setting aside acts of parliament on constitutional grounds, the Dutch supreme court (Hoge Raad) has accepted that it has the power to declare that a law violates a constitutional provision or principle: Decision of 14 April 1989, Harmonisatiewet, NJ 1989/469.

REASONS BEHIND THE RISE OF ADJUDICATION 55

the constitutionality of legislation, regular courts are encouraged to construe the law applicable to the specific case before them in a manner that makes it comport with the constitution.7 In all these situations, courts are interpreting the constitution and determining constitutional issues and can be regarded as exercising constitutional jurisdiction. It is thus important to note that ‘constitutional jurisdiction’ can be understood in a strict sense as referring to the competence of judges to assess the constitutionality of primary legislation, or used in a broader way to encompass all judicial activities that involve a court acting in constitutional mode by using the constitution as a yardstick to pronounce on constitutional questions.

III. EXPLORING THE REASONS BEHIND THE RISE OF CONSTITUTIONAL ADJUDICATION

In twenty-first century Europe, most countries have embraced the idea that courts should function as the central guardian of the national constitution. What rationales have motivated legal systems to turn to the courts for the protection and enforcement of constitutional provisions and principles? This section explores three such reasons. First is the functional need for an independent umpire to resolve competence disputes between State organs or between different levels of government. The second rationale is linked to demo cratisation processes and rights thinking that associates constitutional review by courts with the concern to guarantee observance of the Rule of Law and afford protection to fundamental rights, including against violations by the legislature. Third, we will consider the influence exerted by membership of the European Union and being a contracting party to the European Convention on Human Rights.

A. Avoiding Competence Collisions between State Bodies One of the functions of a constitution is to assign competences to different levels and organs of the State. Although considerable efforts are often expended to define and describe the powers and responsibilities of each of those,8 in reality differences of opinion or conflicts between the various organs or echelons are an integral part of the constitutional life in most countries. While such disagreements or conflicts may be resolved within the political arena, countries have also been motivated to entrust the ultimate resolution of competence disputes to a court. Judicial organs arguably have several advantages over other bodies as a forum of dispute resolution: they are (or, at least, are perceived to be) neutral and independent of the parties to the conflict, and they will settle the controversy with reference to legal norms, instead of relying on political considerations or even the brute force of power.9 As This issue is explored in more detail in ch 7, section III-A. Although there are also examples of constitutions that are intentionally vague in this respect, for instance because it is difficult to reach agreement at the drafting stages or to allow for a gradual fleshing out of the relations between the various State organs. 9 See M Shapiro, Courts: A Comparative and Political Analysis (Chicago, University of Chicago Press, 1986); M Shapiro, ‘The Success of Judicial Review and Democracy’ in M Shapiro and A Stone Sweet, On Law, Politics & Judicialization (Oxford, Oxford University Press, 2002). 7 8

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such, conflicts concerning regarding the demarcation of the precise ambit of competences among State organs are removed from the realm of politics and brought into the realm of (constitutional) law. This idea of entrusting courts with the adjudication of jurisdictional disputes is particularly attractive to federal systems, where the distribution of powers between different levels of government almost certainly will produce competence conflicts. Belgium is a good example of a country where the establishment of what today is called the constitutional court was prompted by the introduction of the federal form of government. i. Belgium: From Cour d’arbitrage to Cour constitutionnelle Since its independence in 1830 until 1970, Belgium was a unitary centralised state. In the 1970s, a process of state reform was initiated, which culminated in the federalisation of Belgium.10 Three levels of government were created: the federal state, the communities and the regions.11 Legislative competences were distributed among legislatures located at the three levels.12 Crucially, there was and is no primacy rule in the Belgian federal system and statutes enacted by the federal legislature do not take precedence over those adopted by the community and regional legislatures.13 As a result, there was a clear potential for conflicts concerning the constitutional division of powers between the different echelons and a Cour d’arbitrage (court of arbitration) was established to adjudicate the jurisdictional conflicts that could arise under the new federal design of the Belgian state. The Cour d’arbitrage was inaugurated on 1 October 1984 and heard its first case on 19 March 1985. Its original mandate was very limited, as reflected in its name: at its inception, the Cour d’arbitrage was only competent to examine whether the statutes adopted by the federal, community and regional legislatures comported with the constitutional provisions that distribute the competences among the different levels of government.14 The decision to endow the Cour d’arbitrage with such a narrow mandate reflected Belgium’s unfamiliarity with the institution of constitutional adjudication and the fear of introducing a gouvernement des juges. In other words, Belgium displayed an initial aversion to judges acting as a correction mechanism vis-à-vis the parliamentary majority and in effect ‘ruling the land’.15 10 A number of factors contributed to the impetus for state reform, including the Flemish demand for cultural autonomy and Walloon insistence on autonomy in matters of economic governance. See eg J Brassinne, Les nouvelles institutions politiques de la Belgique (Brussels, Dossier du CRISP 30, 1989). 11 Belgian constitution, Art 1. 12 The communities (gemeenschappen) are responsible for education (with minor exceptions), cultural matters and aspects of labour law (Belgian constitution, Arts 127–30 and Special Majority Act of 8 August 1980 pertaining to the Reform of the State Institutions, Arts 4–5). The regions (gewesten) deal with land planning, environmental policy, waste and water policy, aspects of agricultural, fisheries and economic policy, energy and transport (Belgian constitution, Arts 39, 41 and 162 and Special Majority Act of 8 August 1980 pertaining to the Reform of the State institutions, Art 6). 13 Statutes adopted by the communities and the regions are called decrees (decreten), with the exception of those adopted by the Brussels region, which are called ordinances (ordonnanties). 14 D Reynders, Prévention et règlement des conflits: la génèse de la Cour d’arbitrage (Brussels, Dossier du CRISP, 1983); J-P Lagasse and S Moureaux, La Cour d’arbitrage: juridicion constitutionnelle: commentaire de la loi du 28 juin 1983 (Brussels, Larcier, 1984). 15 The phrase ‘gouvernement des juges’ derives from an influential book by Édouard Lambert, entitled Les gouvernement des juges et la lutte contre la législation sociale aux États-Unis (Paris, M Giard & Cie, 1921), in which the author severely criticises the reactive approach of the US Supreme Court in the so-called Lochner era, during which the US judges repeatedly struck down progressive legislation in the social field and impeded the realisation of policy goals desired by the political majority. His account struck a powerful chord with politicians and academics in many European continental systems in the interbellum, who strongly subscribed to notions of the general will and the supremacy of the legislature.

REASONS BEHIND THE RISE OF ADJUDICATION 57

Gradually but steadily, the Cour d’arbitrage’s portfolio expanded. During a second wave of federalisation in the 1980s, competences in the field of education were transferred from the central government to the communities. The organisation of the educational system in Belgium had for a long time been beset by sensitivities, concerning in particular the question of whether educational programmes should be founded on religious principles and teachings. In 1958, the three main political parties had concluded a grand education agreement – the School Pact – which sought to accommodate the differences of opinion on this matter. To ensure that the devolution of competences in the education field to the communities would not compromise this School Pact and that Catholic and state-sponsored schools would continue to be treated equally, the core principles were codified in a new constitutional provision concerning the freedom of education.16 The Cour d’arbitrage acquired the competence to use this provision and, relatedly, the constitutional articles guaranteeing the principles of equality and non-discrimination as yardsticks for review.17 In a significant development, the Cour d’arbitrage gave a broad reading to the latter two provisions and ruled that a violation of any of the other fundamental rights enshrined in the Belgian constitution at the same time amounted to unlawful discrimination in the enjoyment of that particular right.18 Accordingly, it claimed the power to indirectly review statutes against each and every fundamental right protected by the constitution. This judicial choice was endorsed by the legislature in 2003, when the mandate of the Cour d’arbitrage was once again modified and it acquired the power to control whether statutes comply with all the fundamental rights and liberties laid down in the constitution,19 the principle of legality in fiscal matters20 and the principle of the equal treatment of foreigners.21 Finally, during the 2007 constitutional revision, its name was changed from Cour d’arbitrage to Cour constitutionnelle (constitutional court) to better reflect its current mandate.22 ii. France: Conseil constitutionnel As shown above, the vertical distribution of competences among different levels of government can explain the establishment of a judicial body with the power to resolve jurisdictional disputes. Similarly, courts may be created or empowered to resolve competence conflicts arising from the horizontal allocation of powers between State organs (ie those located at the same level of government). France is a case in point. In the years preceding the French Revolution of 1789, the king’s laws had to be registered with the local parlements (court-like bodies staffed by clergy and noblemen who had bought themselves a seat on these bodies) to be valid. These courts soon felt that they were in a position to decide the legal fate of a law, by either registering it and thereby granting it legal force or, conversely, by preventing the entry into force of a law by refusing to register Belgian constitution, Art 24. ibid, Arts 10 and 11. 18 Judgment no 23/89 of 13 October 1989 Biorim. This case and its aftermath are discussed in more detail in ch 5, section II. 19 Belgian constitution, Title II, entitled ‘The Belgians and their rights’. 20 ibid, Art 170. 21 ibid, Art 191. 22 Recent textbooks dealing with the Belgian constitutional court include P Popelier, Procederen voor het grondwettelijk Hof (Antwerp, Intersentia, 2008) and M-F Rigaux and B Renauld, La Cour constitutionnelle (Brussels, Bruylant, 2009). 16 17

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it.23 They were thus able to thwart a number of liberal reforms introduced by King Louis XVI, which confirmed the popular perception of these bodies as elitist structures that stood in the way of societal progress. 24 Upon coming to power, the French revolutionaries sought to curb such reactionist behaviour on the part of the judiciary. In doing so, they were influenced by the philosophical ideas of Montesquieu and Rousseau, which underscored the prominent position of the representative legislature within the overall state structure.25 This led to the adoption of the law of 16–24 August 1790, which forbade judges to ‘take part directly or indirectly in the exercise of legislative power’ or to ‘obstruct or suspend the execution of the decrees of the legislative body’.26 To keep the executive within its proper constitutional confines, a system of administrative courts was put in place, with the Conseil d’État (Council of State) at its apex. The legislature was expected to practise constitutional self-limitation.27 In the interbellum years, there were plans to carve out a role for the courts in upholding the constitution, but these never came to fruition. This was due in large part to the publication of an influential book in 1921 by Édouard Lambert entitled Le gouvernement des juges. In this book, Lambert mounted a powerful attack on the institution of constitutional adjudication, by arguing that the US Supreme Court in its so-called Lochner era case law28 displayed the same reactionist behaviour as the old parlements and that this was an inevitable side-effect of allowing judges to control the constitutionality of laws and frustrate the will of the political majority.29 Stone Sweet observed that: Lambert’s book . . . destroyed whatever effective political support for judicial review that existed within Parliament and weakened doctrinal consensus. For politicians, according to Lemasurier: “Judicial review was no longer considered to be only . . . ‘a play thing for jurists’, nor even a means

23 While the king could respond with a lit de justice to override the refusal to register, a remonstrance by the parlement could nevertheless result in amendments being made to the law. 24 J Bell, French Constitutional Law (Oxford, Clarendon Press, 1998) 20. 25 According to Montesquieu, the judiciary was subordinate to the legislature as ‘the judges of the nation are nothing but the mouth which pronounces the words of the law; some inanimate beings who cannot moderate either the force or rigour of the law’: De l’esprit des lois (1748) Livre XI ch 6. Rousseau emphasised the notion of the general will of society (volonté générale), which according to him resided exclusively in laws adopted by a representative Parliament. This restricted the scope for control of, or restrictions on, acts of parliament, as these would amount to restrictions on society’s general will. 26 The law also banned the sale of judicial offices and required judges to refer any questions regarding the interpretation of a law to the legislative body (known as the référé legislatif). The law is still in force today, with the exception of the référé legislatif, which was repealed soon after its enactment. Consider also the text of the 1790 constitution, providing that ‘courts cannot interference with the exercise of legislative powers or suspend the application of the laws, nor can they infringe on administrative function, or take cognizance of any administrative acts of any kind’. 27 While there were some attempts to entrust another body with constitutional review, these all came to nothing. During the First and Second Empires, there was a Sénat conservateur with the competence to assess the constitutionality of legal provisions on a referral by the parliamentary assembly or the government. This Sénat did not, however, carry out any meaningful constitutional review. In light of the collaboration of the Vichy regime with the Nazi Party during the Third Republic, the Fourth Republic had already established a Comité constitutionnel, tasked with examining acts of parliament against a few articles of the constitution dealing with institutional matters. However, it was not easy to gain access to this body and it adopted only one decision throughout its existence. 28 During this period (1890–1937), the US Supreme Court struck down a number of progressive laws that sought to regulate and improve working conditions and anti-competitive practices. In its namesake case, Lochner v New York 198 US 45 (1905), the Supreme Court held that a New York statute imposing a 10-hour limit on the daily hours of bakers was invalid because it violated the right to contract as part of the US constitution’s due process clause. This reactionary period finally drew to a close in 1937, following threats by president Roosevelt to ‘pack the court’ if his New Deal legislation continued to be invalidated. 29 Lambert, Les gouvernement des juges (n 15).

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of defending individual liberties, but was henceforth a weapon in the hands of Reaction” – palatable only to the far right and to representatives of monopoly capital.30

The alternative of relying on legislative self-restraint and leaving it to Parliament to uphold and respect the constitution did not yield the desired results, however, since ‘blatantly abusive lois were passed both in terms of procedure and substance’.31 What is more, the systems of government in place during the Third and Fourth Republics were defective in several respects: France had had a series of unstable governments; its political scene was fragmented; military turmoil had developed in the wake of decolonisation; and then there was the collaboration of the Vichy regime with the Nazis during World War II. Matters came to a head in 1958, when the government fell due to trouble in Algiers, with the imminent threat of a military coup in mainland France. To ward off such a potentially disastrous course of events, President René Coty offered General de Gaulle the post of prime minister and requested that he form a new government. De Gaulle accepted, on the condition that he could draft a new constitution. This became the 1958 constitution and marked the establishment of the Fifth Republic, which is still in existence today. De Gaulle was deeply concerned about what he perceived as undue parliamentary interference in the executive domain during the previous Republics, which he believed had largely caused the eventual demise of both Republics.32 At his instigation, the 1958 constitution incorporated a new scheme for the division of legislative competences between the executive and Parliament, enhancing the role and powers of the former at the expense of the latter.33 Article 34 of the French constitution specifically enumerates the subject matters in relation to which Parliament is competent to enact statutes, and Article 37 accords the government residual legislative-type powers.34 Parliament’s functions were thereby rationalised, and, to ensure that it would not encroach upon the government’s autonomous sphere of rule-making, a new institution was created: the Conseil constitutionnel. This body was not conceived as a strong judicial body, evidenced in its name (it is the Conseil constitutionnel not the Cour 30 A Stone Sweet, ‘Why Europe Rejected American Judicial Review: And Why it May Not Matter’ (2003) 101 Michigan Law Review 2744, 2759, referring to J Lemasurier, La constitution du 1946 et le contrôle juridictionnel du législateur (Paris, Pinchon & Durand-Auzias eds, 1954). 31 Bell, French Constitutional Law (n 24) 22. 32 The executive was strongly dependent on Parliament during these republics: Parliament elected the president, held the government to account, and the government could only govern if it enjoyed the confidence of Parliament. Furthermore, coalition governments were inevitable due to the nature of the electoral system, and the strong presence of anti-regime parties posed significant obstacles to the process of government formation. 33 Another important feature of the 1958 constitution is presidentialism: the French system of government has a double-headed executive and the presidency is not a ceremonial function, but an office of real political power. For instance, it is the president (and no longer the parliament, as under the Third and Fourth Republics) who appoints the government (French constitution, Art 8). For a description of the executive power in France under the 1958 constitution, see eg J Gicquel and J-E Gicquel, Droit constitutionnel et institutions politiques, 24th edn (Paris, Montchrestien, 2010) 551 ff. 34 The dominant role envisaged for the government vis-à-vis Parliament further found expression in the former’s ability to control the setting of the parliamentary agenda (French constitution, Art 48(1)); the setting of a maximum duration of ordinary sessions of Parliament (French constitution, Art 28); and the priority often enjoyed by government bills over Parliament’s legislative proposals (French constitution, Arts 40, 42(1), 44(3), 45(2)). In its case law, the Conseil constitutionnel has ‘read down’ Arts 34 and 37 and reinforced the position of the French Parliament, for instance in Décision no 82-143 DC of 30 July 1982, Blocage des pris et des revenus (holding that Parliament could enact legislation dealing with matters that fell within the government’s regulatory domain if the latter did not object). In 2008, the 1958 constitution was significantly revised in order, inter alia, to strengthen Parliament and ‘rebalance’ its relationship with the executive, resulting in modifications to several of the constitutional provisions just mentioned, described for example by M Rogoff, ‘Fifty Years of Constitutional Evolution in France: The 2008 Amendments and Beyond’ (2011) 6 Ius politicum: revue de droit politique 1, 26 ff.

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constitutionnelle), its composition (as we shall see in chapter four, legal knowledge is not a prerequisite for appointment and former presidents of the republic are de jure members) and its narrow jurisdiction.35 The Conseil constitutionnel’s principal function consisted of hearing challenges against laws before their promulgation in order to ensure that they did not fall foul of the distribution of powers between the government and Parliament laid down in the 1958 constitution.36 In the years immediately following its establishment, the Conseil constitutionnel embraced its original limited mandate of being a parliamentary watchdog.37 Two developments in the early 1970s, however, heralded a change in this role. First, in its celebrated Liberté d’association decision of 1971, the Conseil constitutionnel accepted that it could also review laws against substantive constitutional principles, including fundamental rights.38 Second, a 1974 constitutional amendment granted 60 deputies or senators – who in practice typically belong to the political minority – the right to refer laws to the Conseil constitutionnel for review, in what Rousseau has called a ‘véritable révolution constitutionnelle’, since until then access to the courtroom had been restricted to the presidents of the republic, National Assembly and Senate and the prime minister.39 Petitioners no longer exclusively or primarily claimed an infringement of the separation of powers between the government and Parliament, but instead relied increasingly on fundamental rights grounds. The upshot was that a considerably greater number of statutes than before were challenged before the Conseil constitutionnel. The Conseil constitutionnel was thus slowly being transformed from an ‘organe régulateur de l’activité des pouvoirs publics’ into the ‘protecteur des droits et libertés de la personne’.40 The latest instalment in this transformation took place in 2008, when several important changes were made to the French constitution, inter alia to better protect the rights of individuals. One of these consists of the inclusion of a new Article 61-1 which allows ordinary courts to submit questions concerning the compatibility of legislation with constitutional rights and freedoms, raised by the parties to the specific controversy before them, to the Conseil constitutionnel and which accordingly 35 In addition to reviewing the constitutionality of acts of parliament, the Conseil constitutionnel oversees electoral processes and referendums (French constitution, Arts 59–60). Under the previous regimes, Parliament had accorded itself the power to verify its own elections, which resulted in a number of partisan decisions, and this has inspired the drafters to introduce external control in the form of the Conseil constitutionnel. See C Vroom, ‘Constitutional Protection of Individual Liberties in France: The Conseil constitutionnel since 1971’ (1988) 63 Tulane Law Review 265, 273. 36 French constitution, Art 61. The Conseil constitutionnel also exercises mandatory review over Parliament’s rules of procedure and institutional acts that flesh out constitutional provisions. For further discussion, see ch 3, section III-A(i)(a). Executive decrees adopted pursuant to Art 37 of the constitution (which can be legislative in all but name) fall within the jurisdictional remit of the judicial section of the Conseil d’État. 37 For instance, in Décision no 62-20 DC of 6 November 1962, Referendum, the Conseil constitutionnel refused to accept jurisdiction to assess General de Gaulle’s decision to amend the constitution by means of a referendum rather than by using the constitutionally prescribed revision procedure. While the decision can be understood as a rational choice on the part of the Conseil constitutionnel to avoid a collision with the president, whose legitimacy was far better established than that of the Conseil itself, the ruling has also been criticised as the Conseil failed to act as a check against quite obvious unconstitutional behaviour. The Conseil constitutionnel confirmed its lack of competence to adjudicate laws adopted by means of a referendum in Décision no 92-313 DC of 23 September 1992, Treaty of Maastricht III. 38 Décision no 71-44 DC of 16 July 1971, Liberté d’association, discussed in more detail in ch 5, section V. This judgment has been called France’s Marbury v Madison by GD Haimbaugh, ‘Was it France’s Marbury v Madison?’ (1974) 35 Ohio State Law Journal 910. 39 D Rousseau, Droit du contentieux constitutionnel, 9th edn (Paris, Montchrestien, 2010) 37 [translation: ‘veritable constitutional revolution’]. 40 J Gicquel, Droit constitutionnel et institutions politiques, 12th edn (Paris, Montchrestien, 1993) 773 [trans lation: ‘a regulatory organ of the public powers’ and ‘a guardian of rights and personal freedoms’].

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empowers the latter to review the constitutionality of statutes that have already entered into force.41 In the wake of this constitutional amendment, a former member of the Conseil constitutionnel commented in a popular newspaper that France had thereby acquired ‘une cour constitutionnelle française pour le XXIe siècle’.42 B. Guaranteeing Observance of the Rule of Law and Affording Protection to Fundamental Rights A second rationale for the introduction of constitutional adjudication is linked to processes of democratisation and the transition from authoritarian rule to constitutional democracy. When transitioning, countries normally adopt a new constitution – or at least radically overhaul the pre-existing foundational text – which usually proclaims that the State abides by the Rule of Law and expresses a strong commitment to the protection of the rights of individuals, commonly evidenced by the incorporation of elaborate rights catalogues in the constitution. The constitutional framers endow courts with the competence to uphold constitutional rules and values to prevent these much-vaunted guarantees from being a paper tiger. In particular, as ultimate guardians of the newly minted constitution, courts should protect the Rule of Law and fundamental rights from violations by the legislature. The reason this is so is because past experiences demonstrated that the latter could not be relied upon as the final guardian of the constitution and was in fact responsible for many constitutional breaches committed under the previous regime. As a former vicepresident of the Spanish constitutional tribunal explained: [T]he establishment of constitutional jurisdiction is linked with the desire to guarantee democratic constitutional stability in the light of past and present dangers and to prevent constitutional mandates from being eroded and eventually suppressed by a parliamentary majority which disregards the Constitution. The objective of constitutional jurisdiction is to defend the Constitution from possible situations which might threaten its integrity.43

Germany, Italy, Spain, the Czech Republic, Hungary and Poland are all countries that sought a break from their National Socialist or Communist past, and where the decision to vest courts with the power to review the constitutionality of legislation and keep other State organs in check was strongly motivated by the desire to take seriously the commitment to the Rule of Law and afford meaningful protection to individual human rights.44 However, there were also other factors at play in several of these countries, and the story is therefore more complex than can be explained by a commitment to the Rule of Law and the protection of human rights. For one, before authoritarian rule took over, certain countries had already introduced some form of constitutional adjudication. This meant that 41 French constitution, Art 61-1. This provision and the reasons for its introduction are explored in ch 3, section III-A(ii). 42 N Lenoir, ‘Une cour constitutionnelle française pour le XXIe siècle’, Le Monde (Paris, 19 May 2009) [translation: ‘A French constitutional court for the 21st century’]. 43 L Lopez Guerra, ‘The Role and Competences of the Constitutional Court’ in European Commission for Democracy through Law (Venice Commission), The Role of the Constitutional Court in the Consolidation of the Rule of Law (Strasbourg, Council of Europe, 1994) 21. 44 On the meaning and implications of the phrase ‘the Rule of Law’ in central and eastern European countries, see W Sadurski, A Czarnota and M Krygier (eds), Rethinking the Rule of Law after Communism (Budapest, Central European University Press, 2005); M Krygier and A Czarnota (eds), The Rule of Law after Communism: Problems and Prospects in East-Central Europe (Dartmouth, Ashgate, 1999).

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there was an historical precedent for granting courts constitutional jurisdiction that the framers of the new constitution could – and did – build on. The turn towards the courts as guardians of the constitution was thus not in all cases completely unprecedented or de novo, but instead the revival of a pre-existing tradition. For another, the functional need for an independent arbiter to resolve competence conflicts between State organs also resonated with these countries, since every one of their constitutions distributes powers horizontally among the political branches of government and some of these legal systems also subscribe to a federal (or federal-like) form of government. Further, many central and eastern European countries – Poland, the Czech Republic and Hungary included – sought to ‘return to Europe’ after the fall of Communism. The intention was to achieve ‘normality, which in other words meant compliance with European institutional choice’.45 The constitutional framers looked westward as regards the design of a number of fundamentals of the new democratic order, institutions included.46 Indeed, it has been observed that ‘The establishing of constitutional review was a clear case of institutional borrowing’,47 with Germany’s federal constitutional court in particular considered as the model to emulate. On a related note, the more direct influence of forces external to the domestic scene should not be forgotten. The first president of the Hungarian constitutional court has pointed to the role played by the Council of Europe and the idea that establishing a court capable of performing constitutional review sensu stricto was the proper thing to do, and he has also alluded to the symbolism associated with having some form of constitutional adjudication and the message it sends to other countries about the legal character of the State: All new democracies [in central and eastern Europe] set up a constitutional court, and the very existence of these courts obviously served as a ‘trade mark’ or proof of the democratic character of the respective country. Institutions like the Council of Europe had been aware of the impact of constitutional court on democratic development, and clearly encouraged their establishment.48

In the footnote accompanying this statement, he elaborates as follows: Membership in the Council of Europe counted as recognition as a democratic state. For that reason, all new democracies applied for it at the earliest possible time. In the admission process the existence of a constitutional court has been a particularly important point and the Council scrutinised the conditions of the constitutional review.49

In a similar vein, it has been suggested that by relying on courts to uphold the constitution, countries in central and eastern Europe intended to facilitate their eligibility for accession to the European Union.50 This is although some have questioned the extent to which there really was in this regard any anticipatory influence of (the prospect of membership of) the EU and, to a lesser extent, of the Council of Europe.51 45 R Prochazka, Mission Accomplished: On Founding Constitutional Adjudication in Central Europe (Budapest, Central European University Press, 2002) 18–19. 46 Generally on this phenomenon, see W Osiatynski, ‘Paradoxes of Constitutional Borrowing’ (2003) 1 International Journal of Constitutional Law 244. 47 K Lach and W Sadurski, ‘Constitutional Courts of Central and Eastern Europe: Between Adolescence and Maturity’ (2008) 3 Journal of Comparative Law 212, 217. 48 L Sólyom, ‘The Role of Constitutional Courts in the Transition to Democracy: With Special Reference to Hungary’ (2003) 18 International Sociology 133, 134. 49 ibid, 153. 50 See eg H Schwarz, The Struggle for Constitutional Justice in Post-Communist Europe (Chicago, University of Chicago Press, 2000); Prochazka, Mission Accomplished (n 45). 51 See especially W Sadurski, Rights before Courts: A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe (Dordrecht, Springer, 2005) 40–58.

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i. Germany: Bundesverfassungsgericht The genesis of contemporary Germany’s system of constitutional adjudication is the 1949 Basic Law, which in Article 93 provides for the Federal Constitutional Court, the Bundesverfassungsgericht. Yet, it is possible to identify German traditions of much finer vintage supporting some form of constitutional jurisdiction. Two historical tracks can be distinguished.52 First, from the Congress of Vienna in 1815 until the inception of the Third Reich, Germany had known a vertical separation of powers between the constituent states (now known as Länder) and the central government.53 The resolution of competence conflicts was entrusted either to the parliamentary chamber representing the constituent units or to specialised constitutional tribunals established for this particular purpose, such as the Staatsgerichtshof during the Weimar Republic.54 Second, from the mid-nineteenth century onwards, part of the scholarly discourse began to speak out in favour of allowing judges to control the constitutionality of parliamentary legislation, including for observance of individual rights.55 Such ideas came to fruition in the Weimar Republic. The Weimar Constitution of 1919 contained a Bill of Rights, but neither authorised courts to control whether laws comported with those constitutional provisions not prohibited them from doing so.56 Several German supreme courts soon asserted that they did possess such a power of review,57 including the Reichsgericht, which held that ‘It is the recognised rule of law that the courts of law are in principle authorized to examine the formal and material validity of laws and ordinances’.58 These developments came to a premature and abrupt end in the aftermath of the Great Depression. With the Nazi Party’s rise to prominence in 1933, Hitler was able to sweep away the Weimar Constitution and any remaining vestiges of liberal democracy. The period was one marked by gross human rights violations. Germany’s restructuring as a unitary state obviated the need for judicial competence conflict resolution. Also, no law promulgated by the Third Reich was ever quashed as unconstitutional. Constitutional adjudication became a distant memory. The weaknesses associated with the Weimar Constitution, which had contributed to Hitler’s rise to power,59 and the subsequent abuses of the Nazi regime were at the forefront

52 See D Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany, 2nd edn (Durham, NC, Duke University Press, 1997) ch 1. 53 Namely from the German Confederation (Deutscher Bund) from 1815 to 1866; the North German Federation (Norddeutscher Bund) from 1866 to 1871; the Second Empire (1871–1919) to the Weimar Republic (1919–33). 54 To be clear, these courts lacked the competence to rule on the constitutionality of legislation generally. The Staatsgerichtshof was established by the law of 9 July 1921. 55 R von Mohl, Staatsrecht, Völkerrecht und Politik (Tübingen, Buchhandlung Laupp, 1860); Verhandlungen des dritten deutschen Juristentages (Berlin, Druck- und Commissionsverlag von Jansen, 1863), cited in Kommers, Constitutional Jurisprudence of the Federal Republic of Germany (n 52) 6. 56 The issue was intentionally left unresolved; see J Mattern, The Constitutional Jurisprudence of the German National Republic (Baltimore, Johns Hopkins University Press, 1928) 592 ff. 57 Generally on the courts and the Weimar constitution see J Lenoir, ‘Judicial Review in Germany under the Weimar Constitution’ (1940) 14 Tulane Law Review 361. 58 Reichsgericht, 107 RGZ 377, 379 (1924). This ruling was confirmed in even more explicit terms in a judgment of 4 November 1925: ‘Since the national Constitution itself contains no provisions according to which the decision on the constitutionality of national statutes has been taken away from the courts . . . the right and obligation of the judge to examine the constitutionality of statutes must be recognised’ (Reichsgericht, 111 RGZ 320 (1925)). 59 For a succinct explanation, see W Heun, The Constitution of Germany: A Contextual Analysis, Constitutional Systems of the World (Oxford, Hart Publishing, 2011) 18–21.

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of the minds of the drafters of the 1949 Basic Law.60 They were chiefly concerned to avoid a repetition of similar defects in the post-war constitution so as to prevent a recurrence of the atrocious infringements of individual rights that had taken place. The establishment of a strong system of constitutional adjudication to enforce the supremacy of the constitution61 was accordingly ‘selbstverständlich’62 for the participants in the Herrenchiemsee conference, which prepared a first draft of the new constitution. First, there was the conviction that fundamental rights required judicial protection; and secondly, the Weimar Republic had painfully demonstrated that upholding the constitution could not be entrusted (solely) to the Parliament or the president.63 In addition, the Allied forces were adamant about certain key features that the new constitution ought to incorporate, notably the protection of fundamental rights and a democratic and federal system of government.64 This last feature harkens back to the first historical track mentioned above. In deciding to entrust a separate constitutional court with safeguarding the new constitution, the Herrenchiemsee conference was influenced by the work of Hans Kelsen, the intellectual father of this type of constitutional guardian.65 The Herrenchiemsee proposal was largely taken over by the Parliamentary Council, which adopted the Basic Law, including the provisions on the constitutional court, on 8 May 1949.66 The enabling legislation was adopted two years later67 and the Bundesverfassungsgericht commenced operations on 28 September 1951. 60 The text was called ‘Basic Law’ (Grundgesetz) instead of ‘Constitution’ (Verfassung) in view of the division between West and East Germany. The idea was initially to adopt a full constitution upon reunification: see Basic Law, Art 146. 61 The supremacy of the constitution (more accurately: Basic Law) clearly finds expression in Art 20. 62 H Dreier, ‘Grundlagen und Grundzüge staatlichen Verfassungsrechts: Deutschland’ in A von Bogdandy, P Cruz Villalón and P Huber (eds), Handbuch Ius Publicum Europaeum – Band I: Grundlagen und Grundzüge staatlichen Verfassungsrechts (Heidelberg, CF Müller, 2007) 20 [translation: ‘natural’ or ‘self-evident’]. 63 ibid. 64 See in particular the Aide-Mémoire on German political organisation of 22 November 1948, reproduced in US Department of State, Germany 1947–1949: The Story in Documents (Washington, DC, US Department of State Publishing, 1950) 278 (‘The Constitution should provide for an independent judiciary to review federal legislation, to review the exercise of federal executive power, and to adjudicate conflicts between federal and Land authorities as well as between Land authorities, and to protect civil rights and freedoms of the individual’). M Kau, United States Supreme Court und Bundesverfassungsgericht: Die Bedeutung des United States Supreme Court für die Errichtung und Fortentwichlung des Bundesverfassungsgerichts (Berlin, Springer, 2007) provides an historical account of how the US Supreme Court and the American practice of constitutional adjudication served as a model in several respects for the establishment and design of the Bundesverfassungsgericht. 65 Kommers, Constitutional Jurisprudence of the Federal Republic of Germany (n 52) 7–8; W Heun, ‘Die drei Wurzeln den deutschen Verfassungsgerichtsbarkeit’ in W Heun, C Starck and T-J Tsai (eds), Rezeption und Paradigmenwechsel im öffentlichen Recht (Baden-Baden, Nomos, 2009). 66 On the history of the creation of the Bundesverfassungsgericht, see also H Laufer, Verfassungsgerichtsbarkeit und Politischer Prozess (Tübingen, Mohr Siebeck, 1968), particularly 35–137. 67 While the establishment of a court with constitutional jurisdiction itself was not debated, the precise nature of that jurisdiction was contested. Some framers wanted to have a court that resembled the Weimar Republic’s Staatsgerichtshof, responsible for resolving competence conflicts between the two levels of government and among State organs. Others preferred a court that would also have the power to review the constitutionality of laws. The decision was eventually taken to have a constitutional court with two Senates, whereby the second Senate would take on the more ‘political’ function of resolving conflicts between State organs and the first Senate would be in charge of the more ‘legal’ function of examining the constitutionality of legislation, including on substantive fundamental rights grounds. It soon transpired that this division of labour created a very uneven work balance, with the first Senate receiving far more cases than the second. Part of the original jurisdiction of the first Senate was accordingly transferred to the second Senate. The organisational bifurcation of the Bundesverfassungsgericht is still in place today – for instance, judges are not appointed to the Bundesverfassungsgericht as such, but to one of its Senates. For more information on the establishment of the two Senates and their early years, see D Kommers, Judicial Review in West Germany: A Study of the Federal Constitutional Court (Beverly Hills, Sage, 1976) 72–77.

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Shortly after its establishment, the Bundesverfassungsgericht sought to define its place within the wider German constitutional order with the publication of a Status Denkschrift (Status Report),68 in which it asserted that it had the status of a constitutional organ and was thus on a par with the institutions that had been explicitly attributed this status by the Basic Law itself – namely the Bundestag, the Bundesrat and the federal president.69 This claim was subsequently codified in the first article of the law on the Bundesverfassungsgericht.70 Since its early case law, the Bundesverfassungsgericht has conceived of itself as the Hüter der Verfassung (guardian of the constitution)71 and it has by all accounts successfully managed to do so, often serving as a model for other jurisdictions to emulate. The means of access to the constitutional courtroom that have been instrumental in this regard, notably the constitutional complaint procedure, are examined in chapter three. A discussion of the more substantive case law that has extended the reach of the German constitution to all areas of the law and the relationship between the Bundesverfassungsgericht, the political branches of government and the other German courts is deferred to chapters five to seven. We shall see that while the Bundesverfassungsgericht has ‘become a citizens’ court par excellence’72 and is held in great popular esteem, it is not free from criticism for (perceived) meddling with issues that are considered to fall within the purview of other State organs. ii. Italy: Corte costituzionale Italy’s first constitution since unification was the statuto Albertino, which was considered ‘flexible’ in nature due to the ease with which it could be amended – a simple majority vote was sufficient. This feature of the statuto Albertino is said to have enabled the rise of the fascist state.73 In the aftermath of fascism and World War II, the constituent assembly in charge of drafting a new constitution accordingly decided to opt for a liberal democratic and rigid constitution, to avoid significant constitutional changes being introduced without serious and balanced reflections as to their merits.74 This became the 1948 constitution, which established the new Italian republic. To ensure that the legislature would respect 68 Status Denkschrift, 6 Jahrbuch des öffentliches Recht 144 (1957). The Denkschrift was originally published on 27 June 1952. 69 Initially, this Status-Denkschrift gave rise to a conflictive relationship between the constitutional court and the Adenauer government, from which the Bundesverfassungsgericht emerged with significantly bolstered authority and esteem. This episode is recounted in U Wesel, Der Gang nach Karlsruhe: Das Bundesverfassungsgericht in der Geschichte der Bundesrepublik (Munich, Karl Blessing, 2004) 76–82, and in English, see eg G Vanberg, The Politics of Constitutional Review in Germany (Cambridge, Cambridge University Press, 2005) 61–77. 70 This provision states that the ‘Federal Constitutional Court shall be . . . independent of all other constitutional organs’. One of the consequences of this status, according to the Bundesverfassungsgericht, is its autonomous competence to decide on its own rules of procedure: see eg BVerfG 13, 54 [94] (1961); BVerfG 36, 342 [357] (1974); BVerfG 60, 175 [213] (1982). This attitude has been criticised in the literature however: see H Jarass and B Pieroth, Grundgesetz für die Bundesrepublik Deutschland: Kommentar (Munich, Beck, 2006) 868. 71 See eg BVerfG 1, 184 [195] (1952); BVerfG 1, 396 [408] (1952); BVerfG 2, 124 [131] (1953); BVerfG 6, 300 [304] (1957); BVerfG 40, 88 [93] (1975). 72 P Häberle, Verfassungsgerichtsbarkeit zwischen Politik und Rechtswissenschaft (Köningstein, Athenaum, 1980) 61, cited in J Limbach, ‘The Effects of the Jurisdiction of the German Federal Constitutional Court’ (1999) EUI Working Paper LAW 99/5, 21, www.cadmus.eui.eu. 73 G Cuaz, Dallo statuto albertino alla costituzione repubblicana (Turin, Loescher, 1967); S Trentin, Dallo statuto albertino al regime fascista (Venice, Marisilio, 1929), mentioned in L Del Duca and P Del Duca, ‘An Italian Federalism? The State, its Institutions and National Culture as a Rule of Law Guarantor’ (2006) 54 American Journal of Comparative Law 799, 824. 74 See P Pasquino, ‘L’origine du contrôle de constitutionnalité en Italie – les débats de l’Assemblée constituante (1946–47)’ [1999] 6 Cahiers du Conseil constitutionnel.

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constitutional constraints, in particular respect for civil and political rights, and the Rule of Law thinking that infused the new constitution,75 a separate constitutional court – the Corte costituzionale – was created.76 According to one author, ‘Defenders of the court argued for its necessity to preserve rights, to maintain the integrity of the rigid constitution, to avoid a repetition of the fascist rise to power’.77 The Corte costituzionale was a real innovation in that Italy had no prior experience with judicial review of the constitutionality of laws.78 It proved difficult, however, to reach agreement on the precise design of the constitutional court. This was due to the enduring influence of Rousseauan beliefs in the prominence of the elected legislature in the overall constitutional system and unease about the new court transforming into a political institution and engaging in the American-style judicial activism associated with the New Deal US Supreme Court.79 The 1948 constitution stipulates the main organisational features of the Corte costituzionale – namely its jurisdiction and composition – but left the regulation of the more practical aspects required for the operationalisation of the court (such as the rules on access) for subsequent constitutional legislation.80 The delay incurred in adopting these necessary implementing laws and disputes over the first appointments to the bench meant that the Corte costituzionale commenced its activities only in 1956, eight years after the adoption of the 1948 constitution.81 In the interim period, all ordinary courts were competent to scrutinise laws for conformity with the new constitution and, where necessary, refuse to apply these.82 In practice, ordinary judges were extremely reticent to use their powers of constitutional adjudication,83 with the court of cassation ruling early on that the majority of the 75 On the centrality of the rule of law in Italian constitutional law, see Del Duca and Del Duca, ‘An Italian Federalism?’ (n 73) esp 821 ff. 76 See also M Cappelletti, ‘The Significance of Judicial Review of Legislation in the Contemporary World’ in E Von Caemmerer, S Mentschikoff and K Zweigert (eds), Ius Privatum Gentium: Festschrift für Max Rheinstein (Tübingen, Mohr Siebeck, 1969). 77 M Volcansek, ‘Bargaining Constitutional Design in Italy: Judicial Review as Political Insurance’ (2010) 33 West European Politics 280, 286, referring to M Cicconetti, M Cortese, G Torcolini and S Traversa (eds), La costituzione della repubblica: nei lavori preparatori della assemblea costituente (Rome, Chamber of Deputies, 1970). In addition, the ordinary judiciary did not seem suitable: they would not be able to adopt judgments with binding erga omnes effects and the fact that they had been working during the fascist period cast doubt on their willingness to enforce the liberal democratic philosophy underpinning the new constitution: see J Merryman and V Vigoriti, ‘When Courts Collide: Constitution and Cassation in Italy’ (1967) 15 American Journal of Comparative Law 665, 667–68. 78 G D’Orazio, La genesi della Corte costituzionale (Milan, Comunità, 1981) 28–32 (mentioned in W Nardini, ‘Passive Activism and the Limits of Judicial Self-Restraint: Lessons for America from the Italian Constitutional Court’ (1999) 30 Seton Hall Law Review 1, 11) refers to unsuccessful proposals for some form of judicial review in 1925–26, prompted by the tendency of the government to make legislation by decree. 79 See Nardini, ‘Passive Activism and the Limits of Judicial Self-Restraint’ (n 78) 11–12 and the authorities listed therein; A Pizzorusso, V Vigoriti and G Certoma, ‘The Constitutional Review of Legislation in Italy’ (1983) 56 Temple Law Quarterly 503, 503–04. Constitutional law no 1 of 11 March 1953 specified that the constitutional court should refrain from making political evaluations or questioning the way Parliament had made use of its discretionary power. 80 The relevant implementing acts are constitutional law no 1 of 9 February 1948, constitutional law no 1 of 11 March 1953, and law no 87 of 11 March 1953. 81 Part of the problem was that the political party that was initially in favour of establishing a constitutional court because it believed that it would end up in opposition, proved considerably less forthcoming in making the Corte costituzionale work after it transpired that it would actually control the next government: see Volcansek, ‘Bargaining Constitutional Design in Italy’ (n 77) esp 287–89. Certain aspects were never regulated in legal norms, such as the types of decision that the constitutional court can adopt, and it has been left to the Corte costituzionale itself to provide answers in its case law. These are discussed in ch 7. 82 Italian constitution, transitional and final provision VII. 83 See L Del Duca, ‘Introduction of Judicial Review in Italy: Transition from Decentralized to Centralized Review (1948–1956) – A Successful Transplant Case Study’ (2009) 28 Penn State International Law Review 357, in particular 360–64 and the references contained therein.

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civil rights provisions of the new constitution were programmatic in character and thus required implementing legislation before they could be invoked before the courts.84 In its first judgment, the Corte costituzionale rejected this line of reasoning and asserted its power to examine pre-republican (and fascist) legislation for constitutionality.85 It thereby affirmed that it would take seriously its role as supreme guardian of the constitution. Finally, two more recent developments should be mentioned.86 First, the Italian constitutional court is increasingly considered to play a political role. This is due, on the one hand, to the 2001 ‘quasi-federal’ state reform that involved a strengthening of the position and responsibilities of the regions,87 and which has meant that the Corte costituzionale is more often cast in the role of arbiter in resolving disputes between the State and the regions. On the other hand, several changes to the design and functioning of Italy’s political system resulted in a somewhat terse relationship between the judiciary, Corte costituzionale included, and political office-holders, most prominently former prime minister Silvio Berlusconi.88 Second, over the years the Corte costituzionale has devised certain techniques that have allowed it to share its task of upholding the constitution with the ordinary Italian courts, emphasising that they too have certain responsibilities in enforcing constitutional provisions and principles against the political branches of government.89 iii. Spain: Tribunal Constitucional When Spain emerged from General Franco’s fascist dictatorship, one of the main issues on the political agenda was the drafting of a new, democratic constitution. In view of past experiences, there was a strongly felt need to ensure due protection of the guarantees laid down in the constitution, including the commitment to individual fundamental rights.

Corte suprema di cassazione, Judgment of 7 February 1948, Marcianò Giur It 1948, II, 129. Sentenza 1/1956 of 14 June 1956. See, further, J Adams and P Barile, ‘The Italian Constitutional Court in its First Two Years of Activity’ (1957) 7 Buffalo Law Review 250; A Pizzorusso, ‘Présentation de la Cour constitutionnelle italienne’ [1999] no 6 Cahiers du Conseil constitutionnel, who argues that the break-out of the Cold War caused a rift between the pro-American majority parties and the pro-Soviet minority parties and effectively prevented Parliament from enacting new legislation and abolishing old statutes, which in turn provided the Corte costituzionale with an important window of opportunity to carve out its role and position within the Italian constitutional order. 86 T Groppi, ‘The Italian Constitutional Court: Towards a “Multilevel System” of Constitutional Review?’ (2008) 3 Journal of Comparative Law 100 provides an overview of the earlier activity of the court. The two developments discussed in the main text are mentioned at 115–17. 87 Constitutional law no 3 of 18 October 2001; constitutional law no 1 of 22 November 1999; constitutional law no 2 of 31 January 2001. 88 See eg F Fabbrini, ‘Prime Minister Berlusconi, the Judiciary and the Duty of Loyal Cooperation in a Recent Decision of the Italian Constitutional Court’ (2011) 2 Tijdschrift voor Constitutioneel Recht 214; G Martinico, ‘The Berlusconi Judgment: A Brief Case Note on the Decision of the Italian Constitutional Court (n.262/2009)’ (2010) 16 European Public Law 231. 89 See ch 6, section V-B and ch 7, section III-A; see also E Lamarque, ‘Interpreting Statutes in Conformity with the Constitution: The Role of the Constitutional Court and Ordinary Judges’ (2010) 1 Italian Journal of Public Law 91; P Pasquino, ‘Constitutional Adjudication and Democracy. Comparative Perspectives: USA, France, Italy’ (1998) 11 Ratio Juris 38. In addition, the Corte costituzionale is investing in its relationship with the Court of Justice of the European Union (making its first preliminary reference in ordinanza 103/2008 of 15 April 2008) and with the European Court of Human Rights (granting its case law and the European Convention on Human Rights the status of ‘intermediate law’, occupying a place in the hierarchy of sources below the constitution but above ordinary acts of parliament, see sentenza 347/2007 of 19 October 2007 and sentenza 348/2008 of 24 October 2007). For more detail, see ch 5, section VII. 84 85

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There was widespread agreement across the political spectrum90 and in academia91 as to the identity of the principal guardian of the constitution: a separate constitutional court was to be established. Spain already had some experience with the judicial enforcement of the provisions and principles of the constitution against other State organs in the form of the Court of Constitutional Guarantees (Tribunal de Garantías Constitucionales) under the second Spanish republic, which had been in operation from 1931 until 1936.92 In addition, the ordinary courts were not considered suitable for performing the duty of protecting the integrity of the new constitution, since their members had been trained by and worked under the previous fascist regime and there were accordingly severe doubts as to whether they would be able, and willing, to ensure respect for the constitutional provisions, principles and values.93 The drafters of the Spanish constitution were further inspired by the German and Italian constitutional systems and the decision to establish a special constitutional court was ‘due in part to the extremely positive reception of such courts in Italy and Germany’.94 Finally, the new Spanish constitution also brought about changes as regards the territorial organisation of the state. The highly centralised structure established under General Franco’s regime was replaced by a certain degree of vertical separation of powers between the state and the autonomous communities.95 Similar to Belgium and Germany, there was consequently also a need for an arbiter to resolve competence conflicts among the various levels of government. This could be considered all the more pressing given the relative vagueness in which the distribution of competences was cast.96 Against this background, the 1978 Spanish constitution ushered in the Tribunal Constitucional as an essential feature, and safeguard, of the new democratic constitutional system. Eibert comments that ‘The importance attached to the Tribunal is indicated by the fact that it was the subject of the first organic law passed by the Cortes [parliament] after the adoption of the Constitution’.97 This was Organic Law (Ley Orgánica) 2/1979, which 90 The provisions on the constitutional tribunal were approved with near unanimity by the committee charged with preparing the constitution and the congress of deputies: (1978) 115 Diario de Sesiones del Congreso de los Diputados 4515–30. 91 The work of Eduardo García de Enterría has been particularly influential in this respect: La constitucíon como norma y el Tribunal Constitucional, 3rd edn (Madrid, Editorial Civitas, 1985). 92 Established by the Spanish constitution of 9 December 1931, on which see eg M Bassols Coma, La jurisprudencia del tribunal de garantías constitucionales de la II república española (Madrid, Centre de Estudios Constitucionales, 1981). See also P Cruz Villalón, La formación del sistema europeo de control de constitucionalidad (1918–1939) (Madrid, Centre de Estudios Constitucionales, 1987). The Austrian constitution of 1920 and its separate constitutional court were influential in the decision to entrust constitutional oversight to this tribunal as opposed to the ordinary judiciary: see P Pérez Tremps, Tribunal Constitucional y poder judicial (Madrid, CEC, 1985). 93 Pérez Tremps, Tribunal Constitucional y poder judicial (n 92) 107–9; E Lopez, ‘Judicial Review in Spain: The Constitutional Court’ (2008) 41 Loyola of Los Angeles Law Review 529, 532; V Ferreres Comella, ‘The Spanish Constitutional Court: Time for Reforms’ (2008) 3 Journal of Comparative Law 22, 23. 94 Lopez, ‘Judicial Review in Spain’ (n 93) 530. 95 Spanish constitution, Arts 143–58. See, further, P Cruz Villalón, La estructura del estado o la curiosidad del jurista persa (Madrid, Revista de la facultad de derecho de la universidad complutense, 1981); for a more recent examination of the Spanish design of the distribution of competences among the various levels of government in a comparative perspective, see N Skoutaris, Territorial Pluralism in Europe: Federalism, Regionalism and Decentralisation in the EU and its Member States (Oxford, Hart Publishing, 2014). 96 This constitutional vagueness can also be beneficial in that it allows for the accommodation of conflicting interests at the time of drafting and thereafter, and a gradual fleshing out of the relations between the central level and the lower echelons: see J Garcia Roca, Autonomías territoriales y forma de estado: contribución al estudio de la forma territorial del Estado espanõl (Madrid, Universidad Complutense, 1985). 97 M Eibert, ‘The Spanish Constitutional Tribunal in Theory and Practice’ (1982) 18 Stanford Journal of International Law 435, 438.

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fleshes out in more detail the internal organisation, competences and methods of access to the Tribunal Constitucional.98 From its early case law onwards, the Spanish constitutional tribunal has played a signi ficant role in inducing respect for the constitution as the supreme law of the land in the minds of politicians and ordinary judges alike.99 However, more recently, the Tribunal Constitucional has been under siege: it faces a vast and growing workload, which is caused primarily by the ability of individuals to file complaints with the Tribunal, alleging that public officials have infringed their fundamental rights;100 and its relationship with both the political branches of government and the other Spanish courts has recently been marred by tensions and conflicts.101 iv. Czech Republic: Ústavní Soud To place the Czech system of constitutional review in its proper historical context, we need to go back to the Versailles Peace Conference of 1918, when the nation of Czechoslovakia was created. The 1920 constitution of the Czechoslovak republic established a relatively well-functioning democracy, with a number of checks and balances.102 Among the institutions set up by this first constitution was a separate constitutional court, modelled after the Austrian Verfassungsgerichtshof that was Hans Kelsen’s intellectual progeny,103 and empowered to review the constitutionality of legislation.104 The practical significance of this institution was rather limited105 and its activities came to a halt in 1941 in the aftermath of the 98 This constitutional law also entrusted the Tribunal Constitucional with some new competences, including the power to perform a priori scrutiny of organic laws and statutes of the autonomous communities, discussed in ch 3. 99 See eg Ferreres Comella, ‘The Spanish Constitutional Court’ (n 93); Lopez, ‘Judicial Review in Spain’ (n 93). 100 This is the recurso de amparo (Spanish constitution, Art 161(1)(b)) and one of the instruments used to ensure the adequate protection of individual rights and freedoms in the new constitutional order. The conditions for filing a recurso de amparo are examined in ch 3, section III-B. 101 As regards the former, the Tribunal Constitucional has been called upon more regularly to act as an arbiter in competence conflicts between the central government and the autonomous communities, notably dealing with the politically sensitive issue of the compatibility of comprehensive amendments to the statutes of several autonomous communities with the Spanish constitution. As regards the latter, there have been some high profile clashes between the Tribunal Constitucional and the Spanish supreme court. One of these is described in ch 7, section III-B; more generally, see eg P Cruz Villalón, ‘Conflict between Tribunal Constitucional and Tribunal Supremo: A National Experience’ in I Pernice, J Kokott and C Saunders (eds), The Future of the European Judicial System in a Comparative Perspective (Baden-Baden, Nomos, 2011); L Turano, ‘Spain: Quis Custodiet Ipsos Custodes? The Struggle for Jurisdiction between the Tribunal Constitucional and the Tribunal Supremo’ (2006) 4 International Journal of Constitutional Law 151. 102 The French and US constitutional systems were important models for the drafters of the Czechoslovak constitution: see L Cutler and H Schwartz, ‘Constitutional Reform in Czechoslovakia: E Duobus Unum? ’ (1991) 58 University of Chicago Law Review 511, 513; J Prˇibánˇ , ‘Judicial Power vs Democratic Representation: The Culture of Constitutionalism and Human Rights in the Czech Legal System’ in W Sadurski (ed), Constitutional Justice, East and West: Democratic Legitimacy and Constitutional Courts in Post-Communist Europe in a Comparative Perspective (The Hague, Kluwer Law International, 2002) 373. 103 H Kelsen, ‘Wesen und Entwichlung der Staatsgerichtsbarkeit’ (1929) 5 Veröffentlichungen der Verenigigung der Deutschen Staatsrechtslehrer 48; H Kelsen, ‘Judicial Review of Legislation: A Comparative Study of the Austrian and the American Constitution’ (1942) 4 Journal of Politics 183. 104 1920 constitution, Art II; law of 9 March 1920 no 162/1920 Coll. The constitutional court was primarily responsible for deciding whether laws were compatible with the constitutional charter (stipulating fundamental rights and freedoms). See generally The Constitution of the Czech Republic (with introduction by J Hoetzl and V Joachim) (Prague, Édition de la société l’effort de la Tchécoslovaquie, 1920). 105 See K Klíma, ‘La justice constitutionnelle en république tchèque’ in M Verdussen (ed), La justice constitutionnelle en Europe centrale (Brussels, Bruylant, 1997) 194; T Langáš, Ústavní soud cˇeskoslovenské republiky a jeho osudy v letech 1920–1948 (Plzenˇ , Aleš Cˇ eneˇ k, 2011), English excerpts from which can be found on the website of the Czech constitutional court; see further E Taborsky, Czechoslovak Democracy at Work (London, George Allen and Unwin, 1945), who discusses the functioning of the 1920 Czechoslovak republic more generally.

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country’s occupation by Nazi Germany. The Communist era in Czechoslovakia commenced in February 1948 and under the newly enacted Communist constitution, it was for the Parliament – and thus in actual fact for the Communist Party itself – to see to it that its statutes would comport with the constitution.106 In the aftermath of the 1968 Prague Spring uprising, the Communist constitution was amended to reform the unitary Czechoslovak socialist republic into a federal state, comprising a Czech and Slovak republic.107 In addition, an attempt was made to revive some form of constitutional adjudication. Another amendment adopted in 1968 provided for the creation of a constitutional court for the Czechoslovak federation and two additional constitutional courts, one each for the newly constituted Czech and Slovak republics.108 However, due to the failure to adopt the necessary implementing laws, none of these courts would ever see the light of day. Following the fall of Communism after the 1989 ‘Velvet Revolution’, the Czechoslovak republic embarked upon a process of constitution-making.109 Two important issues that were singled out for immediate attention were the protection of citizens’ fundamental rights, which had been trampled under the previous regime, and the design of the truly functioning federal system, in which the two national republics would enjoy considerable powers. It was decided to entrust the protection and enforcement of the new constitution to a strong constitutional court.110 It has been observed that the 1920 constitution and the 1968 constitutional amendment ‘served as the model’, both as regards the decision to establish such a special judicial body and as regards its institutional and procedural design.111 Another factor influencing the preference for a separate constitutional court was the dearth of ordinary judges not tainted by Communist rule and the prevailing tendency among judges not to question the authority of the legislature.112 According to a leading commentator: ‘If the whole process of the constitutional transformation is determined by the reconstruction of liberal democracy, the adoption of the Charter [of fundamental rights and freedoms] and legal acts [dealing with] the Constitutional Court represent the

106 1948 constitution, Art 65 initially entrusted this duty to the Chair Committee of the Parliament, with a later constitution specifying that this review should be carried out by Parliament as a whole. Article 65 has been described as ‘dead letter law’ by Prˇ ibánˇ , ‘Judicial Review vs Democratic Representation’ (n 102) 374. 107 In reality, Czechoslovakia very much continued to function as a unitary state and the practical relevance of the transformation to a federation was minimal. 108 The amendments were carried out by Constitutional Act no 143/1968 on the Czechoslovak Federation. On constitutionalism during Communist rule, see eg J Prˇ ibánˇ , ‘Legitimacy and Legality after the Velvet Revolution’ in J Prˇ ibánˇ and J Young (eds), The Rule of Law in Central Europe (Aldershot, Ashgate, 1999). 109 Foreign – mainly American – experts in constitutional law were also quite heavily involved in the process, notably Lloyd Cutler and Herman Schwarz, as recalled in W Osiatynski, ‘Paradoxes of Constitutional Borrowing’ (2003) 1 International Journal of Constitutional Law 244, 255–57. 110 This court was created by means of an amendment to the existing constitution (ie Constitutional Act no 91/1991 on the Constitutional Court of the Czech and Slovak Federative Republic) and a law detailing the organisation and procedures of the constitutional court of 26 March 1991. As under the post-1968 Communist constitution, provision was made for both of the two republics to establish their own constitutional court, but neither the Czech nor the Slovak republic did so. 111 Cutler and Schwartz, ‘Constitutional Reform in Czechoslovakia’ (n 102) 538. The Czech constitutional court also refers back to the heritage of the 1920 democratic constitutional order in its judgments: see eg Judgment Pl ÚS 14/94, Beneš Decrees. The German Bundesverfassungsgericht was also a source of inspiration, notably as far as the fundamental rights jurisdiction of the constitutional court was concerned: see eg P Holländer, ‘The Role of the Constitutional Court for the Application of the Constitution in Case Decisions of Ordinary Courts’ (1997) 4 Parker School Journal of East European Law 445; L Favoreu, Les courts constitutionnelles, 2nd edn (Paris, PUF, 1992). 112 Even following transition, it has been observed that ‘Czech judges perceive themselves as docile interpreters of the will of the legislator’: M Bobek, ‘The Fortress of Judicial Independence and the Mental Transitions of the Central European Judiciaries’ (2008) 14 European Public Law 99.

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successful liberal aspect of this reconstruction’ (emphasis in original).113 The constitutional court commenced operations in February 1992, but only managed to issue some 16 judgments, before the dissolution of the Czechoslovak federation on 1 January 1993.114 Both the new Czech Republic and the new Slovak Republic have maintained the institution of the constitutional court in their new constitutions, modelled to a great extent after their federal predecessor.115 The current Czech constitutional court – the Ústavní Soud – is thus a body with a rich heritage. v. Poland: Trybunał Konstytucyjny The inception of constitutional adjudication in Poland has its intellectual origins in the interbellum, with a large part of the scholarly discourse expressing itself in favour of the creation of a constitutional court.116 Several legislative proposals to this effect were suggested, but the political climate proved hostile to their implementation.117 Constitutional doctrine supporting judicial review of the constitutionality of legal acts was revived during the Communist regime, from the early 1960s onwards.118 A first practical step towards constitutional adjudication was taken in 1976, when the Council of State – the principal executive body of the Communist government – was bestowed the competence ‘to watch over the constitutionality of laws’.119 In reality, however, the exercise of this power came to nothing. Four years later, in response to continuing calls for judicial scrutiny of government behaviour, the Communist regime decided to create the High Administrative Court, which could review sub-statutory acts for conformity with the constitution and with acts of parliament.120 This Court has been credited with constructing ‘a favourable atmosphere for the emergence of further mechanisms of constitutional protection’.121 Indeed, political and public sentiment alike began to reveal support for the establishment of a constitutional tribunal, notably in the aftermath of the 1980 Polish summer and the Solidarity movement (Solidarnosc). To accommodate growing popular discontent, and ‘in response to demand for more effective safeguards of the rule of law and the supremacy of the Constitution’,122 in 1982 the Communist regime established the Trybunał Konstytucyjny (constitutional tribunal).123 In terms of structure and composition, the constitutional tribunal was Prˇ ibánˇ , ‘Judicial Review vs Democratic Representation’ (n 102) 376. On the lead-up to this process, see eg K Mathernova, ‘Czecho-Slovakia: Constitutional Disappointments’ (1992) 7 American University Journal of International Law and Policy 471. On the dissolution, see eg M Kraus and A Stranger (eds), Irreconcilable Differences? Explaining Czechoslovakia’s Dissolution (London, Rowman & Littlefield, 2000). 115 Czech constitution, Arts 83–89; Slovak constitution, Arts 124–40. 116 M Brzezinski, ‘The Emergence of Judicial Review in Eastern Europe: The Case of Poland’ (1993) 41 American Journal of Comparative Law 153, 161–64. 117 L Garlicki, ‘The Influence of American Constitutional Ideas on the Development of Constitutionalism in Poland and Eastern Europe’ in K Thompson and R Ludwikowski (eds), Constitutionalism and Human Rights: America, Poland and France (Lanham, University of America Press, 1991) 54–55. In fact, both the 1921 and the 1935 Polish constitutions contained a ban on judicial review of acts of parliament. 118 Brzezinski, ‘The Emergence of Judicial Review in Eastern Europe’ (n 116) 169–70. 119 1952 Polish constitution, Art 30(3). 120 Dziennik Ustaw (Journal of Laws), no 4, item no 8 of 1980. 121 L Garlicki, ‘Constitutional Developments in Poland’ (1987) 32 St Louis University Law Journal 713, 720. 122 S Gebethner in Resolution of the Congress of the Polish Bar of 4 January 1981, nos 3–4, cited in Garlicki, ibid, 720. 123 In addition, a Tribunal of State was created to adjudicate impeachment charges against high political officials. For more detail, see Garlicki, ‘Constitutional Developments in Poland’ (n 121) 721–24. At the same time, the competence of the Council of State to examine the constitutionality of laws was abolished. 113 114

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modelled after its German, Austrian and Italian counterparts.124 However, the Communist Party was unwilling to relinquish too much power to a judicial body to the detriment of classic doctrines of Communism. The Trybunał Konstytucyjny’s jurisdiction was accordingly restricted in several respects.125 Most salient for present purposes was the limitation of the binding effects of some of its decisions: judgments finding that an act of parliament did not pass constitutional muster were placed before Parliament, which could either accept them or overrule the finding of unconstitutionality by a two-thirds majority vote.126 The upshot was that the Polish constitutional tribunal initially showed itself to be extremely reluctant to strictly review laws for their constitutionality and instead devoted most of its time and energy ensuring that sub-statutory enactments were in keeping with the constitution and the body of primary legislation. In the words of one commentator: During this period, parliamentary statutes were a point of reference rather than the object of review, and the parliament was the main beneficiary of constitutional review. Because the Tribunal’s decisions protected parliamentary statutes against infringement by the administration, the Tribunal became recognised as a custodian of parliamentary power, not as a mechanism that vigorously controlled the constitutionality of parliamentary statutes.127

After the collapse of Communism in Poland 1989, it was decided to retain the constitutional tribunal as the principal guardian of the constitution128 and its competences were expanded.129 However, a number of the prior constraints were kept in place, including the contingent validity of findings of unconstitutionality. Still, notwithstanding the continued possibility of an override, the Tribunal was far more willing than during Communist rule to control the constitutionality of statutes.130 It was only with the advent of a new constitution and a new Act on the Trybunał Konstytucyjny in 1997 that the Parliament’s right to overturn judgments declaring legislation unconstitutional was abolished.131 The adoption L Garlicki, ‘La justice constitutionnelle en Pologne’ in Verdussen (ed), La justice constitutionnelle (n 105) 89. For instance, the constitutional tribunal could only examine laws that entered into force after it had been established; there was no right for individuals to submit petitions directly to the constitutional tribunal; and the constitutional tribunal was prevented from examining the conformity of laws with international treaties, such as the International Covenant on Civil and Political Rights. For more detailed discussion, see eg Brzezinski, ‘The Emergence of Judicial Review’ (n 116) 184–86. For rather scathing criticism of the initial design of the Trybunał Konstytucyjny see S Frankowski, ‘A Comment on Professor Garlicki’s Article “Constitutional Developments in Poland”: The Lyrics Sound Familiar, But Are they Really Playing our Song?’ (1987) 32 St Louis University Law Journal 737, eg at 741: ‘the Tribunal is designed as a mechanism to improve the internal efficiency of the system, but not to challenge its most fundamental assumptions.’ 126 Polish constitution, Art 33(2) (‘Judgments of the Constitutional Tribunal on nonconformity of laws with the Constitution are subject to examination by the Sejm [Parliament]’). See further below, ch 7, section II-B(ii). 127 M Brzezinski, ‘Constitutionalism within Limits’ (1993) 2 East European Constitutional Review 38, 41. 128 Although some drafters had been in favour of granting every judge the power to assess statutes for constitutionality, as they believed this could ‘speed up the transition to constitutionalism’, this option was never fully explored, due to the hostile responses from the constitutional tribunal, amongst others: Osiatynski, ‘Constitutional Borrowing’ (n 46) 260. 129 The necessary constitutional changes were initially effected through the adoption of a number of amendments to the 1952 Communist constitution. The resulting document was referred to as the ‘small’ or ‘little’ constitution of 1992 in legal writing. 130 See M Brzezinski and L Garlicki, ‘Judicial Review in Post-Communist Poland: The Emergence of a Rechtsstaat?’ (1995) 31 Stanford Journal of International Law 13, which discusses salient aspects of the case law of the constitutional tribunal from its inception to late 1994. 131 To be clear, it is still possible in Poland – as in other countries – to override decisions of the Trybunał Konstytucyjny by amending the constitution. This override mechanism is explored in more detail in ch 7, section II-B(ii). The 1997 constitution and Act on the Trybunał Konstytucyjny also eliminated the other original limitations on the tribunal’s jurisdiction and granted it the power to receive constitutional complaints and examine whether international treaties conform with the constitution. 124 125

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of the 1997 constitution and relevant implementing legislation of that same year are thus the culmination of the quite remarkable evolution of the Polish Trybunał Konstytucyjny, from its birth in a hostile Communist setting to its transformation into a mature, fullyfledged constitutional court. vi. Hungary: Alkotmánybíróság Hungary’s first brush with constitutional review of legislation took the shape of a parliamentary constitutional law council, established in 1983 under Communist rule. This body could pronounce on the constitutionality of legal norms, but in practice displayed little incentive to actively do so. Akin to developments in Poland, the establishment of this constitutional law council however paved the way for a discussion among opposition groups and scholars in favour of a genuine and effective guardian of the constitution.132 More generally, from the 1980s onwards, increased pressure on the Communist regime for reform culminated in a ‘negotiated revolution’133 towards democracy in the form of the 1989 National Roundtable Talks.134 These Roundtable Talks were held between members of the former Communist Party (which had by then been renamed the Hungarian Socialist Workers Party), members of the Opposition Roundtable and representatives of a number of social organisations. The outcome of the Roundtable was a series of amendments to – which in practice amounted to a comprehensive overhaul of – the pre-existing 1949 Stalinist constitution, rather than the drafting and adoption of a fresh constitutional text.135 The amendments entered into force on 23 October 1989.136 The proposal to establish a constitutional court – the Alkotmánybíróság – was a last minute addition. It was presented by the then-minister for justice with the following words: I am of the view that [the establishment of a constitutional court] can serve to satisfy us all that in Hungary today there is no political power, nor is there any notable political force, which would not pursue, or wish to pursue, its political activity within a constitutional framework, reckoning with and accepting the institutional system of constitutional control.137

While the opposition agreed to the creation of a constitutional court, it insisted on some modifications to the court’s design to ensure that this institution would indeed be able to uphold the constitution and enforce its provisions and principles against the other State organs.138 It is clear that both sides were unequivocal about the need to introduce such a 132 L Trócsányi, ‘La justice constitutionnelle en hongrie’ in Verdussen (ed), La justice constitutionnelle (n 105) 53–54. 133 This phrase was coined by László Bruszt in ‘1989: The Negotiated Revolution in Hungary’ in A Bozóki, A Körösényi and G Schöpflin (eds), Post-Communist Transition: Emerging Pluralism in Hungary (London, Pinter, 1992). 134 On Hungary under socialist rule and the transition to democracy, see generally R Tökes, Hungary’s Negotiated Revolution: Economic Reform, Social Change and Political Succession (Cambridge, Cambridge University Press, 1996). 135 Act XXXI of 1989 on the amendment of the constitution. 136 An overview of the main features of the Hungarian constitution following the 1989 amendments can be found in A Jakab, ‘The Republic of Hungary’ in G Flanz, R Wolfrum and R Grote (eds), Constitutions of the Countries of the World (Oxford, Oxford University Press, 2008). 137 ‘Justice Minister Kulcsár Presents Bill on Constitutional Court’, BBC Summary World Broadcasts, 21 October 1989, mentioned in KL Scheppele, ‘Guardians of the Constitution: Constitutional Court Presidents and the Struggle for the Rule of Law in Post-Soviet Europe’ (2006) 154 University of Pennsylvania Law Review 1757, 1775. 138 For instance, the original proposal envisaged the ability of parliament to overturn court rulings and limited rules on access.

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judicial body in their new constitutional order,139 and that they were in part motivated by strategic considerations: There is evidence that both sides – the socialist government and the opposition – viewed the court as one of the institutional guarantees that would protect them in case the other side would win [sic] a decisive victory in the first elections and the court was therefore equipped with a vast number of competences.140

The Hungarian constitutional court commenced work on 1 January 1990, prior to the first democratic parliamentary elections. Led by its first emblematic president László Sólyom, the court embarked upon the exercise of its responsibilities with gusto and soon acquired a reputation for being extremely activist.141 Although the constitutional court displayed more restraint under later presidents and with different compositions,142 it continued to occupy a prominent position within the Hungarian constitutional order, partially due to its very broad jurisdictional remit.143 The latest incidence in relation to the system of constitutional adjudication in Hungary took place in the wake of the 2010 parliamentary elections. The Fidesz Party won 68 per cent of the seats in Parliament and, together with its coalition party, had enough support to successfully use the procedure to change the constitution. One such amendment, adopted towards the end of 2010, circumscribes the jurisdiction of the constitutional court to review the constitutionality of budget and tax legislation.144 In addition, the Fidesz Party commenced work on the drafting of a new constitution, because this was considered necessary to complete Hungary’s transition from its Communist past to its democratic present.145 The new text – called the Fundamental Law of Hungary, to distinguish it from its

139 See eg G Brunner, ‘Structure and Proceedings of the Hungarian Constitutional Judiciary’ in L Sólyom and G Brunner, Constitutional Judiciary in a New Democracy: The Hungarian Constitutional Court (Ann Arbor, University of Michigan Press, 2000) 69. 140 C Boulanger, ‘Europeanisation through Judicial Activism? The Hungarian Constitutional Court’s Legitimacy and Hungary’s “Return to Europe” ’ in W Sadurski, A Czarnota and M Krygier (eds), Spreading Democracy and the Rule of Law? (Dordrecht, Springer, 2006). See, further, Trócsányi, ‘La justice constitutionnelle en hongrie’ (n 132) 54–56; G Halmai, ‘The Transformation of Hungarian Constitutional Law from 1985 to 2005’ in A Jakab, P Takács and A Tatham (eds), The Transformation of the Hungarian Legal Order 1985–2005: Transition to the Rule of Law and Accession to the European Union (Deventer, Kluwer Law International, 2007) 2–3. This rationale for the creation of a constitutional judiciary would appear to fit in with the thesis advanced by Hirschl, Towards Juristocracy (n 1), who argues that the turn to constitutional adjudication can be explained by the desire of incumbent elites to ‘insulate their policy preferences from the vicissitudes of democratic politics’ before they are voted out of office and who believe that the courts will later protect their interests. A slightly different version of the same argument is offered by Ginsburg, Judicial Review in New Democracies (n 3), who calls his version the ‘insurance model of judicial review’. 141 G Halmai, ‘The Hungarian Approach to Constitutional Review: The End of Activism? The First Decade of the Hungarian Constitutional Court’ in Sadurski (ed), Constitutional Justice, East and West (n 102); S Zifcak, ‘Hungary’s Remarkable, Radical, Constitutional Court’ (1996) 3 Journal of Constitutional Law in Eastern and Central Europe 1. More particularly on Sólyom, see KL Scheppele, ‘Guardians of the Constitution’ (n 137). 142 KL Scheppele, ‘The New Hungarian Constitutional Court’ (1999) 8 East European Constitutional Review 81; Halmai, ‘The Transformation of Hungarian Constitutional Law’ (n 140) 5–18, discussing the first three presidents. 143 In particular, under the actio popularis, anyone could access the court to challenge the constitutionality of legislation. 144 This amendment was criticised, including by the constitutional court itself, which published a press release on its website condemning the reduction of its competences (‘Press release on the modification of the Constitutional Court’s fields of competences’, 5 November 2011). 145 Previous attempts to replace the 1949 constitution as amended in 1989 with a new constitution were undertaken in the mid-1990s, but failed due to a lack of consensus in Parliament.

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predecessor, in relation to which the term ‘constitution’ is used146 – came into effect on 1 January 2012. It has attracted considerable criticism, at home as well as abroad.147 For our purposes, the confirmation of the curtailment of the powers enjoyed by the constitutional court as regards the assessment of budgetary laws and changes to the appointment process of its judges are most noteworthy.148 These issues will be revisited in later chapters, which feature amongst other things a discussion of the pre-2012 rules on access to the Hungarian constitutional courtroom to provide the context within which to understand the initial claims of judicial activism as well as the recent reforms.

C. The Impact of the ECHR and of EU Membership The two rationales discussed so far that have led countries to introduce some form of constitutional adjudication derive from concerns and pressures internal to the domestic order. The third reason is linked to external pressures stemming from a country’s membership of the European Union and its ratification of the European Convention on Human Rights (ECHR). According to well-established case law of the Court of Justice of the European Union (CJEU), EU law enjoys primacy over all national law, including rules of a constitutional nature.149 Moreover, rules of EU law that are sufficiently clear and unconditional enjoy direct effect in the domestic legal order as a matter of EU law.150 This means that individuals can submit to the national courts claims that domestic legal rules, acts of parliament included, are incompatible with EU law. In turn, every national judge has the competence to check parliamentary enactments against EU law and is under a duty to disregard conflicting provisions of national law.151 As we shall see in chapter seven, for countries that have established separate constitutional courts, the CJEU’s case law has impacted on the position of these courts within the domestic legal order and their relationship with the regular courts.152 Furthermore, and of particular interest here, for countries that entrust the function of constitutional review to non-judicial actors, and in particular rely on Parliament itself to uphold the constitution, the upshot of this case law is that statutes are no longer completely immune from judicial scrutiny. Turning to the ECHR, this Convention has its own ultimate guardian in the form of the European Court of Human Rights in Strasbourg, which has the power to rule on claims by individuals and states alleging a breach of one of the rights guaranteed in 146 The preamble to the Fundamental Law even proclaims that the ‘Communist Constitution of 1949, since it was the basis of a tyrannical rule’, is considered to be invalid. 147 See eg European Commission for Democracy through Law (Venice Commission), Opinion on the New Constitution of Hungary (CDL-AD(2011)016, Venice, 17–18 June 2011); European Commission for Democracy through Law (Venice Commission), Opinion on Act CLI of 2011 on the Constitutional Court of Hungary (CDL-AD(2012)009, Venice, 15–16 June 2012); G Halmai and KL Scheppele (eds), ‘Opinion on Hungary’s New Constitutional Order: Amicus Brief for the Venice Commission on the Transitional Provisions of the Fundamental Law and the Key Cardinal Laws’, http://lapa.princeton.edu/hosteddocs/hungary/Amicus_Cardinal_Laws_final. pdf. 148 For a general overview, see K Kovács and GA Tóth, ‘Hungary’s Constitutional Transformation’ (2011) 7 European Constitutional Law Review 183. 149 Case 6/64 Flaminio Costa v ENEL [1964] ECR 585; Case 11/70 Internationale Gesellschaft mbH v Einfuhrund Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125. 150 Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 13. 151 Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 629. 152 See ch 7, section V-C.

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the Convention.153 Judgments finding a violation are binding on the State concerned and it must execute them,154 which may involve amending or adopting legislation. Faced with this external human rights check and the mandate of national courts to review legislation under EU law, countries have at times felt inclined to rethink their stance towards allowing national judges to assess whether laws comport with the constitution. Finland is a case in point. i. Finland Prior to 2000, Finnish legal doctrine and judicial practice accepted that courts could review the constitutionality of decrees and other executive norms, but were not competent to pronounce on the constitutional conformity or otherwise of acts of parliament.155 This was the task of the intra-parliamentary Constitutional Law Committee (Perustuslakivaliokunta), which is conceived as the ultimate guardian of the Finnish constitution and is responsible for assessing legislative proposals on constitutional grounds.156 Accordingly, the result was a state of affairs ‘where courts would not invoke the Constitution at all’ and would similarly refrain from referring to international human rights treaties that had become part of the domestic legal system in their decisions.157 Then in 1990, Finland ratified the ECHR and incorporated its provisions into domestic law.158 This was something of a watershed moment in Finnish constitutional culture. Individuals could now go to Strasbourg claiming to be a victim of a violation of human rights, and exposure to this external mechanism for monitoring human rights compliance and a growing familiarity with the case law of the Strasbourg Court meant that Finnish judges gradually became ‘convinced of the fact that human rights law is really law, by all international and domestic standards’.159 This, in turn, resulted in Finnish courts being more inclined to rely on human rights treaties in their judgments, and the number of references to the ECHR in particular increased considerably.160 Around that time, a process of constitutional reform was initiated with a view to revising and strengthening the fundamental rights enshrined in the constitution, with the ECHR being the main source of inspiration for the drafters. The revamped constitutional Bill of Rights entered into force in 1995. That same year, Finland acceded to the European Union and Finnish courts acquired the competence to decide whether they should disregard national legislation on the ground that it violates EU law, thereby bringing to an end the pre-existing situation where acts of parliament were exempt from judicial scrutiny. ECHR, Arts 32–35. ECHR, Art 46. The Council of Ministers, one of the bodies of the Council of Europe, monitors whether and how states have executed judgments and can adopt sanctions when it finds a failure to do so. 155 This review relied on an a contrario reading of s 92 of the Finnish constitution (as it was then): ‘If a provision in a decree is contrary to the Constitution or other law, it shall not be applied by a judge or other official.’ The Finnish constitution, s 107 now incorporates the duty of constitutional review of decrees and other norms below the rank of act of parliament. 156 Finnish constitution, s 74. This Committee is discussed in more detail in ch 1, section III-B(i). 157 J Lavapuro, T Ojanen and M Scheinin, ‘Rights-Based Constitutionalism in Finland and the Development of Pluralist Constitutional Review’ (2011) 9 International Journal of Constitutional Law 505, 511–12. They explain this tendency by pointing to the prominent position historically occupied by the legislature in the constitutional order and the idea that the judiciary should be seen as a junior partner, together with the existence of a strong doctrine of legal positivism and an instrumentalist understanding of the role of legislation. 158 Finland is dualist. 159 M Scheinin, ‘General Introduction’ in M Scheinin (ed), International Human Rights Norms in the Nordic and Baltic Countries (The Hague, Kluwer Law International, 1996) 17, indicating that this phenomenon is not specific to Finland but also has relevance for other Nordic countries and the Baltic States. 160 T Ojanen, ‘From Constitutional Periphery toward the Center: Transformations of Judicial Review in Finland’ (2009) 27 Nordic Journal of Human Rights 194. 153 154

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These developments were important catalysts in prompting a comprehensive reform of the Finnish constitution, which culminated in the entry into force of a new Constitution Act on 1 March 2000.161 The most noteworthy change for present purposes is that all Finnish courts have acquired the power to review the constitutionality of legislation when handling specific controversies.162 According to section 106: ‘If, in a matter being tried by a court of law, the application of an act would be in evident conflict with the Constitution, the court of law shall give primacy to the provisions in the Constitution.’163 Importantly, the ability of judges to examine laws against the constitution is intended as a last resort and as a complement to rather than a substitute for the pre-existing system of ex ante parliamentary scrutiny of the constitutionality of legislative proposals. This follows clearly from the requirement that there must be an ‘evident conflict’ (ilmeinen ristiriita) before judges may disregard an act of parliament when deciding a specific case. The travaux préparatoires underline that section 106 should only be used when it has not been possible to read the relevant legislative provision in harmony with the constitution: courts should first and foremost discharge their duty to uphold the constitution by interpreting laws in a ‘constitutional rights-friendly’ manner.164 Moreover, it is specified that if the Constitutional Law Committee has already reviewed and cleared the law in question, judges are in principle not to decide differently. Doing so would be acceptable only in exceptional circumstances: In the [Constitutional Law] Committee, the constitutionality of laws is examined, as it were, at a general level, in abstracto, whereas a court assesses the issue in the context of a concrete case. Hence, it is possible that a court detects a contradiction which the Committee has not addressed at all. In such a situation, the requirement for evident conflict can exceptionally be met although the law has passed the control of the Constitutional Law Committee.165

Finnish courts have to date appeared to heed this idea of a limited role for judicial enforcement of the constitution and have only infrequently found laws unconstitutional, showing

161 J Nousiainen, ‘The Finnish System of Government: From a Mixed Constitution to Parliamentarism’ (2000), www.om.fi/21910.htm, 11. 162 The question as to the need to establish a constitutional court was also discussed, but rejected for a host of reasons: it would upset the existing institutional balance, would not fit in well with Finnish constitutional culture and traditions, and was in general seen as unnecessary, given the satisfactory way in which the Constitutional Law Committee exercises constitutionality control. The possible introduction of a constitutional court had also been debated in the 1970s, where the majority of the committee entrusted with preparing a possible constitutional reform had also been against such a change, for largely similar reasons: see the Report of the committee (Komiteanmietintö 1974:27). More generally, see V-P Hautamäki, ‘The Question of Constitutional Court: On its Relevance in the Nordic Context’ in J Husa, K Nuotio and H Pihlajamaki (eds), Nordic Law: Between Tradition and Dynamism (Antwerp, Intersentia, 2007). 163 During the 1917–19 deliberations on a new constitution, a proposal was tabled that would have given judges competence to disapply acts of parliament that had not been adopted in accordance with the proper procedure. The Constitutional Law Committee, however, recommended that this proposal should be rejected, in light of the effectiveness of its own ex ante review, which is what happened: see K Tuori, ‘Landesbericht Finnland’ in A von Bogdandy, P Huber and C Grabenwarter (eds), Ius Publicum Europaeum – Band VI: Verfassungsgerichtsbarkeit im europäischen Rechtsraum (Heidelberg, CF Müller, forthcoming) para 1.2. 164 HE (Government Bill) 1/1998, at 164. This interpretation method was developed by the Constitutional Law Committee in its Report 25/1994. 165 ibid. The other scenario envisaged in the travaux préparatoires that may justify a court deciding differently to the Constitutional Law Committee is in the event of a change in constitutional doctrine, in particular if much time has passed between scrutiny by the Committee and the case pending before the court. See also Report 10/198 of the Constitutional Law Committee, which similarly espouses the need for courts to duly consider and respect its reports and statements; and J Husa, ‘Guarding the Constitutionality of Laws in the Nordic Countries: A Comparative Perspective’ (2000) 48 American Journal of Comparative Law 345, 366.

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considerable deference to the views of the Constitutional Law Committee.166 Although voices from academia have criticised the courts’ policy of judicial restraint and have suggested removing the evident-conflict criterion,167 parliamentarians pronounced themselves in favour of retaining section 106 in its original form when debating several constitutional modifications in 2010.168 The political climate and constitutional practice thus remain predisposed towards the pre-eminence of the Constitutional Law Committee as the body that is chiefly responsible for protecting and ensuring respect for the Finnish constitution. Turning briefly to two other Nordic countries that are also members of the EU, Danish and Swedish courts could already scrutinise parliamentary enactments under the national constitutions prior to these countries ratifying the ECHR and joining the EU. Still, instances of judicial censure of laws have been few and far between.169 Until January 2011, Swedish courts too could only disregard a law when deciding a specific dispute if applying the legislative provision would bring about an ‘obvious’ (uppenbar) conflict with the con stitution.170 Following a constitutional revision, this threshold requirement has been abolished.171 In Denmark and Sweden, Europeanisation has not affected the decision to empower the judiciary to perform constitutional review, but it does seem to have effected a change in judicial practice and in doctrinal attitudes towards the appropriateness of courts checking parliamentary enactments against the constitution and international legal norms. Finally, it has also been argued that the desire to join the European Union – and become a contracting party to the Council of Europe and the ECHR – has played a role in the decision of central and eastern European countries to introduce constitutional adjudication, usually by establishing a separate constitutional court. Accounts differ, though, on the precise impact of this external rationale as compared with other elements pushing in the same direction, in particular seeking to break with and avoid a repetition of past arrangements.172

166 By 2011, s 106 had been applied in only four cases: supreme court KKO 2004:26; supreme administrative court KHO 2008:25; insurance court 6254:2005; and Helsinki administrative court decision of 9 October 2006 T:06/1410/1 (quashed on appeal by the supreme administrative court, KHO 2007:77). An English description of these cases can be found in Lavapuro, Ojanen and Scheinin, ‘Rights-Based Constitutionalism in Finland’ (n 157) 524–28; see also V-P Hautamäki, ‘Novel Rules in the Finnish Constitution: The Question of Applicability’ (2007) 52 Scandinavian Studies in Law 134, in particular 148 ff. 167 Lavapuro, Ojanen and Scheinin, ‘Rights-Based Constitutionalism in Finland’ (n 157); T Ojanen, ‘Eduskunnan perustuslakivaliokunta ja tuomioistuimet – kohti valtiosääntöistä dialogia?’ in Mikael Híden Juhlajulkaisu 1939– 7/12-2009 (Helsinki, Finnish Lawyers’ Association, 2009) 247 ff, but contrast eg Tuori, ‘Landesbericht Finnland’ (n 163). 168 The relevant proposal for the constitutional revisions, HE (Government Bill) 60/2010, did not suggest a modification of s 106, in line with the views of the commission that had carried out preparatory work. 169 Andreas Føllesdal and Marlene Wind speak of a traditional Nordic reluctance to embrace judicial constitutional review, and offer a number of explanatory strategies in ‘Introduction: Nordic Reluctance towards Judicial Review under Siege’ (2009) 27 Nordic Journal of Human Rights 131. One important explanation considers the many participatory elements of the Nordic democratic tradition, which have resulted in a culture intent on finding compromise, internalising political conflicts, and a belief that the legislature has been able to take into account all legitimate concerns in the process of lawmaking, obviating the need for subsequent control by unelected judges. 170 Swedish Instrument of Government ch 11:14. 171 In its relevant part, the constitutional provision now reads as follows: ‘In the case of review of an act of law under paragraph one, particular attention must be paid to the fact that the Riksdag [Parliament] is the foremost representative of the people and that fundamental law takes precedence over other law.’ 172 For instance, Wojchiech Sadurski has considered the central and eastern European studies in great detail and he considers this to be one of the weakest rationales: Rights before Courts (n 51) 40–58.

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IV. BUCKING THE TREND? A CLOSER LOOK AT THE APPROACHES OF THE NETHERLANDS AND THE UNITED KINGDOM

So far, we have considered various reasons that have spurred countries to entrust courts with the task of protecting the constitution against infringements. In this section, we will consider the approach adopted by the Netherlands and the United Kingdom to the institution of constitutional review. These countries have so far refrained from granting their courts constitutional jurisdiction in the strict sense and instead profess that it is ultimately for Parliament to uphold the constitution and ensure that legislation does not fall foul of constitutional rules and values.173 Although the Netherlands and the United Kingdom have often been considered traditional bulwarks of parliamentary sovereignty for this reason, that epithet can no longer be applied without qualification. Some of the inroads are homegrown, while others stem from the same developments that prompted Finland to recognise a limited form of judicial constitutional review, namely membership of the European Union and ratification of the ECHR.

A. The Netherlands The Dutch constitution explicitly prohibits judicial enforcement of the constitution against the legislature. Article 120 posits that ‘The constitutionality of acts of parliament and treaties shall not be reviewed by the courts’.174 The prohibition was inserted in the constitution in 1848 at the behest of the government, and, despite some change in the wording,175 it still stands today. It is premised on the notion that the legislature is the ultimate interpreter of the constitution and sought to codify the constitutional praxis that had developed before 1848, when judges were never called upon to pronounce on the constitutionality of legislation.176 The trust placed by the constitution-maker in the legislature has largely endured: 173 In the United Kingdom, the intra-parliamentary House of Lords Constitution Committee is an important body in this regard, and in the Netherlands, the same can be said about the Council of State in its advisory capa city. The role of both institutions in upholding the constitution is set out in ch 1, section III-B(ii) and section II-A respectively. 174 In a provocative article, Mark Tushnet proposes and defends an amendment to the US constitution modelled on Art 120 of the Dutch constitution: ‘Abolishing Judicial Review’ (2010) 27 Constitutional Commentary 581 (prepared for the symposium entitled ‘The US Constitution (Rev. Ed.): How Would You Rewrite the US Constitution?’). 175 It was initially provided in even more unequivocal terms that ‘Laws are inviolable’ in Art 115(2) of the Dutch constitution of 1848. 176 As the Royal Commission tasked with the preparation of the 1815 constitutional revision remarked: ‘La Loi Fondamentale des Provinces-Unies avait réservé à la Commission qui l’a rédigée, le droit d’en interpréter les dispositions, pendant les 3 premières années. Nons avons pensé qu’une Loi, exprimant nécessairement le sentiment unanime du Roi et des deux Chambres des États Généraux, c’est à la Loi que doit être laissée cette interprétation, qui n’est autre chose que la saine application des Articles de l’Acte Constitutionnel du Royaume’ [translation: ‘The fundamental law of the [Republic of the Seven] United Provinces reserved to the committee responsible for its drafting, the right to interpret the provisions thereof for the first three years. We are of the opinion that a law, necessarily expressing the unanimous sentiment of the King and the two Houses of Parliament, that it is for the law[makers] to be given this [right of] interpretation, which is nothing but the sound application of the provisions of the constitutional charter of the kingdom’]: H Colenbrander, Ontstaan der grondwet, Deel 2 (Leiden, Martinus Nijhoff, 1815) 559, in D Elzinga, R de Lange, H Hoogers and C van der Pot, Handboek van het Nederlandse Staatsrecht, 15th edn (Deventer, Kluwer, 2006) 203.

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the current system of constitutional review is considered to function in a largely satis factory way. This is due in part to the role played by the Council of State, which, as an independent advisor to the government and Parliament, delivers opinions on inter alia the compatibility of bills with the constitution (and other higher norms) and the role of the Dutch Senate as a ‘chambre de réflexion’177 which considers itself responsible for checking the quality and constitutional conformity of bills, rather than focusing on their political desirability.178 There is further a traditional wariness of judicial activism and a general inclination to approach questions of constitutional law in a pragmatic manner, with a corresponding discomfort about developing grand theories of constitutional law based on abstract principles such as ‘democracy’ or ‘sovereignty’.179 Related to this, the Dutch constitution used to be at the periphery in politics and public debates, which was seen as desirable: the constitution was seen as an expression of the settlements of the past180 and its absence from the limelight was taken to denote constitutional harmony.181 In recent years, this perception has begun to change and there is now more emphasis on bolstering the role and importance of the Dutch constitution in public life.182 Dutch courts have given a wide interpretation to the prohibition laid down in Article 120 of the constitution. The provision is understood to preclude review of the substantive compatibility of legislation with constitutional provisions183 and of whether the proper procedure for enacting laws has been followed.184 Further, the courts hold that neither the Charter of the Kingdom of the Netherlands185 nor unwritten principles of constitutional law may be used as benchmarks against which laws can be assessed.186 The courts can, however, give effect to the constitution by making use of the technique of constitutionconform interpretation, which entails reading legislation in accordance with the provisions Translation: ‘chamber of reflection’. See, for example, its 2003/2004 Annual Report at p 11, www.eerstekamer.

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nl. For a more detailed discussion of the role of the Dutch Council of State, see ch 1, section II-A. Neither of these notions is explicitly mentioned in the Dutch constitution, although they have made an appearance in some academic works: see eg M van Emmerik, ‘De Nederlandse grondwet in een veellagige rechtsorde’ (2008) 4 Rechtsgeleerd magazine themis 145; L Besselink et al, De Nederlandse grondwet en de Europese Unie (Groningen, Europa Law Publishing, 2002) 28–39. 180 The Dutch Minister of the Interior and Kingdom Relations has spoken about the constitution as ‘the solidified past; it expresses continuity’: speech on the occasion of the receipt of the Report of the Royal Commission for the Revision of the Constitution, 11 November 2010. 181 It should be remarked that the Dutch constitution has various features that are conducive to such an approach: the document is sober and lacks a preamble or other ideological statements; it has no clear identifiable core or provisions that are considered immutable; and not all the relevant constitutional rules can be found in the document bearing the title ‘constitution’ (for example, the rule concerning ministerial accountability to Parliament is not included). 182 Consider, for example, the 2009 Royal Commission for the Revision of the Constitution, which was asked to advise on the need for constitutional amendment in relation to certain topics, within the wider framework of reinforcing the constitution: see annex to the Decision of 3 July 2009, no 09.001852 establishing the commission and the 2010 Report by two members of the Council of State, J de Poorter and H van Roosmalen, Rol en betekenis van de grondwet: constitutionele toetsing in relatie tot de Raad van State (The Hague, Council of State, 2010) proposing to enhance the prominence of the constitution in the advisory and adjudicatory work carried out by the Council of State. Various developments contributed to this change in perception of the role of the constitution: the increasing importance of international law, technological developments and the related notion of the digital society, and the growing diversity and pluriformity of Dutch society. 183 Supreme Court, 28 February 1868, W 2995; Supreme Court, 9 January 1924, NJ 1924, 296. 184 Supreme Court, Van den Bergh/Staat der Nederlanden, 27 January 1961, NJ 1963, 248. 185 The Charter regulates the relationship between the various components of the Kingdom of the Netherlands: its European territory on the one hand (the Netherlands) and the Caribbean islands of Aruba, Curacao and St Maarten on the other. The constitution is only applicable to the Netherlands. 186 Supreme Court, Harmonisatiewet, 14 April 1989, NJ 1989, 469. 178 179

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of the constitution.187 Also, in a 1989 case, the Dutch supreme court declared that the law before it infringed the fundamental principle of legal certainty, although it accepted that it could not attach any legal consequences to this finding of incompatibility as a result of Article 120.188 It should further be pointed out that Dutch courts are competent to examine the constitutionality of legal rules that are of lower rank than acts of parliament, although they have not been particularly forthcoming in this respect. Primary legislation is not completely immune from judicial scrutiny in the Netherlands, however. Article 93 of the constitution stipulates that provisions in treaties or resolutions adopted by international institutions acquire direct effect in the Dutch legal order upon their publication.189 Article 94 provides that directly effective provisions of international law prevail over all conflicting national legal rules, the Dutch constitution included. Accordingly, all courts have the power to examine the compatibility of acts of parliament with directly effective provisions of international law and disregard the former in the event of a conflict. In addition, the Netherlands was one of the founding members of the European Union and as a result of the case law of the CJEU, Dutch courts must refrain from applying provisions of national law that do not comport with EU law when deciding specific disputes. The corollary of all this is a minimisation of the importance of the constitution in court decisions, while the practical significance of international law and European law in ordin ary adjudication has been greatly enhanced. This is true in particular for international human rights treaties and among these, the ECHR has assumed the role of the country’s de facto or substitute constitution. In the Netherlands, the judiciary is thus authorised by the constitution to examine the compatibility of legislation with provisions of international law and EU law, but prevented from reviewing those same laws against the constitution. There have been calls at various points in time to reform Article 120 so as to redress this anomaly and reinforce the authority and relevance of the constitution in court decisions.190 None of these has thus far carried the day, however. In 2002, the gauntlet was taken up once more when an MP submitted a private member’s bill for the introduction of a limited form of judicial constitutional review of primary legislation.191 The proposal does not envisage the abolition of Article 120, but makes an exception to the prohibition laid down therein. A second paragraph will be added, which empowers judges to review acts of parliament against a selected number of constitutional provisions – namely those guaranteeing Supreme Court, 19 February 1858, Weekblad van het recht, no 1936. Supreme Court, Harmonisatiewet, 14 April 1989, NJ 1989, 469. 189 The Netherlands is among the countries that practise monism when it comes to the way in which international treaties take effect in the domestic legal order. The monist approach to international law in the Netherlands was first recognised in the Supreme Court in Grenstractaat Aken, 3 March 1919, NJ 1919, 371. 190 For instance, in the most recent comprehensive constitutional revision in 1983, the majority of the CalsDonner Royal Commission (charged with preparing this revision) recommended the abolition of the prohibition on judicial constitutional review. The government, however, followed the minority in the commission, which was in favour of retaining the ban. Subsequently, in 1991, the Lubbers III cabinet revisited the question and articulated its preliminary position as being in favour of introducing a limited form of concentrated constitutional jurisdiction in its ‘Nota rechterlijke toetsing’ (‘Memorandum judicial review’), but was unable, following advice from inter alia the Council of State and the supreme court, to come to a final position on the issue. In 1997, the government again asked the supreme court for advice, but was again unable to articulate a government position. Finally, in 2000, the commission advising on fundamental rights in the digital era recommended lifting the prohibition on judicial constitutional review as regards fundamental rights that are directly effective. 191 The so-called Halsema proposal, after the name of the MP: see Kamerstukken II, 2001/2002, 28 331, nos 1–3. See also L Besselink, ‘Constitutional Adjudication in the Era of Globalization: The Netherlands in Comparative Perspective’ (2012) 18 European Public Law 231, 240 ff. 187 188

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classic fundamental rights – and in the event of a conflict, decide not to apply the offending legislation in concrete cases. Although the text of the proposal does not expressly say so, a system of review is contemplated whereby each and every court – rather than only a separ ate constitutional court – can assess whether parliamentary enactments comport with the specific constitutional benchmarks.192 As in Finland, it should be appreciated that the aim of the proposal is not to radically overhaul the balance of power between legislature and judiciary: constitutional adjudication is envisaged as an additional check, but it remains first and foremost for the legislature to uphold and enforce the constitution.193 The constitutional revision procedure in the Netherlands is rigorous.194 Both Houses of Parliament must agree to the constitutional amendment on two occasions (readings), whereby a general election should take place before the lower House can consider the amendment for the second time; and while a simple majority suffices for the amendment to be passed at first reading, during the second reading a two-thirds majority rule applies in both Houses. While the proposal has managed to jump the first hurdle,195 at the time of writing it was stuck in its second reading in the lower House196 and the likelihood that it will eventually become constitutional law appears slim. Finally, there have been developments of note in the wider kingdom of the Netherlands, which comprises a number of Antilles islands in addition to the country in Europe. The kingdom has been going through a process of state reform, which has culminated in three of the six Antilles islands becoming special municipalities and the three other islands obtaining the status of autonomous countries within the kingdom.197 Of the latter three, St Maarten and Curacao introduced some form of constitutional review by their courts in late 2010. The first of these established a special constitutional court, which has the duty to review laws adopted by the St Maarten legislature under the St Maarten constitution.198 Only the ombudsman can submit a claim that a legislative provision is unconstitutional and she can only do so before the impugned law is promulgated. In addition, all other courts have the power to decide in an ongoing adjudication that a legislative provision is incompatible with the St Maarten constitution and disregard it when deciding a specific case.199 In Curacao, all courts are able to review laws adopted by the Curacao legislature for compatibility with classic fundamental rights enshrined in the Curacao constitution.200

192 Memorie van toelichting, Kamerstukken II 28 331 no 3, at 16–17. The Scientific Council for Government Policy, a body that advises the government on future developments of great public interest, has also pronounced itself on the proposal. While it endorses the introduction of judicial constitutional review, it favours the establishment of a separate constitutional court as a means to safeguard the Dutch constitution in the European integration process: Report to the Government No 78, Europa in Nederland (Europe in the Netherlands) (2007), 85–86. 193 Kamerstukken II 28 331 no 3, at 14. 194 Dutch constitution, Art 137. 195 With the slim majority of a single vote in the Senate. 196 See most recently Kamerstukken II 32 334, no 5, Verslag van de vaste commissie voor Binnenlandse Zaken en Koninkrijksrelaties. 197 Aruba had already been given a special status (‘status aparte’) within the kingdom. 198 Staatsregeling of Sint Maarten, Art 127. See also the Landsverordening Constitutioneel Hof, Afkondigingsblad van Sint Maarten, 2010 GT no 29. 199 Staatsregeling of Sint Maarten, Art 119. This form of constitutional adjudication is conditional on there being a sufficient interest and the relevant constitutional provision being amenable to use as a benchmark for review. 200 Staatsregeling van Curacao, Art 96. This provision closely resembles the Halsema proposal.

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B. United Kingdom As an introductory comment, it should be pointed out that the United Kingdom does not have a single, written and entrenched text bearing the title of ‘constitution’. Adopting a descriptive approach, the UK constitution is made up of several sources.201 These include legal rules and principles laid down in certain fundamental acts of parliament (also known as statute law)202 and articulated in court decisions (the so-called common law) as well as actual political practices, referred to as constitutional conventions.203 A cardinal feature of the UK constitutional system is the doctrine of parliamentary sovereignty. According to Dicey’s classic statement this means that: Parliament [which refers to the monarch, House of Lords and House of Commons acting together] has, under the English Constitution, the right to make or unmake any law whatsoever; and further . . . no person or body is recognised by the law of England as having the right to override or set aside the legislation of Parliament.204

For present purposes, the salient facts are that Parliament has the final say on the compatibility of its laws with the UK constitution – with the House of Lords Constitution Committee playing an important role in this regard205 – and that the judiciary lacks the competence to strike down or disregard statutes on constitutional grounds.206 Since Dicey’s time, a number of constitutional developments have taken place that have qualified the absolute nature of the doctrine of parliamentary sovereignty or have otherwise influenced the role of the courts within the UK constitutional system. These will be sketched in chronological order. 201 For a succinct overview, see P Leyland, The Constitution of the United Kingdom: A Contextual Analysis, Constitutions of the World, 2nd edn (Oxford, Hart Publishing, 2012) ch 2; for a more elaborate discussion see C Turpin and A Tomkins, British Government and the Constitution: Text and Materials, 6th edn (Cambridge, Cambridge University Press, 2007) ch 3. 202 Formally, all acts of parliament are equal and every statute can thus be considered to be part of the UK constitution. However, the courts have acknowledged that there are constitutional principles and fundamental rights that can only be limited by clear language in the act of parliament purporting to do so: see R v Secretary of State for the Home Department, ex parte Pierson [1998] AC 539 (per Lord Steyn: ‘Parliament legislates for a European liberal democracy based upon the principles and traditions of the common law . . . and . . . unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law’); see also R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 (per Lord Hoffmann: ‘Fundamental rights cannot be overridden by general or ambiguous words . . . In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document’). See also Laws LJ in Thoborn v Sunderland City Council [2003] QB 151, who distinguishes between ‘ordinary’ and ‘constitutional’ statutes (such as Magna Carta, the 1689 Bill of Rights and the Human Rights Act 1998) and argues that the doctrine of implied repeal does not apply to the latter category. 203 The important role of political customs and constraints led Griffith to characterise the UK constitution as a political constitution: JAG Griffith, ‘The Political Constitution’ (1979) 42 MLR 1. After describing this characterisation as ‘one of the most brilliant insights into the UK system in recent years’, Oliver goes on to note that as a result of the adoption of a number of statutes with constitutional implications, such as the Human Rights Act 1998 and the devolution statutes, ‘Griffith’s political constitution has been substantially “legalised” ’: D Oliver, ‘The United Kingdom’ in D Oliver and C Fusaro (eds), How Constitutions Change: A Comparative Study (Oxford, Hart Publishing, 2011) 332 and 342 respectively. 204 AV Dicey, Introduction to the Study of Law of the Constitution, 10th edn (London, Macmillan, 1959) 39–40. 205 See ch 1, section III-B(ii) for more on this Constitution Committee. 206 See also the 1689 Bill of Rights, Art 9: ‘proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament’.

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A first catalyst for change was the accession of the United Kingdom to the (now) European Union in 1973, which was made possible domestically through the adoption of the European Communities Act 1972. As explained earlier, the Court of Justice of the European Union has espoused the view that EU law prevails over all domestic law, parliamentary enactments included, and that every national judge must be able to enforce this supremacy by refusing to apply conflicting national rules. The implications for the doctrine of parliamentary sovereignty became particularly clear in the Factortame saga, which concerned the compatibility of certain amendments to the UK Merchant Shipping Act with the freedom of establishment guaranteed by the European Treaties.207 The applicants had requested interim relief, which would entail the UK courts (temporarily at least) denying effect to the amendments made by Parliament. This, however, was not a possible remedy under English law as it then stood. After the Court of Justice had clarified that in cases falling within the scope of EU law, national courts should be able to grant interim relief if this was necessary to ensure the full effectiveness of the rights that individuals derive from EU law,208 Lord Bridge in the House of Lords said: Under the terms of the Act of 1972 it has always been clear that it was the duty of a United Kingdom court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law. . . . Thus there is nothing in any way novel in according supremacy to rules of Community law in those areas to which they apply and to insist that, in the protection of rights under Community law, national courts must not be inhibited by rules of national law from granting interim relief in appropriate cases is no more than a logical recognition of that supremacy. (emphasis added)209

After Factortame and the later decision of the House of Lords in R v Secretary of State for Employment, ex parte Equal Opportunities Commission,210 it is clear that all UK courts can review acts of parliament under EU law and if a conflict is established, they have the authority to suspend and disregard the incompatible national legislative provisions. This entails a significant incursion into the principle that courts cannot call the legal validity of statutes into question. Further developments of note took place in 1998. In that year, the Human Rights Act (HRA) 1998 was adopted, which incorporates most of the provisions of the European Convention on Human Rights into UK law and made these enforceable in domestic courts.211 Under the HRA, courts have acquired two core powers.212 Under section 3, they are under a duty to interpret all legislation in harmony with the Convention rights ‘so far as it is possible to do so’.213 If such Convention-conform interpretation is impossible, For a detailed discussion, see Turpin and Tomkins, British Government and the Constitution (n 201) 327–35. Case C-213/89 R v Secretary of State for Transport, ex parte Factortame Ltd [1990] ECR I-2433. 209 R v Secretary of State for Transport, ex parte Factortame (No 2) [1991] 1 All ER 70. 210 R v Secretary of State for Employment, ex parte Equal Opportunities Commission [1991] AC 603. 211 The HRA came into force on 2 October 2000. On the HRA, see eg L Betten (ed), Human Rights Act 1998: What it Means: The Incorporation of the ECHR into the Legal Order of the United Kingdom (Dordrecht, Springer, 1999); J Wadham and H Mountfield, Blackstone’s Guide to the Human Rights Act 1998 (Oxford, Oxford University Press, 1999); and, more recently, T Hickman, Public Law after the Human Rights Act (Oxford, Hart Publishing, 2010); N Kang-Riou (ed), Confronting the Human Rights Act: Contemporary Themes and Perspectives (London, Routledge, 2011). 212 These are examined in more detail in ch 7, section II-B(i). 213 The courts have taken a broad view as to when this is indeed possible, and do not eschew reading in ‘implied provisions’ or using section 3 when the language of the statute at issue is unambiguous. The two leading cases in this respect are R v A (No 2) [2002] 1 AC 45 and Ghaidan v Godin-Mendoza [2004] UKHL 30. Both cases are discussed extensively in A Kavanagh, Constitutional Review under the UK Human Rights Act (Cambridge, Cambridge University Press, 2009) chs 2 and 3. 207

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section 4 gives higher courts the competence to issue a declaration of incompatibility. It is then for Parliament to decide whether and if so how to remedy this incompatibility, for instance by amending the offending statute.214 A leading commentator has remarked that ‘The HRA calls upon the courts to act as constitutional judges and to review for compliance [acts of parliament] with principles of constitutionality’.215 In 1998, the United Kingdom also embarked upon a process of devolution, whereby certain legislative and executive powers were transferred from Westminster to Scotland, Northern Ireland and later also Wales.216 The determination of whether the acts of the devolved authorities are within the powers granted to by the Westminster Parliament is ultimately entrusted to the courts.217 At the time, the Judicial Committee of the Privy Council218 adjudicated devolution matters at final instance. Finally, we must consider two events from 2005. In the case of R (Jackson) v AttorneyGeneral,219 some members of the House of Lords outlined possible limits to parliamentary sovereignty in obiter observations. Lord Steyn said: The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our Constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.

While this view is controversial and has been rejected in some academic quarters,220 it evinces changing conceptions of the role of the judiciary and the orthodox understanding of the doctrine of parliamentary sovereignty. That same year, the Constitutional Reform Act 2005 was adopted as part of the efforts of the Labour Government to ensure a clearer separation of powers between the legislature, the executive and the judiciary. Amongst other things, this act established the Supreme 214 This can be done by means of the ordinary lawmaking procedures or by using the special fast-track procedure for the adoption of delegated legislation (so-called remedial orders) laid down in s 10 HRA 1998. 215 Kavanagh, Constitutional Review under the UK Human Rights Act (n 213) 6. 216 This was done through the adoption of the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006. On the process of devolution, see eg V Bogdanor, Devolution in the United Kingdom (Oxford, Oxford University Press, 2001); R Hazell and R Rawlings (eds), Devolution, Law Making and the Constitution (Exeter, Imprint Academic, 2005); and the annual State of the Nations Yearbook series written by the Constitution Unit at University College London. 217 ‘Devolution issues’ are defined to encompass judicial scrutiny of whether the acts of the devolved legislative and executive authorities are compatible with the Convention rights and with EU law: Scotland Act 1998, sch 6, para 1; Northern Ireland Act 1998, sch 10, para 1; Government of Wales Act 2006, sch 9, para 1. 218 The Judicial Committee of the Privy Council is the highest court of appeal for many current and former Commonwealth countries and UK overseas territories and dependencies, and exercised residual jurisdiction in relation to appeals from within the United Kingdom until 2005. 219 R (Jackson) v Attorney-General [2005] UKHL 55, speeches of Lord Steyn, Lord Hope and Baroness Hale. For academic comment, see eg A Young, ‘Hunting Sovereignty: Jackson v Her Majesty’s Attorney General’ [2006] PL 187; M Elliott, ‘The Sovereignty of Parliament, the Hunting Ban and the Parliament Acts’ (2006) 65 CLJ 1; M Plaxton, ‘The Concept of Legislation: Jackson v Her Majesty’s Attorney General’ (2006) 69 Modern Law Review 249; T Mullen, ‘Reflections on Jackson v Attorney General: Questioning Sovereignty’ (2007) 27 Legal Studies 1. 220 See eg R Ekins, ‘Acts of Parliament and the Parliament Acts’ (2007) 123 LQR 91.

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Court of the United Kingdom,221 which duly commenced operations on 1 October 2009.222 The Supreme Court has replaced the Judicial Committee of the House of Lords as the final court of appeal, ruling amongst other things on the compatibility of UK legislation with the HRA 1998 and EU law, and it has also taken over the devolution jurisdiction of the Privy Council. According to its first annual report, [i]n these and some others respects it represents a constitutional court’.223 In sum, we can say that the doctrine of parliamentary sovereignty as elaborated by Dicey today no longer applies in an absolute fashion in the United Kingdom. Yet it would be a mistake to assume that the doctrine is irreversibly on its way out. Notwithstanding advances in the powers of English courts vis-à-vis Parliament, primary legislation continues to pay respect to parliamentary sovereignty: for instance, under the HRA, courts have been denied the power to strike down acts of parliament that they consider to be incompatible with any of the Convention rights, because of ‘the importance which the Government attaches to Parliamentary sovereignty’.224 More generally, the relationship between the courts and Parliament can be said to be in a state of flux and continues to be vehemently debated in academia and beyond, fuelled by the constitutional developments in 1998 and 2005.225

V. CONCLUDING REMARKS AND SOME BRIEF REFLECTIONS ON THE TWO EUROPEAN COURTS

In the past decades, there have been several waves of constitutional justice that have followed each other in rapid succession.226 An increasing number of countries around the world have chosen to grant courts the power to engage in some form of constitutional review and decide constitutional issues. It is no exaggeration to say that constitutional justice has become a veritable worldwide phenomenon, as for instance evinced in the organisation of the first World Conference on Constitutional Justice in 2009, which brought together courts with constitutional jurisdiction from across the globe to debate issues of common interest and to foster judicial cooperation.227

221 Other matters regulated by the Constitutional Reform Act 2005 include reform of the position of Lord Chancellor and new rules on the appointment and dismissal of judges. 222 See eg A Le Sueur (ed), Building the UK’s New Supreme Court: National and Comparative Perspectives (Oxford, Oxford University Press, 2004); D Woodhouse, ‘The Constitutional and Political Implications of a United Kingdom Supreme Court’ (2004) 24 Legal Studies 134; A Le Sueur, ‘From Appellate Committee to Supreme Court: A Narrative’ in L Blom-Cooper, B Dickson and G Drewry (eds), The Judicial House of Lords, 1876–2009 (Oxford, Oxford University Press, 2006); J Lee (ed), From House of Lords to Supreme Court: Judges, Jurists and the Process of Judging (Oxford, Hart Publishing, 2011). 223 Supreme Court Annual Report and Accounts 2009–10 (HC 64) 19. This sentence has been repeated in every Annual Report since: see eg Supreme Court Annual Report and Accounts 2011–12 (HC 26) 21. 224 Rights Brought Home: The Human Rights Bill, White Paper preceding the introduction of the Human Rights Act 1998 in Parliament, Cm 3782 (1997), para 2.13. 225 See eg T Bingham, The Rule of Law (London, Penguin, 2010) ch 12; C Forsyth (ed), Judicial Review and the Constitution (Oxford, Hart Publishing, 2000); J Goldsworthy, The Sovereignty of Parliament (Oxford, Oxford University Press, 2001); A Tomkins, Our Republican Constitution (Oxford, Hart Publishing, 2005); J Jowell, ‘Parliamentary Sovereignty under the New Constitutional Hypothesis’ [2006] PL 562. 226 See L Favoreu, Les cours constitutionnelles, 3rd edn (Paris, Presses Universitaires de France, 1996) 4. 227 The World Conference on Constitutional Justice and the role of the Venice Commission as one of the organisers are discussed in ch 7, section IV-B.

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Europe has been an ‘epicenter’228 when it comes to the choice to rely on courts as the ultimate guardians of the national constitution. This chapter has charted three reasons that have induced European countries to assign to judicial bodies the duty of enforcing constitutional rules and principles. In Belgium and France, the original purpose was to preserve the new constitutional settlement as regards the allocation of powers among levels of government and among State organs. The raison d’être of the constitutional courts in Germany, Italy, Spain, the Czech Republic, Poland and Hungary is linked to the transition to dem ocracy, with the constitutional framers being concerned to safeguard the integrity and supremacy of the new constitution, its underlying values and the protection of individual rights. We have, however, seen that there were also other reasons that motivated their choosing a system of judicial constitutional review. One of these seems to be the (anticipatory) influence of the Council of Europe and European Union; and membership of these two organisations has been identified as a reason that may account, at least partially, for the development of a limited form of constitutional adjudication in Finland. This brings us to the two outliers: the Netherlands and the United Kingdom. That Dutch and UK courts lack the power to strike down or disregard laws found to be in conflict with the constitution can be explained with reference to their stable constitutional history and the continuity that imbues their constitutional order. There have been no gross human rights violations in either country and they have not experienced the internal turmoil associated with transitioning to democracy or overhauling the pre-existing division of powers arrangement. At the same time, the impact of being a party to the ECHR and a member of the EU has been felt keenly in both countries. While this has certainly resulted in an enhanced role for the courts vis-à-vis the legislature, it has so far not led to a paradigm shift as regards the functioning of the institution of constitutional review in these countries, although the traditional doctrine of parliamentary sovereignty has been qualified in important respects. It should be noted here that Finland’s constitutional culture and tradition are in many respects comparable to those of the United Kingdom and the Netherlands. As such, an interesting similarity between these three countries, which have all refrained from accepting (a strong form of) constitutional adjudication, is that they all rely on non-partisan bodies that are independent of the government and the ruling majority to ensure respect for constitutional rules and principles (ie, the Finnish Constitutional Law Committee, the UK House of Lords Constitution Committee and the Dutch Council of State). Generally speaking, the circumstances surrounding the emergence of constitutional adjudication shape the scope of the mandate of, and the design of methods of access to, the competent court(s) and their position within the wider constitutional order. At the same time, the story of courts with constitutional jurisdiction is a dynamic one: their portfolios can, and do, change and it can thus come to be that judicial bodies established with the primary aim of keeping the peace between different organs of the State in fact spend most of their time protecting fundamental rights or vice versa, as we shall see in the next chapter. The proliferation of constitutional justice is not limited to national legal systems. Within the institutional setting of the European Union and the Council of Europe, we also find courts that exercise some form of judicial constitutional review and that are described as (being akin to) constitutional courts. Within the EU, this is the institution presently known as the Court of Justice of the European Union (CJEU), whose origins can be traced back to 228 A Stone Sweet, ‘Constitutional Courts’ in M Rosenfeld and A Sajó (eds), Oxford Handbook of Comparative Constitutional Law (Oxford, Oxford University Press, 2012) 816.

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the 1950s. The 1951 Treaty of Paris, which set up the European Coal and Steel Community, introduced the Court as having a mainly administrative jurisdiction.229 The Court was in particular to guarantee that decisions taken by the executive – known as the High Authority – conformed to the treaty and it could to that end receive petitions from the Member States, while firms and associations were also given a limited right of access to the Court.230 This design is said to have represented a compromise between the French delegation, which was quite reluctant to have any sort of permanent judicial body on the one hand, and the Benelux countries and Germany on the other hand, which all favoured such an institution, but for different reasons: Eager to set up a mechanism capable of controlling the [High Authority]’s discretion, the Benelux states fought for a Court protecting the member states first and foremost . . . Meanwhile, the Germans championed a court that would not merely protect the member states against the excesses of the [High Authority], but also act as a constitutional court.231

The founding fathers of the 1957 Treaties of Rome, which established the European Economic Community and the European Atomic Energy Community (Euratom), also agreed to provide for judicial oversight of the exercise of powers by the Council and the Commission by establishing a permanent court as part of the institutional structure.232 Consider here also Shapiro’s account, which adopts a strategic political science perspective and emphasises the need for the Member States to have an independent third party to enforce the bargain that they had struck in establishing the three European communities and transferring some of their powers to the latter: ‘the Member States chose a division of powers regime specified in a controlling text and constituted an organ of third party dispute resolution as integral to their basic act of collaboration’.233 Interestingly, the committee of jurists – known as the Groupe de rédaction – entrusted with concretising the system for judicial control and drafting the relevant provisions, revisited the issue of whether the Court of Justice should be established as (or transformed into) a constitutional court, in order to ensure the uniformity of Community law in the Member States.234 Considering that such a choice would not be politically feasible, they decided instead to establish a preliminary reference procedure, closely modelled after the Italian example, to achieve this goal.235 At the same time, the Groupe de rédaction is said to 229 1951 Treaty establishing the European Coal and Steel Community (ECSC Treaty), Art 31. See also A Boerger-De Smedt, ‘La Cour de Justice dans les négociations du Traité de Paris instituant la CECA’ (2008) 14 Journal of European Integration History 7. 230 1951 ECSC Treaty, Art 33. They could bring proceedings against decisions or recommendations concerning them which were individual in character or against general decisions or recommendations which they believed involved a misuse of powers affecting them. 231 A Boerger-De Smedt, ‘Negotiating the Foundation of European Law, 1950–57: The Legal History of the Treaties of Paris and Rome’ (2012) 21 Contemporary European History 339, 343–44. 232 1957 Treaty establishing the European Economic Community, Art 164; the 1957 Treaty establishing the European Atomic Energy Community, Art 136. 233 M Shapiro, ‘The European Court of Justice’ in P Craig and G de Búrca (eds), The Evolution of EU Law (Oxford, Oxford University Press, 1998) 340. 234 On this committee, see also the reflections of one of its members: P Pescatore, ‘Les travaux du “groupe juridique” dans la négociations des traités de Rome’ (1982) no 2 Revue d’histoire luxembourgeoise 34, and the interview with Pierre Pescatore entitled ‘composition et fonctionnement du “groupe de rédaction” (Luxembourg, 10 September 2003), www.cvce.lu. 235 This procedure enables and sometimes requires national judges to consult the Court of Justice on questions concerning the validity and interpretation of EU law and is today found in Art 267 TFEU. This was a noteworthy extension of the preliminary reference procedure as it was laid down in Art 41 of the 1951 ECSC Treaty, which only gave the Court the power to deliver preliminary rulings regarding the validity of acts adopted by the European institutions – not regarding their interpretation.

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have been able to ‘inject a small dose of constitutionalism into the treaty’s legislative and jurisdictional system through the strengthening of a number of the treaty’s important provisions, namely Articles 169–71, 173, 177 and 189 [setting out the methods of invoking the Court’s jurisdiction and the different legal instruments that the European institutions can adopt]’.236 To avoid institutional duplication, the Member States signed the Convention on certain Institutions common to the European Communities, according to which there would be one Court of Justice shared by the three European communities. A detailed discussion of the tasks performed by constitutional courts is provided in chapter three. Suffice it to say for now that the CJEU’s function of resolving competence conflicts is redolent of the activities performed by several constitutional courts, and this applies a fortiori to its task – also set out in the treaties from the very beginning – of verifying the validity of acts adopted by the European institutions. At the same time, it must not be forgotten that the Court of Justice was ultimately established as an international tribunal operating under an international treaty, even though its institutional environment differed in some respects from that of conventional international courts like the International Court of Justice.237 Over time, the European Court is said to have undergone an evolution ‘from inter national to constitutional justice’.238 A first important step in this direction was taken in the early landmark cases of Van Gend en Loos239 and Costa v ENEL,240 where the Court characterised the then Community as a ‘new legal order of international law’ and developed the cardinal European doctrines of direct effect and supremacy to govern the relationship between European law and national law. As pointed out in a leading handbook, ‘These principles have defined the very nature of the EU, constitutionalizing it and distinguishing it from other international Treaties’.241 Several years later, the Court carved out a role for itself in protecting the fundamental rights of individuals, giving it ‘the allure of a constitutional court’.242 It judicially fashioned a European corpus of unwritten fundamental rights and began to use those fundamental rights as benchmarks for the review of acts of the European institutions and later also those of the Member States that come within the scope of EU law.243 Next, the Court adopted the language of constitutionalism in its case law, asserting that the EEC Treaty (the precursor to the TFEU), ‘albeit concluded in the form of an international agreement’, was the Community’s ‘constitutional charter’.244 (Former) judges and Advocates General had further begun to espouse the view that the European Boerger-De Smedt, ‘Negotiating the Foundations of European Law’ (n 231) 351. Think, for instance, of the presence of the Commission, which has autonomous powers, or the Council’s ability to decide by qualified majority. 238 R Dehousse, The European Court of Justice: The Politics of Judicial Integration (London, Macmillan, 1998) 16. 239 Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 13. 240 Case 6/64 Flaminio Costa v ENEL [1964] ECR 585. 241 P Craig and G de Búrca, EU Law: Text, Cases, and Materials, 5th edn (Oxford, Oxford University Press, 2011) 65. 242 M Claes, The National Courts’ Mandate in the European Constitution, Modern Studies in European Law (Oxford, Hart Publishing, 2006) 417. 243 See in particular Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125. The Member States have endorsed this judicial approach, and since the entry into force of the Lisbon Treaty, the EU also has a written and legally binding Bill of Rights in the form of the Charter of Fundamental Rights of the European Union. The Court’s use of fundamental rights as grounds of review is discussed in more detail in ch 5, section XIII. 244 Case 294/83 Parti écologiste ‘Les Verts’ v European Parliament [1986] ECR 1339, para 23; Opinion 1/91 on the draft agreement relating to the creation of the European Economic Area [1991] ECR I-6079, para 21. 236 237

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Court acts like a constitutional court245 – a claim that was also endorsed in the scholarly literature.246 In a 1995 Report addressed to the Member States that had scheduled an Intergovernmental Conference to prepare for the Treaty of Amsterdam, the Court as a body stated that it performs, amongst other things, a constitutional role.247 Today, it has become commonplace to define the Court of Justice as a court that engages in constitutional adjudication, notwithstanding the fact that it continues to exercise other functions. Turning to the Council of Europe, this international organisation was created in 1949, in the aftermath of World War II.248 Its first major endeavour was the adoption of the European Convention on Human Rights (ECHR) the following year.249 The original signatories to the ECHR were motivated by a twofold purpose: on the one hand, they sought to express their commitment to the protection of human rights in response to the horrors of the immediate past; and on the other hand, they were concerned to oppose the incoming tide of Communism.250 While there was a common understanding as to the aims that the new human rights instrument was expected to serve, the founders were divided on the enforcement machinery to be set up under the Convention. They eventually agreed on the establishment of a European Court of Human Rights, to be located in Strasbourg, but decided that its jurisdiction would be optional and that a more administrative body – the Commission on Human Rights – would first examine applications.251 The contracting parties could bring their fellow signatories before the Commission and the Court for breaching the Convention252 and, in addition, individuals could submit complaints alleging an infringement of any of the Convention rights to the Strasbourg institutions, but only if their State had accepted this right of individual petition.253 It can be ventured that the reasons behind the birth of the European Court of Human Rights are to a considerable extent analogous to those that explain the introduction of a system of constitutional adjudication in Germany, Italy, Spain and the preponderance of post-Communist countries in central and eastern Europe. It was clear, however, that the founders conceived and designed the Strasbourg Court as an international tribunal: for instance, it was agreed that ‘the Court 245 See eg A Donner, ‘The Constitutional Powers of the Court of Justice of the European Communities’ (1974) 11 CML Rev 127; O Due, ‘A Constitutional Court for the European Communities’; F Jacobs, ‘Is the Court of Justice of the European Communities a Constitutional Court?’ in D Curtin and D O’Keeffe (eds), Constitutional Adjudication in European Community and National Law: Essays for the Hon Mr Justice TF O’Higgins (Dublin, Butterworths, 1992); B Vesterdorf, ‘A Constitutional Court for the EU?’ (2006) 4 International Journal of Constitutional Law 607. 246 See eg Dehousse, The European Court of Justice (n 238); Shapiro, ‘The European Court of Justice’ (n 233); for a more general overview of what is known as the constitutionalisation of the European legal order and the position of the Court in this regard with further literature references, see Claes, The National Courts’ Mandate in the European Constitution (n 242) 401 ff. 247 Report of the Court of Justice on certain aspects of the application of the Treaty on European Union (Luxembourg, 5 May 1995). 248 See http://hub.coe.int. 249 See generally on the ECHR, R White and C Overy, Jacobs, White, & Overy: The European Convention on Human Rights, 5th edn (Oxford, Oxford University Press, 2010). 250 E Bates, ‘The Birth of the European Convention on Human Rights – and the European Court of Human Rights’ in J Christoffersen and MR Madsen (eds), The European Court of Human Rights between Law and Politics (Oxford, Oxford University Press, 2011) 18. The historical origins of the Convention and the Court are explored in more detail in E Bates, The Evolution of the European Convention on Human Rights: From its Inception to the Creation of a Permanent Court of Human Rights (Oxford, Oxford University Press, 2010); AWB Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (Oxford, Oxford University Press, 2004). 251 ECHR in its original form, Arts 19, 25 and 48. 252 ibid, Art 24 (now Art 33). 253 ibid, then Art 25 (now Art 34).

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will not have the power to declare null and void or amend Acts emanating from the public bodies of the signatory States’.254 The Strasbourg Court opened its courtroom in 1959. In its first years, it was understandably concerned with finding its feet and securing its position as an external human rights check on the contracting parties to the ECHR. Since the mid-1970s, the Convention and the Court have however undergone a gradual transformation due to a combination of factors. While the ECHR was originally understood to reflect a rather minimal level of human rights protection – setting the floor below which no State should fall – the Strasbourg Court construed the ECHR in a progressive manner, holding that it is a ‘living instrument which must be interpreted in the light of present-day conditions’.255 Another important catalyst was the entry into force of Protocol 11 in 1998, which brought about an overhaul of the institutional set-up.256 The Commission of Human Rights was abolished, meaning that individual complainants could directly petition the Strasbourg Court and the latter’s jurisdiction was made compulsory for all States party to the Convention. Around that time, there was also an influx of new members to the Council of Europe and the ECHR as a result of an eastwards enlargement following the collapse of Communism.257 Today, the ECHR and the Strasbourg Court are increasingly examined through a constitutional prism. The Court itself resorted to the use of constitutional language in its 1995 ruling in Loizidou v Turkey, describing the Convention as ‘a constitutional instrument of European public order (ordre public)’.258 Former president Luzius Wildhaber has been a particularly prominent protagonist of the Court’s role in providing constitutional justice and has called it a ‘quasi-Constitutional Court sui generis’.259 His views are echoed by several scholars in the field, with a recent book asserting that ‘it is undeniable that, in the 21st century, the Convention and the Court perform functions that are comparable to those performed by national constitutions and national constitutional courts in Europe’.260 We have seen that the existence of the European Court of Justice and the European Court of Human Rights and the organisations of which they are a part have, at least to an extent, informed the decision of several countries to establish a system of constitutional adjudication. As such, it is interesting to see that it is normal (in the case of the former) or 254 Travaux préparatoires, reproduced in AH Robertson (ed), Collected Edition of the ‘Travaux Préparatoires’ of the European Convention on Human Rights, Volume IV: Third and Fourth Sessions of the Committee of Ministers, Conference of Senior Officials (30 March–17 June 1950) (The Hague, Martinus Nijhoff, 1978) 44. 255 Tyrer v United Kingdom Series A no 26 (1978) para 31. 256 Protocol No 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, restructuring the control machinery established thereby (Strasbourg, 11 May 1994). 257 On the impact of this expansion of membership for the functioning of the Court, see eg R Harmsen, ‘The European Convention on Human Rights after Enlargement’ (2001) 5 International Journal of Human Rights 18; Council of Europe, Yearbook of the European Convention on Human Rights Volume 38 A (The Hague, Martinus Nijhoff, 1997). 258 Loizidou v Turkey (Preliminary Objections) Series A no 310 (1995) para 75. 259 L Wildhaber, ‘A Constitutional Future for the European Court of Human Rights’ (2002) 23 Human Rights Law Journal 161; L Wildhaber, The ECtHR 1998–2006: History, Achievements, Reform (Strasbourg, NP Engel, 2006). 260 A Stone Sweet and H Keller, ‘Introduction: The Reception of the ECHR in National Legal Orders’ in A Stone Sweet and H Keller (eds), A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford, Oxford University Press, 2008) 15. See also S Greer, The ECHR: Achievements, Problems and Prospects (Cambridge, Cambridge University Press, 2006) 7 (the European Court of Human Rights ‘is already “the Constitutional Court for Europe”, in the sense that it is the final authoritative judicial tribunal in the only pan-European constitutional system there is’); A Stone Sweet, ‘Sur le constitutionnalisation de la Convention européeenne des droits de l’homme: cinquante ans après son installation, la Cour européeenne des droit de l’homme conçue comme une Cour constitutionnelle’ (2009) 80 Revue trimestrielle des droits de l’homme 923.

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‘fashionable’261 (in the case of the latter) to talk about these European Courts as themselves also playing a constitutional role and exercising some form of constitutional jurisdiction. It will be shown in later chapters that both Courts continue to influence the trajectory of constitutional review performed at the national level through their judgments – including as regards the benchmarks used to measure the constitutionality of statutes – and that their case law, in turn, is influenced by their relationship with national courts, including those endowed with a strong constitutional mandate in their domestic legal order.262

261 W Sadurski, ‘Partnering with Strasbourg: Constitutionalisation of the European Court of Human Rights, the Accession of Central and Eastern European States to the Council of Europe, and the Idea of Pilot Judgments’ (2009) 9 Human Rights Law Review 397, 399. 262 In particular ch 6 (dealing with the identification and interpretation of the parameters relied on by national courts when they engage in constitutional review) and ch 7, sections V and VI (explaining the different ways in which national courts with constitutional jurisdiction and the two European Courts interact).

Chapter 3 Purposes of Constitutional Adjudication and Access to Constitutional Courts I. INTRODUCTION

As shown in the previous chapter, courts are relied on as the ultimate guardian of the constitution in the great majority of the countries studied in this book, even if there are some variations in the reasons underlying this fact. More particularly, European countries have largely decided to entrust a special judicial institution – the constitutional court – with the duty of upholding and enforcing constitutional rules and principles. The aim of this chapter is to take a closer look at what such constitutional courts actually do and how, and by whom, their jurisdiction can be invoked. By carefully studying the functions entrusted to constitutional courts and examining the ways in which constitutional issues reach them, it becomes possible to evaluate the position of these courts within the wider constitutional order of a particular country and understand their relationship with other State organs. Section II opens the examination by setting out three basic choices for constitutional designers regarding the organisation of a system of judicial constitutional review. A detailed comparative analysis of the matters over which the selected European courts have jurisdiction and the corresponding rules on access is provided in section III. There, a distinction is drawn between four purposes of constitutional adjudication. First, constitutional courts are typically responsible for assessing the constitutionality of parliamentary statutes and as such place limits on the legislature’s exercise of powers. This is often considered to be the main or classic purpose of constitutional adjudication, although in reality this function does not always generate the most work for the court. A second task concerns the protection of the rights of individuals in specific cases by means of so-called constitutional complaint procedures. Thirdly, these judicial institutions may have responsibility for resolving institutional disputes between different organs or echelons of the State. The fourth function is that of ensuring the integrity of political office and related processes, including for instance deciding on the proscription of political parties. Finally, in section IV, the findings of this horizontal comparative analysis are aggregated and used to formulate some general points on the mandate of national constitutional courts; and these are subsequently used as a prism through which the functions and modes of access to the Court of Justice of the European Union are examined.

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II. THE INSTITUTIONAL DESIGN OF CONSTITUTIONAL ADJUDICATION

Constitutional designers face three basic choices when it comes to the institutional and procedural arrangement that governs the exercise of constitutional review powers by courts, and, particularly, verifying the validity of statutes in light of the constitution. The first concerns the identity and number of judicial institutions empowered to perform constitutional adjudicatory functions. The second choice has to do with the moment at which courts commence their activities. The third addresses the extent to which the constitutional issue before the court is linked to a specific controversy. Let us now explore the different options in more detail. First, countries may distribute powers of constitutional review widely to many or all courts, or concentrate the exercise of constitutional jurisdiction in a single court. The choice is therefore between decentralisation and centralisation.1 The former model entails that each and every court is given jurisdiction to determine constitutional issues, and can notably review legislation for its constitutionality. Allegations that a particular statute infringes the constitution are raised and resolved in the course of ongoing litigation, in other words, in the context of an ordinary lawsuit between two parties. The United States is the birthplace of the decentralised model of constitutional adjudication. Its origins can be found in the 1803 landmark ruling of the US Supreme Court in Marbury v Madison.2 In that case, Chief Justice Marshall asserted that it would be for the judicial branch of the government to ensure the supremacy of the US constitution over ordinary legislation: It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the Constitution: if both the law and the Constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution; or, conformably to the Constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is the very essence of judicial duty.

Arguably, the Supreme Court had no viable alternative to saying so: it would have been conceptually indefensible to claim that constitutional review of legislation is inherently within the purview of courts in general, and yet in the same breath hold that this aspect of the judicial function is within the exclusive preserve of the Supreme Court. Within the European Union, only three countries have similarly opted for such a system of diffuse control, namely Finland,3 Sweden4 and Denmark.5 Recall, however, that in contrast to the US system, Finnish courts may only disregard a law when deciding a specific case if applying the legislative provision would bring about an ‘evident conflict’ with the constitution and that they have to date been reticent to actively use their powers of constitutional review. 1 See L Favoreu, ‘La notion de Cour constitutionnelle’ in P Zen-Ruffinen and A Auder (eds), De la constitution: études en l’honneur de J-F Aubert (Basel, Helbing, 1996); L Favoreu, Les cours constitutionnelles, 2nd edn (Paris, PUF, 1992); M Cappelletti, The Judicial Process in Comparative Perspective (Oxford, Clarendon Press, 1989). 2 William Marbury v James Madison, 5 US 137 (1803). 3 Finnish constitution, Art 106. See ch 2, section III-C(i) for more detail. More generally on practice in the Nordic countries, see the special issue on ‘Nordic Reluctance towards Judicial Review under Siege’ (2009) 27 Nordic Journal of Human Rights 131; J Husa, ‘Guarding the Constitutionality of Laws in the Nordic Countries: A Comparative Perspective’ (2000) 48 American Journal of Comparative Law 345. 4 Swedish Instrument of Government, ch 11, Art 14. 5 This has been the position of Danish courts since at least the 1920s, but the competence is rarely exercised. The first quashing of an act of parliament took place only in 1999, in the Tsvind case, UfR 1999.841H.

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Leaving aside those nations that see no central role for the courts in upholding the constitution, the great majority of EU Member States adhere to the centralisation model. This entails that a special institution – the constitutional court – enjoys the power to authoritatively settle questions of constitutional interpretation and rule on the constitutional validity of acts adopted by other State organs, and this includes in particular the competence to review legislation for its constitutionality.6 Constitutional courts are located outside the ordinary court system and a number of constitutions emphasise this bifurcation of the judicial branch by having separate chapters listing the basic provisions applicable to the regular judiciary and the constitutional court respectively.7 The model of centralised constitutional adjudication is the intellectual progeny of the legal philosopher Hans Kelsen, who played an important role in conceiving and designing the Austrian constitutional court in the 1920s and served as one of its judges for several years.8 Separate constitutional courts are therefore also referred to as Kelsenian courts. Within the European Union, such courts have been established in Austria,9 Belgium,10 Bulgaria,11 the Czech Republic,12 France,13 Germany,14 Hungary,15 Italy,16 Latvia,17 Lithuania,18 Luxembourg,19 Malta,20 Poland,21 Romania,22 Slovakia,23 Slovenia24 and Spain.25 The distinction between integrated constitutional review in all courts of the land and a special jurisdiction court with a monopoly to establish the correct interpretation of the constitution and assess the constitutionality of legislation is not absolute, however. Hybrid models have also emerged. In Cyprus, constitutional issues are exclusively adjudicated by the supreme court, which also rules at final instance in ordinary litigation.26 Likewise, the institutional arrangement in Estonia cannot be easily categorised as either decentralised or 6 A small qualification is in order here. In some countries, the constitutional court’s monopoly to declare laws unconstitutional extends only to laws adopted after the constitution entered into force. In Germany, Italy and Spain, ordinary courts retain the competence to adjudicate the constitutionality of legislation pre-dating the constitution. 7 This is the case in Belgium, Bulgaria, France, Hungary, Italy, Lithuania, Romania, Slovenia and Spain. 8 Drawing on those experiences, Kelsen’s article ‘Judicial Review of Legislation: A Comparative Study of the Austrian and the American Constitution’ (1942) 4 Journal of Politics 183 offers a powerful account of the attractiveness of the centralised model. A modern defence of the advantages of having a constitutional court can be found in V Ferreres Comella, Constitutional Courts & Democratic Values: A European Perspective (New Haven, Yale University Press, 2009). 9 Verfassungsgerichtshof Österreich, Austrian constitution, Arts 137–48. 10 Grondwettelijk Hof van België or Cour constitutionnelle de Belgique, Belgian constitution, Art 142. 11 КОНСТИТУЦИОНЕН СЪД НА РЕПУБЛИКА БЪЛГАРИЯ, Bulgarian constitution, Arts 147–52. 12 Ústavní Soud cˇeské Republiky, Czech constitution, Arts 83–89. 13 Conseil constitutionnel, French constitution, Arts 56–63. 14 Bundesverfassungsgericht, German Basic Law, Arts 92–94 and 100. 15 Alkotmánybíróság, Hungarian Fundamental Law, Art 24. 16 Corte costituzionale, Italian constitution, Arts 134–37. 17 Latvijas Republikas Satversmes tiesa, Latvian constitution, Art 85. 18 Lietuvos Respublikos Konstitucinis Teismas, Lithuanian constitution, Arts 102–08. 19 Cour constitutionnelle, Luxembourg constitution, Art 95ter. 20 Constitutional Court, Maltese constitution, Art 95. 21 Trybunał Konstytucyjny, Polish constitution, Arts 188–97. 22 Curtea Constituţională a României, Romanian constitution, Arts 142–47. 23 Ústavný Súd Slovenskej Republiky, Slovenian constitution, Arts 160–67. 24 Ustavno Sodišcˇe Republike Slovenije, Slovak constitution, Arts 124–40. 25 Tribunal Constitucional, Spanish constitution, Arts 159–65. 26 Before 1964, Cyprus also had a separate constitutional court, staffed by Greek, Turkish and neutral judges (ie from a third country). The eruption of hostilities in the early 1960s caused the neutral judges to leave the court and, with replacements not forthcoming, the decision was taken to overhaul the system and merge the constitutional court with the high court, through the adoption of the Administration of Justice (Miscellaneous Provisions) Law no 33/64.

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centralised in nature. While every ordinary court can declare laws unconstitutional and disregard them in specific controversies,27 it must thereafter forward its judgment to the Estonian supreme court, which ultimately decides whether the impugned legislation indeed violates the constitution.28 Within the supreme court, this task is performed by a dedicated constitutional review chamber, which also acts in constitutional mode when it hears challenges against statutes referred directly by certain public institutions.29 A comparable set-up prevails in Portugal: the ordinary courts may refuse to apply legal norms on the grounds of their unconstitutionality,30 but their decisions must be appealed to the Portuguese constitutional court,31 which has the final say on the constitutional fate of the norm.32 In the Greek system, each and every court may refrain from applying unconstitutional legislation in the course of ongoing litigation,33 but there is a special highest court to settle conflicting pronouncements on the constitutional validity of a statute in the case law of the various supreme courts.34 Finally, in Ireland, only the two highest ordinary courts (the high court and the supreme court) are empowered to carry out constitutional review.35 Second, another core characteristic of the arrangements governing the exercise of constitutional review powers has to do with timing. The choice here is between a priori (or ex ante) and a posteriori (or ex post) scrutiny. We speak of a priori review when legislation is examined for its constitutionality before it enters into force and becomes part of the law of the land. There are various moments in time when this type of review can be performed: immediately preceding promulgation, at the close of or during the course of parliamentary debates, or while the legislative act is still in its drafting stage. It should be mentioned here that most of the actors considered in chapter one – Councils of State, heads of state and parliamentary committees – engage in a priori scrutiny of legislation in the light of the constitution. A posteriori review denotes that the law being checked for constitutional conformity has already entered into force. Countries that have opted for a decentralised system of constitutional adjudication usually only empower their courts to carry out such a posteriori review. Conversely, several nations that have established separate constitutional courts have given these institutions both a priori and a posteriori review powers, as we shall see below. 27 Estonian constitution, Arts 15 and 152(1). More generally on constitutional review in Estonia, see C Taube, Constitutionalism in Estonia, Latvia and Lithuania: A Study in Comparative Constitutional Law (Uppsala, Iustus Förlag, 2001) 79–111. 28 Estonian constitution, Arts 149(3) and 152(2) and Constitutional Review Court Procedure Act, § 9. If the supreme court finds that the law comports with the constitution, then the parties to the original litigation can appeal the judgment disapplying that law to obtain redress. 29 Constitutional Review Court Procedure Act, § 2. The other three chambers of the Estonian supreme court review judgments from the lower courts by way of cassation proceedings. 30 Portuguese constitution, Art 204. 31 Due to this fact, scholars have also classified the Portuguese system as belonging to the group of countries that practise centralised review: see eg Ferreres Comella, Constitutional Courts & Democratic Values (n 8) 4. The classification of Portugal as having a hybrid system follows C Grewe and H Ruiz Fabri, Droits constitutionnels europeéns (Paris, PUF, 1995) 66 ff. 32 Portuguese constitution, Art 280. The legal norms that can be reviewed in light of the constitution are those laid down in international agreements, acts of parliament and regulatory decrees. Appeals against regular court decisions that refuse to apply legal norms on constitutional grounds or, conversely, apply legal norms whose constitutionality has been questioned, may (and sometimes must) be filed by the parties to the case or the public prosecutor. The latter body must also appeal court rulings applying legal norms that the constitutional court has previously declared unconstitutional or illegal. 33 Greek constitution, Art 93(4). 34 Greek constitution, Art 100(1)(e). 35 Irish constitution, Art 34(3)(2).

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Finally, a distinction is usually drawn between concrete and abstract review when it comes to fashioning and typifying systems of constitutional adjudication.36 Review is said to be concrete when the incompatibility of a legislative provision with the constitution is raised by one of the parties to a lawsuit to prevent the application of this provision in that particular case. The constitutional issue presents itself to the judge within the context of a specific controversy, which can only be decided after the question of the law’s constitutionality has been resolved. Conversely, when performing abstract review, the court measures the text of a statute as is against the constitution, that is, without the need for and separate from any actual and individualised legal dispute. The issue is thus whether the legal rule, independent of its application to a given set of factual circumstances, passes constitutional muster. It should be clear that the distinction between abstract and concrete review is related to the other traits of the models of constitutional justice set out above. By its very nature, constitutional adjudication in decentralised systems is always concrete. However, in countries that have a constitutional court, review can be – and often is – both concrete and abstract.37 Furthermore, a priori review is of necessity abstract, as a law that has not yet entered into force cannot have triggered constitutional doubts in the context of an individual case. These three design options that shape the model of constitutional adjudication that exists in a particular country will be relied upon and contextualised in the section that follows, which addresses the various functions that can be attributed to constitutional courts.

III. FOUR PURPOSES THAT MAY BE SERVED BY CONSTITUTIONAL ADJUDICATION

European constitutional courts tend to have broad portfolios, notwithstanding differences in the breadth of the range of tasks that have been assigned to them by the constitution and other legal texts. One can approach the topic of the various aims of constitutional adjudication and, relatedly, the different functions performed by constitutional courts from either an empirical or a normative perspective. Adopting the former viewpoint, we would need to consider the procedures that have been established to allow public institutions and others to refer constitutional issues to the court for examination. We should also consider the frequency with which a certain gateway is used and, ideally, also appreciate the (in) significance of the judgments delivered at the close of the various procedures for the overall development and direction of the body of constitutional case law and the functioning of the constitutional system more generally. This approach makes it possible to discern the practical focus of the constitutional courts under study. Conversely, taking a normative stance, the central issue is not so much about finding out what the court does and which types of cases feature prominently in its docket; it is more about reflecting on what ought to be the essential purpose(s) of constitutional adjudication. These two perspectives have also been combined. Thus, Ferreres Comella emphasises that reviewing legislation for its constitutionality should be the most important task performed by constitutional courts 36 See also M Dorf, ‘Abstract and Concrete Review’ in V Amar and M Tushnet (eds), Global Perspectives on Constitutional Law (New York, Oxford University Press, 2008). 37 Within the EU, the only exceptions are Luxembourg, where the constitutional court is limited to carrying out concrete review (Luxembourg constitution, Art 95ter(2), confirmed in Arrêt 17/02 du 7 mars 2003, Mém A-41 du 2 avril 2003, 656), and Italy.

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and, looking at several European countries, argues that their courts can be located ‘along a spectrum of purity’ depending on the extent to which they are in actual fact preoccupied with this function.38 In view of the overall objective and nature of this book, this section will canvass what the selected constitutional courts actually do and how their jurisdiction can be invoked, and is hence less concerned with the normative question of to what end these institutions should expend their time and resources. The analysis is anchored by the four purposes of constitutional adjudication set forth in the introduction to this chapter. These are, first, evaluating whether laws comport with the constitution and thereby ensuring that the legislative branch does not overstep the constitutional limits of its powers (section A); secondly, protecting the rights of individuals in specific cases (section B); thirdly, resolving institutional disputes among State organs or different echelons of government (section C); and, finally, ensuring the integrity of political office and related processes (section D). This classification of constitutional functions is based, on the one hand, on the constitutional provisions and principles relied on by the constitutional court when it is exercising constitutional jurisdiction. For example, when it seeks to safeguard the rights of individuals, the court will only assess whether there has been a violation of (some of) the fundamental rights enshrined in the constitution, to the exclusion of provisions dealing with referendums or presidential elections – which are however central to the judges’ task when they are called upon to ensure the integrity of political processes. On the other hand, reliance is also placed on the reason why, and the context within which, the constitutional issue has been brought to the court’s attention in devising the categorisation of the different aspects of judicial activity listed above. It should be clear that, given the nature of these elements, the aims just listed cannot be considered as hermetically-sealed components of constitutional just ice or as mutually exclusive. To illustrate, when a constitutional court is called upon to decide whether the central bodies of a State have wrongfully usurped competences attributed to the lower echelons of government, and is therefore resolving an institutional dispute, its judgment may simultaneously and incidentally also place limits on the ambit and use of legislative powers by the central level. As such, constitutional courts’ judicial activities may pursue and contribute to the realisation of multiple aims at the same time, whereby one of these can be regarded as more central or dominant and the other(s) qualified as more ancillary or incidental. In terms of structure, each sub-section below features a discussion of the procedural gateways most closely associated with the particular function of constitutional adjudication under examination. Where appropriate, reference will also be made to other ways to invoke a court’s jurisdiction that can also, more indirectly, contribute to achieving that precise aim of constitutional review. During the course of the inquiry, the advantages and risks associated with the different functions and means of access will also be touched upon. Although this section does not set out to give a normative perspective on the functions performed by constitutional courts, it will become clear that the merits of particular choices regarding the procedural arrangement for constitutional justice largely depend on the aims that the designers expect and desire to be served by constitutional adjudication.

38 Ferreres Comella, Constitutional Courts & Democratic Values (n 8) 6–7. Comella fears that the more the constitutional court is charged with other tasks, the less time and energy it will have for this core task of constitutional review, and this may result in the advantages he associates with the centralised model not being fully realised.

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A. Ensuring that the Legislature Does Not Overstep Constitutional Boundaries The ability of constitutional courts to review legislation in light of the constitution is usually regarded as the ‘most typical’39 form of constitutional adjudication and has been referred to as their ‘paradigmatic power’.40 In countries that have diffused constitutional jurisdiction among all or most courts, there are no procedures specifically designed to protect the constitutional provisions and principles from incursions by the legislature. This is so because constitutional questions are raised and adjudicated during the course of ordin ary litigation, alongside non-constitutional issues. Conversely, in countries that have a constitutional court, as well as in several hybrid systems, we do find procedural avenues crafted with a view to ensuring that the legislature does not overstep the boundaries provided by the constitution. The most common gateways in this regard are abstract constitutionality challenges (section i), preliminary reference procedures (section ii), and requests for an abstract interpretation of the constitution (section iii). i. Abstract Constitutionality Challenges As its name indicates, the abstract constitutionality challenge is a procedure that allows petitioners to make the general claim that a law or legislative provision is repugnant to the constitution, without there being any need to link this assertion to a specific dispute between two parties. It is thus possible to attack statutes on their face and outside the individualised context of an actual case or complaint. Abstract constitutionality challenges are submitted directly to the constitutional court. Hence, the regular judiciary has no part to play within the framework of this procedure. In most countries, the initiation of such challenges is the preserve of certain public bodies or officials, and we will see that there are considerable differences between legal systems as regards the selection of State organs that have been granted direct access to the court to attack laws on constitutional grounds. In what follows, we will first look at the possibility provided for in several countries to bring a priori abstract constitutionality challenges against laws (and some other legal norms) before they are promulgated, and subsequently consider the more prevalent a posteriori version of this procedure. Of the constitutional systems examined in this book, Belgium is exceptional in that private individuals as well as public bodies/officials are able to go to the constitutional court and request a review of legal provisions in the abstract – and a similar regime was in place in Hungary until 1 January 2012. The approach adopted by these two legal systems in recognising the right of individuals to submit an abstract constitutionality challenge is examined in the final part of this section. a. A Priori Abstract Constitutionality Challenges Several countries have established procedures that enable public institutions to question the constitutional validity of a particular law or other legal rule before it is promulgated (a priori), although there are variations as regards the bodies that have standing to bring 39 A Harding, P Leyland and T Groppi, ‘Constitutional Courts: Forms, Functions and Practice in Comparative Perspective’ (2008) 3 Journal of Comparative Law 1, 6. 40 T Ginsburg and Z Elkins, ‘Ancillary Powers of Constitutional Courts’ (2008) 87 Texas Law Review 1431, 1431.

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such claims, the type of legal provisions that can be challenged and the point in time at which petitions should be filed with the constitutional court. The relevant procedural regimes in France, Hungary, Spain, the Czech Republic, Poland and Germany are discussed below. Other EU Member States that are not systematically analysed in this book, but that have also empowered their courts to review the constitutionality of statutes and other texts (in particular international treaties) before these become binding law are Estonia,41 Ireland,42 Portugal,43 Romania,44 Slovakia45 and Slovenia46. France From its establishment in 1958 until 2008, the Conseil constitutionnel could only hear challenges against laws before their promulgation. Duly enacted statutes were immune from constitutional attack, although the regular judiciary could review legislation for its compatibility with EU law and international law and, in appropriate cases, refrain from applying conflicting provisions of national law.47 We will see later that this situation has now changed, and that it is currently also possible for the Conseil constitutionnel to engage in a form of a posteriori review of laws, namely in response to preliminary questions concerning a statute’s constitutionality submitted by either of France’s supreme courts.48 However, given that for most of its existence the Conseil constitutionnel only had the authority to perform constitutionality control of legal texts before they were promulgated, 41 Estonian constitution, s 107. If the Estonian Parliament readopts a statute that the president has refused to sign and has returned for renewed deliberation, the president may transmit the statute to the constitutional review chamber of the supreme court for a declaration on its constitutionality. In addition, the chancellor of justice can request that the supreme court examine ratified international treaties that have not yet entered into force for their constitutionality: Constitutional Review Court Procedure Act, ss 2 and 6(4). The chancellor may also refer some other legal norms that have been adopted but have not yet entered into force to the supreme court for constitutional review: Constitutional Review Court Procedure Act, s 6(2), (3) and (5). 42 Irish constitution, Art 26(1). The president can refer bills adopted by Parliament to the supreme court for a decision on their constitutionality. Money bills, bills containing proposals for constitutional amendment and bills in relation to which the time for parliamentary deliberation has been abridged, are excluded. Referrals must be made within seven days of the bill having been presented to the president to be signed into law. The supreme court must decide within 60 days of receiving the petition. 43 Portuguese constitution, Art 278. The constitutional court is empowered to conduct a priori review of international treaties (at the request of the president), of decrees of the national Parliament or government (at the request of the president, if the decree is to be enacted as an organic law, the request may also be made by the prime minister or one-fifth of the members of the National Assembly), and regional decrees (on a petition by representatives of the republic). The court must deliver its decision within 25 days, and this period of time can be reduced further by the president for urgent reasons. 44 Romanian constitution, Art 146. The following rules are susceptible to an a priori constitutionality challenge: statutes that have been adopted but not yet promulgated (standing is given to the president, the president of either House of Parliament, the government, the high court of cassation and justice, the advocate of the people and at least 50 deputies or 25 senators); initiatives for constitutional review (ex officio competence of the constitutional court); international treaties (at the behest of the president of either House of Parliament, 50 deputies or 25 senators); and parliamentary standing orders (upon request by the president of either House of Parliament, a parliamentary group or 50 deputies or 25 senators). It should be noted that before 2003, the Romanian Parliament could overturn a finding of unconstitutionality of a law by a two-thirds majority in each House of Parliament. However, this competence was never used. 45 Slovak constitution, Art 125a. The president and the government can ask the constitutional court to perform a priori review of international treaties. 46 Slovenian constitution, Art 160. The constitutional court can examine the constitutionality of international treaties prior to ratification on the request of the president, the government or one-third of all MPs. 47 This is the so-called ‘contrôle de conventionnalité’ as opposed to ‘contrôle de constitutionnalité’, which is the exclusive preserve of the Conseil constitutionnel. The Conseil d’État accepted competence to review laws in the light of EU law and international law in its Decision of 20 October 1989, Nicolo, Rec 190; the Cour de cassation did so in its Decision of 24 May 1975, Administration des Douanes v Société Cafés Jacques Vabre, D, 1975, 497. 48 See the discussion of France in section III-A(i)(b) below.

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it is usually considered the archetype of a court competent to hear a priori constitutionality challenges. As such, it is fitting to commence our examination of this particular type of procedure, designed to keep the legislature within its constitutional boundaries, by looking at the French system. There are three ways to invoke the jurisdiction of the Conseil constitutionnel for the purpose of obtaining a decision on the constitutionality of legal texts prior to their promulgation. First, a priori scrutiny for constitutional conformity is mandatory for organic laws,49 bills submitted by private Members of Parliament to hold a referendum on selected issues, and the standing orders of both Houses of the French Parliament.50 The reason for prescribing a priori review of initiatives by MPs to hold a referendum appears to be linked to the Conseil constitutionnel’s self-proclaimed inability to pronounce on the constitutionality of statutes that have been endorsed by a direct popular vote before these are promulgated.51 As regards parliamentary standing orders, the explanation may be sought in the strict distribution of competences between the government and Parliament laid down in the 1958 constitution and in the desire to ensure that the latter does not stealthily seek to strengthen its powers and constitutional position at the former’s expense.52 Second, a priori constitutionality challenges may be brought against statutes after they have been adopted by Parliament, but before being promulgated by the president.53 It is clear that, given the type of acts that can thus be attacked, this is the most significant modality of preventive constitutionality control in France. The decision of the constitutional framers in 1958 to impose a temporal limitation on the period within which claims that a piece of legislation did not comport with the constitution could be filed with the Conseil constitutionnel was in line with the French republican tradition. This tradition espoused a strict separation of powers and, combined with the view that laws adopted by the democratically elected Parliament are the expression of the general will,54 it was considered improper to allow the judiciary to condemn duly enacted legislation as unconstitutional. By allowing the Conseil constitutionnel to intervene before legislation was promulgated, the traditional reverence of parliamentary statutes could be maintained.55 A priori constitutionality challenges could initially only be brought by the president of the republic, the prime minister and the presidents of the National Assembly and the Senate. This narrow approach to the rules on standing was in keeping with the scheme for the division of powers and responsibilities between the executive and Parliament incorporated in the 1958 constitution, and equipped each of the key actors with a tool to ensure that the 49 Organic laws (or institutional acts, as they are officially known in France) are prescribed for the regulation of a variety of issues, including the election of the French president, the organisation of the Conseil constitutionnel, and the adoption of social security and finance legislation. The procedure for adopting institutional acts is set out in Art 46 of the constitution and is more arduous than that prescribed for the adoption of ordinary statutes. 50 French constitution, Art 61(1). 51 See Décision no 62-20 DC of 6 November 1962, Referendum; Décision no 92-313 DC of 23 September 1992, Treaty of Maastricht III. 52 J Bell, French Constitutional Law (Oxford, Clarendon Press, 1994) 32. 53 French constitution, Art 61(2). 54 Expressed in Art 6 of the Declaration of Rights of Man and of the Citizen of 26 August 1789, following the philosophy of Jean-Jacques Rousseau, Du contrat social, ou principes du droit politique (Paris, Flammarion, 1762). 55 The Conseil constitutionnel accepted a small inroad into this paradigm in its Décision no 85-187 DC of 25 January, Loi relative à l’état d’urgence en Nouvelle-Calédonie et dépendances, where it held that promulgated laws could be challenged on the occasion of an examination of the legislative provisions that modify, complement or affect its scope, but stated that this is not possible when it is a matter of simply applying such a law (see para 10). Note that scrutiny by the Conseil constitutionnel could only result in the later legislative provisions being declared unconstitutional.

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others toed the constitutional line. In practice, however, the four public institutions that could submit claims attacking legislation on constitutional grounds tended to belong to the same political party and they accordingly had very little incentive to engage the Conseil constitutionnel. In fact, only eight statutes were referred for a priori constitutional review between 1959 and 1974.56 In that last year, a ‘véritable révolution constitutionnelle’57 took place in the form of a constitutional amendment that opened access to the Conseil constitutionnel to 60 deputies or 60 senators. The opposition in Parliament reacted with gusto to this newly acquired right to submit a priori constitutionality challenges58 and today, most controversial laws find their way to the Conseil constitutionnel following a referral by opposition MPs.59 When it is asked to pronounce on the constitutionality of statutes or other texts adopted by the French Parliament, the Conseil constitutionnel must deliver its decision within one month. In urgent cases, the government can ask that judgment be given within a mere eight days.60 It is unclear who has the final say on whether a matter is in fact urgent.61 Having said that, the government has to date been extremely reticent about requesting the Conseil to decide within a reduced period of time.62 Third, the Conseil constitutionnel is given jurisdiction to perform a priori review of international treaties in light of the constitution prior to their ratification.63 Any incompatibilities identified by the judges must be eliminated by means of a constitutional amendment before ratification will be possible.64 This procedure can be initiated by the president, the prime minister, the presidents of the National Assembly or the Senate, or 60 deputies or senators. At the time of writing, the president has brought most challenges – in particular in relation to new European treaties – and in the majority of its judgments, the Conseil 56 Décision no 60-8 DC of 11 August 1960 (referral by the prime minister), Décision no 60-11 DC of 20 January 1961 (referral by the prime minister), Décision no 63-21 DC of 12 March 1963 (referral by the prime minister), Décision no 64-27 DC of 18 December 1964 (referral by the prime minister), Décision no 68-35 DC of 30 January 1968 (referral by the prime minister), Décision no 70-41 DC of 30 December 1974 (referral by the prime minister), Décision no 71-44 DC of 16 July 1971 (referral by the president of the Senate), Décision no 73-51 DC of 27 December 1973 (referral by the president of the Senate). 57 D Rousseau, Droit du contentieux constitutionnel, 9th edn (Paris, Montchrestien, 2010) 37 [translation: ‘veritable constitutional revolution’]. 58 By 1979 – that is, within five years of the constitutional amendment being passed – 25 abstract constitutionality challenges had been filed by deputies or senators, in contrast to a single reference by one of the four institutions that had had standing before the Conseil constitutionnel since its establishment. 59 The nature of review by the Conseil constitutionnel has changed. In its famous Freedom of Association judgment of 1971 (Décision 71-44 DC, discussed in more detail in ch 6), the Conseil constitutionnel expanded the grounds for review by incorporating sources giving expression to fundamental rights. As mentioned in ch 3, the combined effect of this judgment and the 1974 amendment was that laws were increasingly challenged not for infringing the constitution’s rules on competence, but for fundamental rights violations. The Conseil constitutionnel was thus slowly being transformed from an ‘organe régulateur de l’activité des pouvoirs publics’ into the ‘protecteur des droits et libertés de la personne’: see J Gicquel, Droit constitutionnel et institutions politiques, 12th edn (Paris, Montchrestien, 1993) 773 [translation: ‘a regulatory organ of the public powers’ and ‘a guardian of rights and personal freedoms’]. 60 French constitution, Art 61(3). 61 L Favoreu and L Philip, Les grandes décisions du Conseil constitutionnel, 7th edn (Paris, Sirey, 1993) 474. 62 P Avril and J Gicquel, Droit parlementaire (Paris, Montchrestien, 1988) 105. The speed with which the Conseil constitutionnel can render its decisions is clearly illustrated by Décision no 85-187 DC of 25 January 1985, Loi relative à l’état d’urgence en Nouvelle-Calédonie et dépendances: the government had not used the urgency procedure, but the Conseil constitutionnel issued its decision on the constitutionality of the state of emergency declared in New Caledonia on the same day that it received the petition for review. 63 French constitution, Art 54. 64 The French constitution, Art 55 stipulates that, upon ratification, international treaties prevail over acts of parliament.

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constitutionnel found that a constitutional revision was required before France could proceed with ratification.65 Hungary As explained in chapter two, a major constitutional development took place on 1 January 2012 in Hungary, when a new foundational document for its constitutional order – bearing the official title of ‘Fundamental Law’ so as to distinguish it from its predecessor text, which is referred to as the ‘constitution’ – came into effect.66 This far-reaching reform has also affected the Hungarian constitutional court, which today has a narrower mandate and fewer possibilities to receive claims alleging the unconstitutionality of legal texts than was the case in the recent past. This also holds true for its competence to conduct a priori review. The Alkotmánybíróság has retained jurisdiction to adjudicate abstract challenges brought against adopted but not yet promulgated statutes.67 This procedure for preventive constitutionality control can be initiated by Parliament following a motion tabled to that end by its speaker or the government,68 or, if Parliament has declined to invoke the court’s jurisdiction, the president may refer the statute for examination before proceeding to sign it into law if she harbours doubts about its constitutionality.69 The Alkotmánybíróság must render its judgment within 30 days of receiving the petition.70 Statutes found to be constitutionally defective are returned to Parliament, which will hold new deliberations on the legal text and remedy the flaws that have been identified.71 Conversely, when the constitutional court declares that the statute passes muster, the president is obliged to sign it

65 This was the case in relation to the Lisbon Treaty (Décision no 2007-560 DC of 20 December 2007), in relation to the Treaty establishing a Constitution for Europe (Décision no 2004-505 DC of 19 November 2004), in relation to the statute of the international criminal court (Décision no 98-408 DC of 22 January 1999, joint challenge by the president and the prime minister), in relation to the Treaty of Amsterdam (Décision no 97-394 DC of 31 December 1997), and in relation to the Maastricht Treaty (Décision no 92-308 DC of 9 April 1992). No constitutional amendments were required in the case of a second challenge to the Maastricht Treaty by 60 senators (Décision no 92-312 DC of 2 September 1992), in the case of the 6th Protocol to the European Convention on Human Rights on the abolition of the death penalty (Décision no 85-188 DC of 22 May 1985), in the case of a Council Decision on direct elections to the European Parliament (Décision no 76-71 DC of 30 December 1976) and in the case of a challenge by the prime minister to the EEC taxation treaty (Décision no 70-39 DC of 19 June 1970). 66 ch 2, section III-B(vi). 67 Hungarian Fundamental Law, Art 24(2)(a); Act CLI of 2011 on the Constitutional Court, Art 23(1). 68 A majority of MPs present must vote in favour of the motion. 69 Act CLI of 2011 of the Constitutional Court, Art 23(1) read together with Hungarian Fundamental Law, Art 6(2) and (4). On the competence of the president in this regard see further the discussion in ch 1, section IV. Following the Fourth Amendment to the Hungarian Fundamental Law, the president may also refer adopted but not yet promulgated amendments to the Fundamental Law to the Alkotmánybíróság for review of their conformity with the relevant procedural rules pertaining to their adoption (Hungarian Fundamental Law, Art 9(3)(i) read together with Art 24(5)). The government, a quarter of MPs, the president of the highest judicial authority, the prosecutor general and the Commissioner for Fundamental Rights may similarly request an examination of the procedural propriety of constitutional revisions within 30 days of their official publication. The Alkotmánybíróság must deliver its decision within 30 days of receiving the petition. 70 Hungarian Fundamental Law, Art 6(6). 71 After revision, the law can again be submitted to the Hungarian constitutional court for review, which must deliver its judgment within 10 days: Hungarian Fundamental Law, Art 6(8). The Venice Commission has been critical of this provision, also as regards the expedited nature of such second referrals, stating: ‘If the doubts regarding the constitutionality of a law have not been entirely dispelled through a different wording, the Court should be given sufficient time for a new deliberation. If from the Parliament’s view [sic] the adoption of the act is urgent, the Parliament can decide to adopt it without the objected provisions and provide for a later amendment or amend the provision in a way that evidently takes into account all objections’: Venice Commission, Opinion 621/2011 on the New Constitution of Hungary (CDL-AD (2012)009), Venice, 17–18 June 2011), 21.

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without delay and order its publication.72 While the first Hungarian president made frequent use of the opportunity to request a priori review of statutes, later incumbents of that office have been less keen to avail themselves of the procedure.73 Secondly, the Alkotmánybíróság has kept its competence to review the constitutionality of international agreements before these become legally binding on Hungary. This type of a priori review can be triggered by the president or the government (in the event that the treaty is promulgated by a government decree).74 In a pre-2012 ruling, the constitutional court underlined that treaties of major significance for Hungary and its legal order should always be referred by the competent public institutions for preventive scrutiny and that the latter must do so in good time.75 To understand and appreciate the position of the Hungarian court within the constitutional order at present, it is useful to note those procedures that are no longer in place today but in the (recent) past could be used by public institutions and others to invoke the jurisdiction of the Alkotmánybíróság. As far as a priori review is concerned, and leaving aside the two procedures that have been preserved, before 1 January 2012 the constitutional court could also be asked by Parliament to examine its rules of procedure for their constitutionality.76 During the course of its existence, there was also a fourth way to invoke the jurisdiction of the Alkotmánybíróság for the purpose of preventive scrutiny. Although the relevant procedure was abolished well before the entry into force of the new Fundamental Law, discussing it at this juncture is nevertheless worthwhile as it provides useful insights into one of the potential pitfalls of a priori review. It is readily apparent that there are various points in time at which preventive constitutionality challenges can be initiated. We have just seen that in France, the Conseil constitutionnel can examine legislation after it has been adopted by Parliament, but before it is promulgated. In contrast, before 1998 the Hungarian constitutional court could receive abstract challenges to draft acts of parliament at any stage of the legislative process.77 Claims could be submitted by Parliament, one of its standing committees or 50 MPs. It is clear that by pushing forward the moment at which the constitutional court can be asked to pronounce on the constitutionality of a legal text, there is a serious risk that the judges will become embroiled in politically heated discussions on the merits of legislative proposals and are liable to receive several claims in relation to the same proposal, the definitive text of which has yet to be agreed upon. Perhaps unsurprisingly, this is indeed what happened when this avenue for preventive scrutiny was used for the first time. More than 50 MPs asked the Alkotmánybíróság to review the constitutionality of various provisions of a proposal for a statute that sought make financial reparation for expropriations carried out

Hungarian Fundamental Law, Art 6(7). L Sólyom and G Brunner, Constitutional Judiciary in a New Democracy: The Hungarian Constitutional Court (Ann Arbor, University of Michigan Press, 2000) 52. 74 Act CLI of 2011 of the Constitutional Court, Art 23(4). As compared to the pre-2012 legal regime, the standing rules have been tightened and Parliament is no longer able to request a priori review of the constitutionality of international treaties, a power that it did enjoy under Act XXXII of 1989 on the Constitutional Court, Art 36(1). 75 Decision 143/2010 (VII.14) AB of 12 July 2010, Treaty of Lisbon. This case reached the constitutional court by means of an a posteriori abstract constitutionality challenge brought by an individual against the act promulgating the Lisbon Treaty (something which today is no longer possible); the fact that the competent political actors had failed to bring the Lisbon Treaty itself before the constitutional court by means of an a priori challenge appears to have been an important contributory factor in rejecting the petition as unfounded. 76 Act XXXII of 1989 on the Constitutional Court, Art 34. 77 ibid, former Art 33. 72 73

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during Communist rule.78 The constitutional court rejected the petition and, in doing so, expounded a much narrower understanding of its ability to engage in a priori review than envisaged by the relevant legal rules. Its reasoning, carefully setting out the rationales behind the introduction of a priori review and its dangers for the legitimacy and position of a constitutional court, is instructive: If the constitutionality of a bill is disputed already during the legislative procedure, then a preventive norm control may prevent the annulment of an already promulgated and legal rule which has been put in practice and, moreover, the main criterion is that it protects the prestige of the legislature. . . . In the course of a preliminary review of constitutionality during the legislative process, the Constitutional Court might come into conflict with the separation of powers principle. . . . [T]he Constitutional Court becomes a participant in the legislative process, thereby limiting the power of Parliament to decide and share the responsibilities of the legislator. [The Constitutional Court Act] may permit the Constitutional Court to be involved in the legislative process at any stage and on any number of occasions. This way, the Constitutional Court, by its decision, influences, and, by ruling out certain solutions, even determines the course of the debate in such a way that at the same time it secures the constitutionality of the legislative process. The Constitutional Court is not an advisor to Parliament but the judge of the result of Parliament’s legislative work. The purpose of preventive norm control, i.e. preventing the enactment of an unconstitutional Act of Parliament, and the judicial function of the Constitutional Court may be reconciled in case of a review on the merits if the final text of the Bill is submitted to the Constitutional Court either prior to voting on the Bill or after voting but still before promulgation.79

The upshot was that the Alkotmánybíróság would only accept a priori constitutionality challenges directed against acts of parliament the text of which was no longer subject to modification. Since the provisions referred did not meet this criterion, the constitutional court declared the petitions inadmissible.80 At the same time, it acknowledged that the applicable procedural framework gave it very wide jurisdiction to conduct preventive constitutionality control and that any restrictions in that regard would require Parliament to amend the relevant legislation. This led to the somewhat paradoxical outcome that the first part of the judgment consisted of the Alkotmánybíróság explaining why the challenges would be rejected as inadmissible, followed by a second part in which the judges outlined their ‘theoretical stance’ on the constitutional issues at stake.81 According to a leading commentator, ‘The justices supposed that the public would consider such cursory treatment [declining to exercise this form of a priori jurisdiction] to be escaping the issue’.82 As a matter of fact, the issue of compensation for property losses suffered during the Communist Decision 16/1991 AB of 20 April 1991, Compensation Case II. A full translation of the judgment in English can be found on the constitutional court’s website. 80 Notwithstanding this restrictive interpretation of its competence to conduct a priori review, the feeling that the constitutional court was acting ultra vires – in the sense of engaging in lawmaking rather than adjudication – persisted among certain segments of the general public: see G Brunner, ‘Structure and Proceedings of the Hungarian Constitutional Judiciary’ in Sólyom and Brunner, Constitutional Judiciary in a New Democracy (n 73) 79. 81 The Alkotmánybíróság’s ruminations on the substantive constitutional issues were ultimately instrumental in structuring the debates in Parliament, and the Hungarian court also relied on the parameters set out in this first case in all further judgments in which it dealt with the question of property compensation. 82 P Paczolay, ‘Judicial Review of the Compensation Law in Hungary’ 13 (1992) Michigan Journal of International Law 806, 822. On this judgment, see also E Klingsberg, ‘Hungary: The Constitutional Politics of Compensation’ (1991) 2 Soviet and East European Law 1. 78 79

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regime is part of the more general problem of ‘dealing with the past’, which is regularly considered to pose a considerable challenge for newly democratic regimes and their freshly minted constitutional guardians. In Hungary, many of the statutes that sought to cope with the legacies of the past regime – including but not limited to compensation for expropriations – were attacked before the Alkotmánybíróság on constitutional grounds.83 In another judgment concerning a law that was submitted to the Hungarian court for preventive scrutiny, the judges reiterated the need to respect the principle of separation of powers. This time, however, the constitutional court held that the petition was admissible and adjudicated the claim on its merits ‘since the legislature had already finalised the text of the bill and had excluded the possibility of any further changes’.84 Parliament eventually recognised the shortcomings of this form of a priori review and adopted a statute in 1998 that sought to abrogate the related provisions of the procedural framework governing the court’s functioning. Ironically, even this piece of legislation was referred to the Alkotmánybíróság for preventive scrutiny, which however was eager to reject the objections put forward by the petitioners, in view of the many other avenues for public institutions to invoke its jurisdiction.85 Spain Article 95(2) of the Spanish constitution gives the Tribunal Constitucional jurisdiction to hear a priori constitutionality challenges brought against international agreements. Claims can be submitted by the government or either of the two Houses of Parliament and if the Tribunal Constitucional confirms the petitioner’s doubts about the treaty’s compatibility with the constitution, a constitutional revision is necessary before Spain can proceed with ratification.86 Judgment87 must be given within two months of the request for preventive control being submitted to the constitutional tribunal.88 At the time of writing, the procedure for a priori review has been initiated on two occasions. In the first case, the Tribunal Constitucional was asked to pronounce on the constitutionality of the Maastricht Treaty and found that ratification was permissible only after prior amendment of the constitution.89 The second claim related to the now defunct Treaty establishing a Constitution for Europe, which was given the constitutional green light.90

83 See generally E Klingsberg, ‘Judicial Review and Hungary’s Transition from Communism to Democracy: The Constitutional Court, the Continuity of Law, and the Redefinition of Property Rights’ 41 (1992) Brigham Young University Law Review 41. 84 Decision 22/1996 of 25 June 1996, Compensation for Past Injustices II. 85 Decision 66/1997 (I.22) of 29 December 1997. 86 Spanish constitution, Art 95(1); Organic Law 2/1979 on the Constitutional Tribunal, Arts 2(1)(e) and 78. 87 Officially, the Spanish constitutional tribunal delivers a legally binding ‘declaration’ (déclaracion) at the close of this procedure. 88 Organic Law 2/1979 on the Constitutional Tribunal, Art 78(2). 89 Déclaracion 1/1992 of 1 July 1992. The Tribunal Constitucional held that it was necessary to amend Art 13(2) of the constitution to give effect to the provisions of the Maastricht Treaty that conferred the right to vote and stand as a candidate in municipal elections upon EU citizens that did not have Spanish nationality. On this judgment, see A Estella de Noriega, ‘A Dissident Voice: The Spanish Constitutional Court Case Law on European Integration’ (1999) 5 European Public Law 269. 90 Déclaracion 1/2004 of 13 December 2004. On this ruling, see F de la Torre, ‘Tribunal Costitucional (Spanish Constitutional Court), Opinion 1/2004 of 13 December 2004, on the Treaty establishing a Constitution for Europe’ (2005) 42 CML Rev 1169; C Plaza, ‘The Constitution for Europe and the Spanish Constitutional Court’ (2006) 12 European Public Law 353; C Schutte, ‘Tribunal Costitucional on the European Constitution: Declaration of 13 December 2004’ (2005) 1 European Constitutional Law Review 281.

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Originally, the Spanish constitutional tribunal was also competent to verify the constitutionality of the final text of proposals for organic laws and statutes of the autonomous communities. Its jurisdiction in this regard could be invoked by the prime minister, 50 deputies or senators, the executive or legislative bodies of the autonomous communities and the defender of the people (a sort of ombudsman) within three days of the final text being agreed upon. This procedure – officially known as the recurso previo de inconstitucionalidad – was intended to allow the central government to restrict the room for negotiation of future statutes of the autonomous communities.91 In the years following its introduction, it became apparent that the recurso previo de inconstitucionalidad was susceptible to strategic use by the opposition in Parliament so as to obstruct the execution of the legislative agenda of the governing party.92 This was due to the fact that various legal reforms proposed by the majority required the adoption of organic laws, and could thus be placed before the Tribunal Constitucional for review and, crucially, because filing an abstract challenge suspended the entry into force of the impugned legal text until a ruling was delivered in the case, which typically took several months. In 1985, a mere five years after its establishment, this form of a priori review was accordingly abolished.93 Poland The Polish Trybunał Konstytucyjny considers its ability to engage in a priori review an exceptional form of constitutional adjudication.94 Two types of legal texts can be challenged under this procedure: statutes adopted by the Parliament and submitted to the president for signature,95 and international agreements placed before the president for ratification.96 Only the president is competent to file a priori abstract challenges, and if he withdraws its petition, the proceedings will be discontinued. When the Trybunał Konstytucyjny declares that the contested law is in its entirety tainted by unconstitutionality, it cannot be lawfully enacted.97 Conversely, if only part of the impugned statute is found to violate the constitution, the president can sign it into law minus the constitutionally objectionable provisions or choose to return the statute to Parliament in order to allow the latter to remedy the constitutional flaws. 91 P Magelhães, The Limits to Judicialization: Legislative Politics and Constitutional Review in the Iberian Democracies (dissertation, Ohio State University, 2003) 180. The decision to give the Tribunal Constitucional this competence was highly controversial in the debate on Organic Law 2/1979 on the Constitutional Tribunal, in part because this power was not envisaged by the constitution. See M Eibert, ‘The Spanish Constitutional Tribunal in Theory and Practice’ (1982) 18 Stanford Journal of International Law 435, 439, 446. 92 For more detail see J Perez Royo, ‘Crónica de un error: el recurso previo de inconstitucionalidad contra leyes orgánicas’ (1986) 17 Revista española de derecho constitucional 137. 93 As in Hungary, the last statute to be referred to the Spanish tribunal for a priori scrutiny after adoption but before promulgation contained the proposal to abolish this procedure, ie Organic Law 4/1985 of 7 June 1985. The Tribunal Constitucional had no difficulty declaring that the legislation was compatible with the constitution: sentencia 66/1985 of 23 May 1985. 94 See the section ‘About the Tribunal’ on the Trybunał Konstytucyjny’s website. Sadurski also notes that this reticence of the Polish constitutional tribunal as regards the exercise of a priori review powers manifests itself in the application of a stronger presumption of constitutionality than is used when hearing abstract constitutionality challenges directed at legal texts that have been promulgated: W Sadurski, Rights before Courts: A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe (Dordrecht, Springer, 2003) 75. 95 The president may alternatively decide to send the bill back to Parliament for a new debate and decision, with a statement of her reasons. If Parliament readopts the bill in its original form by a three-fifths majority (with a quorum of at least half the total number of MPs), the president must sign the bill into law. In that scenario, she no longer has the right to submit the bill to the constitutional tribunal for a priori review: Polish constitution, Art 122(5). 96 Polish constitution, Art 122(3); Constitutional Tribunal Act, Art 2(2). 97 Polish constitution, Art 122(4).

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Czech Republic Article 87(2) of the Czech constitution gives the Ústavní Soud jurisdiction to conduct a priori review of the constitutionality of international treaties, in particular those that seek to transfer competences to an international organisation.98 Pending the constitutional court’s decision, the State is explicitly prohibited from ratifying the treaty under review. Different public institutions have the right to contest the compatibility of international agreements with the constitution, and a distinction is made in this regard depending on when the challenge is brought. From the moment that a new treaty is presented to Parliament for ratification until the grant of parliamentary consent, either of the two Houses of Parliament can refer the treaty to the Ústavní Soud for review.99 After Parliament has expressed the will to be bound internationally, the treaty is presented to the president to be signed and ratified, and, during that intervening time, 41 deputies or 17 senators or the president herself can invoke the constitutional court’s jurisdiction for a determination of whether the treaty is in conformity with the constitution.100 Although the Czech procedural framework does not lay down a strict time limit within which claims brought under this procedure should be adjudicated, the constitutional court is required to accord priority to such challenges over other pending requests for review and to act ‘without undue delay’.101 The Treaty of Lisbon was the first ever international agreement to be attacked before the Ústavní Soud on constitutional grounds, with two separate claims filed against this treaty. Both petitions were dismissed, however, with the judges concluding that there were no conflicts between the Czech constitutional order and the Treaty of Lisbon that would stand in the way of ratification.102 In its second Lisbon judgment, the Ústavní Soud underlined that it would not condone abuse of this procedure and indicated that petitions for a priori review should be submitted in good time so that any appropriate doubts regarding the constitutionality of an international treaty could be removed ‘without undue delay’.103 Germany The German Basic Law does not expressly allow for a priori constitutional review of legal norms. In its case law, the Bundesverfassungsgericht has however accepted that it can adju98 Czech constitution, Art 10a. Article 49 lists the subjects that also give rise to a priori scrutiny: treaties affecting the rights or duties of persons; treaties of alliance, peace or other political nature; treaties by which the Czech Republic becomes a member of an international organisation; treaties of a general economic nature; and treaties concerning additional matters for which the state is responsible. 99 Act on the Constitutional Court, § 71a(1)(a). 100 ibid, § 71a(1)(b) and (d). Such a qualified proportion of MPs also have access to the Ústavní Soud in the event that permission to proceed with ratification has been obtained by means of a popular referendum: Act on the Constitutional Court, § 71a(1)(c). 101 ibid, § 71d(1). 102 Judgment Pl ÚS 19/08 of 26 November 2008, Treaty of Lisbon I; Judgment Pl ÚS 29/09 of 3 November 2009, Treaty of Lisbon II. In both decisions, the Ústavní Soud also took the opportunity to elaborate on how it conceives of the relationship between the Czech constitutional order and the European treaties. For discussion see eg J Zemánek, ‘The Two Lisbon Judgments of the Czech Constitutional Court’ in JM Beneyto and I Pernice (eds), Europe’s Constitutional Challenges in the Light of the Recent Case Law of National Constitutional Courts: Lisbon and Beyond (Baden-Baden, Nomos, 2011); I Slosarcik, ‘Czech Republic 2006–2008: On President, Judges and the Lisbon Treaty’ (2010) 16 European Public Law 1; P Briza, ‘The Czech Republic: The Constitutional Court on the Lisbon Treaty’ (2009) 5 European Constitutional Law Review 143. 103 Judgment Pl ÚS 29/09 of 3 November 2009, Treaty of Lisbon II, paras 115–24. In the case at hand, the Ústavní Soud found that the applicants had failed to respect this requirement to file their claim without undue delay, but decided not to declare their application inadmissible on that ground ‘this time, because it does not wish to retroactively burden the petitioners with an interpretation of procedural rules that regulate access to the Constitutional Court and the deadlines on which the Constitutional Court made a finding in this decision’.

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dicate claims asserting the unconstitutionality of laws by which Parliament has given its consent to an international treaty before these are signed and ratified by the president.104 The circle of potential litigants is wide. Public institutions have standing and this includes most prominently the Bundestag (the lower House) and the Bundesrat (the upper House).105 Furthermore, in its judgment on the Maastricht Treaty, the Bundesverfassungsgericht took the view that individuals are exceptionally authorised to file a constitutional complaint106 requesting prior review of statutes approving a treaty for ratification. In accepting that individuals too have a right of audience for this purpose, the German court based its reasoning on Article 38 of the Basic Law, which it interpreted as containing a fundamental democratic right to participate in the election of members of the Bundestag as the manifestation of popular sovereignty.107 The underlying logic is that the impugned statute may be alleged to take away responsibilities and competences that were originally entrusted to the Bundestag and thereby reduce the significance of the exercise of the fundamental right to vote. Notwithstanding academic criticism,108 the Bundesverfassungsgericht has confirmed this reading of Article 38 and its willingness to declare individual complaints alleging a breach of this constitutional provision admissible in its decision on the Lisbon Treaty.109 The German court’s decision to judicially empower itself to carry out a comprehensive review of parliamentary legislation approving international treaties appears to be motivated by the desire to be able to expound its views on the process of European integration and its own role in upholding the Basic Law in the face of the substantial transfer of competences to the European level110 – and, crucially, to do so at a time when its views can still carry significant weight. In fact, it is now common constitutional practice for the German federal president to postpone the signing of a treaty until after the Bundesverfassungsgericht has given the constitutional green light. Since the court has refrained from laying down a strict time limit within which it should decide on a priori constitutionality challenges, the upshot is that Germany’s ratification of international agreements – and by implication, occasionally therefore also the entry into force of such agreements for the other contracting parties – may be pushed back for a considerable period. Comparative Remarks While the constitutional courts surveyed above are all competent to hear constitutionality challenges to legal texts before they are promulgated, with a view to keeping the legislature within its constitutional bounds, their precise powers in this regard and the significance of 104 See also BVerfG 1, 396 (1952) in which the Bundesverfassungsgericht refused to accept jurisdiction to examine the constitutionality of a bill that had not yet been approved by Parliament. 105 BVerfG 108, 370 (2003) at 385. MPs are also entitled to lodge a constitutional complaint with the Bundesverfassungsgericht in their capacity as German citizens: see BVerfG 64, 301 (1983). 106 German Basic Law, Art 93(1)(4a). This procedure is discussed in more detail in section III-B below. 107 BVerfG 89, 155 (1993) Maastricht Urteil. 108 See eg C Tomuschat, ‘Die Europäische Union unter der Aufsicht des Bundesverfassungsgerichts’ [1993] Europäische Grundrechte-Zeitschrift 489; J Schwarze, ‘Europapolitik unter deutschen Verfassungsgerichts Vorbehalt’ (1994) 48 Neue Justiz 1; K Meessen, ‘Maastricht nach Karlsruhe’ [1994] Neue Juristische Wochenschrift 549. 109 BVerfG, 2 BvE 2/08 (2009) Lisbon Treaty. The applicants sought to challenge the constitutionality of three acts adopted by the German Bundestag, namely the Act on the Treaty of Lisbon, the Act Amending the Basic Law, which had been promulgated but had not yet entered into force, and the Act Extending and Strengthening the Rights of the Bundestag and the Bundesrat in European Union Matters, which had not yet been signed by the president. On the judgment, see eg the special issue of the German Law Journal (2009) 8. 110 The Bundesverfassungsgericht has authored a long line of case law outlining its stance vis-à-vis European treaties and European legislative measures; consider eg BVerfG 37, 271 (1974) Solange I; BVerfG 73, 339 (1986) Solange II.

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this procedure within their overall portfolio of responsibilities differ. At one end of the spectrum, for example, the Polish Trybunał Konstytucyjny is rarely asked to adjudicate preventive constitutionality challenges, while at the other end, the procedure for a priori review has been the principal gateway to the French Conseil constitutionnel for the purpose of challenging statutes and other texts on constitutional grounds. The scope for prior review in a particular legal system depends on the combination of the assortment of legal norms that can be contested before the constitutional court before their promulgation and the configuration of the list of public organs that are able to initiate a priori constitutionality challenges. In every country examined here, international agreements can be referred to the court for a preventive check in light of the constitution. This is readily understandable: it makes legal and political sense to detect, and remedy, any pos sible incompatibilities before treaties become binding on the country, all the more so if ratified treaties enjoy a status superior to acts of parliament following their ratification.111 In Spain, the Czech Republic and Germany, no other legal texts can be submitted for preventive scrutiny. In contrast, the procedure for a priori review established in France, Hungary and Poland can also be initiated to challenge parliamentary statutes before these are adopted, with France furthermore permitting preventive scrutiny of organic laws and Parliament’s rules of procedure. The various legal systems also give somewhat different answers to the question of who has standing to bring selected legal norms before the constitutional courts. At one end, the rules on access are most restrictive in Poland, as only the president is allowed to initiate the procedure for a priori review. The other countries all grant a right of audience to Parliament (or one of the Houses thereof) and the government (or the prime minister as its representative). With the exception of monarchical Spain, the president can in principle also always file a prior constitutionality challenge (in Hungary this is only the case if Parliament has not already referred the statute to the constitutional court for assessment). The right to bring such challenges is furthermore enjoyed by qualified parliamentary minorities in France and the Czech Republic. At the other end of the spectrum, Germany takes the most generous approach to the issue of standing, with individuals as well as public bodies being allowed to request an assessment of the constitutionality of statutes approving inter national treaties before these are promulgated. It is worth recalling that these liberal rules on access were not put in place by the constitution-maker or the legislature, rather it was the Bundesverfassungsgericht itself that recognised the competence to receive a priori challenges and carved out the procedural conditions under which it could be so petitioned. Lastly, the question of how wide or narrow standing is, is simply irrelevant when legal texts must be submitted for preventive constitutional review – and the involvement of the constitutional court is thus mandatory instead of being left to the discretion and incentives of a select number of public institutions. This is in particular the case in France, where the constitution prescribes that the standing orders of the Parliament, certain statutes before they are submitted to referendum and organic laws are subject to a priori review by the Conseil constitutionnel. When assessing the ramifications of a constitutional court’s power to engage in prior constitutional review for its position within the wider constitutional order, two additional 111 In those countries where the courts lack the power to review the constitutionality of international treaties before their ratification, it falls to Parliament to determine whether the new international agreements that the country wishes to enter into are compatible with the national constitution.

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factors should be borne in mind. The first concerns the scope of review. Briefly, if the judges limit themselves (or are constrained by the procedural framework) to verifying compliance with procedural technicalities – such as determining whether the prescribed procedure has been followed properly – their judgments are, generally speaking, less likely to be perceived as constitutionally significant (or problematic) than when the constitutional court assesses the substance of the impugned norm for its compatibility with the constitution. The second factor has to do with issues of timing. We have noted that there are various moments in time when a priori review can be performed, and the discussion of the Hungarian system in its pre-1998 guise is a helpful reminder of the importance of ensuring that statutes can only be referred to the constitutional court for scrutiny once their wording can no longer be modified. A separate but related aspect concerns the issue of whether the constitutional court is required to deliver its decision within a specific time limit, as is the case in France and Spain. For the political branches of government, a strict time schedule means that any constitutional shortcomings can be identified and remedied relatively quickly, so that the entry into force of the impugned norm does not suffer undue delay. From the court’s perspective, however, stringent time limits may mean that it can perform only a cursory examination of the legal norm under review and this in turn can be problematic if meaningful a posteriori review of the same norm is not available (for instance because the constitutional judges are hesitant to contradict their earlier ruling). Finally, it is good to remember that there are also several advantages associated with having preventive control of the constitutionality of legislation. It is helpful to think back to the judgment of the Hungarian Alkotmánybíróság on the statute regulating compensation for expropriations, in which it recognised that allowing a priori challenges can help safeguard legal certainty by preventing the entry into force of acts of parliament that would later have to be struck down as unconstitutional.112 Furthermore, prior scrutiny of statutes can protect the prestige of Parliament, which may accordingly be perceived as hardly ever (and if there is no room for any form of a posteriori review: never) adopting legislation that is at odds with the constitution. This particular line of reasoning also carries considerable weight in understanding France’s original decision to permit only the Conseil constitutionnel to review legal texts before they were promulgated, with commentators speaking of the ‘traditional French idolatry of statute law (la Loi)’ that should be preserved to the greatest extent possible.113 b. A Posteriori Abstract Constitutionality Challenges In most of the countries within the European Union that have created constitutional courts or have adopted a hybrid system of constitutional adjudication, a procedure has been established that enables public institutions to challenge the constitutionality of laws or other legal rules after they have been promulgated (a posteriori). To reiterate, and as with 112 One of the reasons adduced by Hans Kelsen to support a centralised system of judicial review of legislation in light of the constitution was that it would protect the principle of legal certainty more effectively than a decentralised model of constitutional adjudication. For a discussion of the persuasiveness of this line of reasoning to support the establishment of a separate constitutional court, see Comella, Constitutional Courts & Democratic Values (n 8) ch 3. 113 M-C Ponthoreau and J Ziller, ‘The Experience of the French Conseil Constitutionnel: Political and Social Context and Current Legal-Theoretical Debates’ in W Sadurski (ed), Constitutional Justice, East and West: Democratic Legitimacy and Constitutional Courts in Post-Communist Europe in a Comparative Perspective (The Hague, Kluwer Law International, 2002) 141.

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the a priori version of this procedure, a posteriori constitutionality challenges entail that the court is asked to review the compatibility of particular legal provisions with the constitution in the abstract, that is to say, without there being a need for or connection to a specific case or controversy. Of the jurisdictions systematically examined in this book, the ability to bring a posteriori constitutionality challenges is recognised in Belgium, the Czech Republic, Germany, Hungary, Poland, Spain and Italy, and we will see below what choices they have made when it comes to the design of this procedure. Other EU Member States that allow public institutions to go to court and request abstract review of the constitutionality of statutes (or sometimes also another type of legal text) after they have been promulgated are Austria,114 Bulgaria,115 Estonia,116 Latvia,117 Lithuania,118 Portugal,119 Romania,120 Slovakia121 and Slovenia.122 114 Austrian constitution, Arts 140 and 140a; Constitutional Court Act, § 62. Applicants can assert the unconstitutionality of federal laws, state laws and international treaties. The procedure can be activated by the federal government, a state government or one-third of MPs of the federal Parliament or a state Parliament. 115 Bulgarian constitution, Arts 149(1)(2) and 150(1). Through this procedure, one-fifth of Members of Parliament, the president, the Council of Ministers, the prosecutor general, the supreme court of cassation and the supreme administrative court can challenge the constitutionality of laws and acts adopted by the president. 116 Constitutional Review Court Procedure Act, § 2(1). Only the legal chancellor has the right to initiate this procedure. When the chancellor has reservations about the constitutionality of a legal norm of general application adopted by Parliament, the executive or a local government, she can first ask the responsible public institution to amend the act so as to remove any constitutional defects. When this does not yield the desired result, the chancellor can refer the legal norm to the constitutional review chamber of the Estonian supreme court for abstract review and annulment (Estonian constitution, Art 142; Constitutional Review Court Procedure Act, § 6(1)(1)). 117 Latvian constitution, Art 85; Constitutional Court Law, Art 17. Acts of parliament, international agreements and other regulatory enactments can be referred to the constitutional court for abstract review. For this purpose, standing is given to the president, Parliament, 20 MPs, the cabinet, the prosecutor general, the council of the state audit office, local government councils, the ombudsman (in the event that a prior request for constitutional rectification addressed to the author of the offending act has not resulted in the removal of the constitutional deficiencies), and land registry office judges (in cases concerning the entry of immovable property onto the register). 118 Lithuanian constitution, Arts 102 and 105. Abstract a posteriori constitutionality challenges can be brought against laws and other acts adopted by Parliament and against acts adopted by the president and the government. The rules on standing differ somewhat depending on the type of legal norm under attack and are set out in Law on the Constitutional Court of the Republic of Lithuania, Art 65. Laws and other measures adopted by Parliament can be referred to the constitutional court for review by the government or by one-fifth of all MPs. The constitutionality of presidential acts can be contested by one-fifth of all MPs. Finally, the president and one-fifth of all MPs can ask the court to check the constitutionality of acts adopted by the government. 119 Portuguese constitution, Art 281. The constitutional court can hear abstract challenges against any legal norm, submitted by the president of the republic, the president of the National Assembly, the prime minister, the ombudsman, the attorney-general or one-tenth of Members of Parliament. 120 Romanian constitution, Art 146. Only the Advocate of the People, charged with defending individual rights and freedoms, has direct access to the constitutional court to request review of laws and ordinances that have been promulgated in the light of the constitution. In addition, the court can check the constitutionality of international treaties (upon referral by the president of either House of Parliament, 50 deputies or 25 senators) and the standing orders of Parliament (upon referral by the same set of petitioners as well as by parliamentary groups). 121 Slovak constitution, Art 125. A large selection of legal norms can be challenged in the abstract before the constitutional court: ordinary statutes; constitutional laws; international treaties; government regulations; and binding legal regulations issued by ministries, other central state bodies or local bodies of state administration. A posteriori constitutionality challenges can be brought by one-fifth of Members of Parliament, the president, the government and the attorney-general: Act on the Organisation of the Constitutional Court of the Slovak Republic, on the Proceedings before the Constitutional Court and the status of its Judges, § 18(1). 122 Slovenian constitution, Art 160. A posteriori constitutionality challenges can be filed against laws, regulations and other general acts adopted in the exercise of public authority. The procedure can be initiated by the National Assembly; one-third of all Members of Parliament; the national council; the government; the ombudsman (but only on human rights grounds); the information commissioner; the bank of Slovenia or the court of audit; the state attorney-general (these latter four petitioners can only do so in relation to proceedings pending before them); and trade unions (which can only claim that the impugned legal norm threatens workers’ rights): Constitutional Court Act, Art 23a.

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Belgium In Belgium, a posteriori constitutionality challenges may be brought by the Council of Ministers or by the government of a community or region as well as by the presidents of the central, community or regional legislative assembly, at the request of two-thirds of their members.123 We will see later that Belgium also allows individuals with a justifiable interest to file such challenges with the Cour constitutionnelle.124 This procedure can be used to contest the constitutional validity of statutes adopted by the central, community or regional legislature125 and acts approving international treaties.126 Challenges must in principle be filed within six months of the publication of the objectionable statute or act in the Moniteur belge (the official journal).127 This strict time limit starts to run anew in three situations.128 The first is when the Cour constitutionnelle is already in the process of scrutinising the constitutionality of a statute on the same issue, but adopted by a legislature belonging to a different echelon. Secondly, when a statute has been annulled, there is a new six-month window within which constitutionality challenges can be brought against other statutes that deal with the same topic as the quashed legislation, but that have been enacted by a different legislature. The third situation is linked to the legal effects of the rulings handed down by the Belgian constitutional court. When the Cour constitutionnelle holds, in response to a preliminary question raised by an ordinary court, that a legal norm is unconstitutional, this finding does not have erga omnes effects or bring about the removal of the offending statute from the legal order.129 It does, however, start a new six-month time limit within which the eligible public institutions and persons with a justifiable interest can initiate an abstract constitutionality challenge against this same statute, which allows the Cour constitutionnelle to strike it down with general effect.130 In a further deviation from the normal time schedule, requests for abstract review of acts approving international treaties Belgian constitution, Art 142; Special Act on the Constitutional Court, Art 2. See section III-A(i)(c) below. 125 More precisely, legal norms adopted by the central legislature are called ‘statutes’ and the acts adopted by the Parliaments of the different communities and regions are known as decrees (with the exception of those adopted by the Brussels region, which are referred to as ‘ordonnances’). The Cour constitutionnelle has accepted that it can review the constitutionality of ordinary statutes as well as of special laws (which require a special majority in Parliament): judgment no 8/90 of 7 February 1990, B.2.2–B.2.4. In so doing, the Cour constitutionnelle argued that the constitutional provision describing its functions does not distinguish between these different types of statute and, given that these special laws can subsequently be used as yardsticks to determine whether other legal norms comply with the constitutional framework, it would be proper for the Cour constitutionnelle to first assess the constitutional merits of these special laws. For more detail on the legal norms susceptible to a posteriori constitutionality challenges, see A Alen and K Muylle, Handboek van het Belgisch Staatsrecht (Mechelen, Wolters Kluwer, 2011) 487 ff. 126 According to two (then) presidents of the court, Louis de Grève and Michel Melchior, the drafters of the Special Act on the Constitutional Court in all likelihood wanted to give the court jurisdiction to receive a priori constitutionality challenges against international treaties, even though the text as it then stood (and still stands today) makes no mention of this possibility: see L de Grève and M Melchior, Constitutionele bescherming en internationale bescherming van de mensenrechten: concurrentie of complementariteit, National Report for the IXth Congress of the Conference of European Constitutional Courts (1993). 127 Special Act on the Constitutional Court, Art 3(1). It is irrelevant whether the legal norm also enters into force or becomes formally binding upon publication: see judgment no 27/86 of 22 October 1986 at 3.B.1. 128 Special Act on the Constitutional Court, Art 4. 129 The effects of rulings of the Belgian constitutional court and its counterparts in other jurisdictions are examined in ch 6, section V. 130 Originally, only the public institutions mentioned earlier in the main text were able to lodge a claim for a posteriori review in these three special situations. In 2003, the rules on standing were amended and persons who are personally affected by the pertinent law can today also file a constitutionality challenge when the third situation presents itself. 123 124

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for ratification must be submitted within 60 days of their publication.131 The rationale behind this abridged time limit is to ‘guarantee the certainty and stability of international relations’.132 Czech Republic The Czech constitutional court is given jurisdiction to hear abstract constitutionality challenges by Article 87(1) of the Czech constitution. Through this procedure, the Ústavní Soud can subject various legal norms to scrutiny. These include, first and foremost, parliamentary statutes, which may be referred for abstract review by the president, 41 deputies or 17 senators or the government. Further, when adjudicating constitutional complaints filed by individuals against alleged violations of their fundamental rights committed by the administration or the ordinary judiciary,133 the panel of the constitutional court examining the complaint or the complainant herself can request that the underlying statute be reviewed for its constitutionality.134 The government’s standing before the Ústavní Soud is limited in the following way: it can only ask for a statute to be invalidated if that statute has led an international tribunal to rule that the Czech Republic has breached its obligations under international law, and if there is no other way to secure the amendment or repeal of the objectionable legislation.135 It would appear that the main rationale behind this is to enable the government to comply with rulings of the European Court of Human Rights finding that a particular Czech statute offends the Convention.136 Second, in its Decision 27/09137 the Ústavní Soud made it clear that it also has the power to review constitutional acts for their compatibility with the ‘essential requirements for a democratic state governed by the rule of law’.138 Constitutional acts supplement or amend the constitution, enjoy a higher rank in the domestic legal hierarchy than ordinary statutes and require a special majority in Parliament for their adoption.139 The Ústavní Soud justified this expansionist reading of its mandate by appealing to its task as supreme guardian of

131 Special Act on the Constitutional Court, Art 3(2). Originally, the constitutionality of these acts could also be questioned during proceedings before the regular courts, which would then submit the issue to the Cour constitutionnelle for determination by means of the preliminary reference procedure: judgment no 26/91 of 16 October 1991 at B.2 and B.3. However, in response to the constitutional court’s decision on the Maastricht Treaty, delivered in response to a preliminary question (judgment no 76/94 of 18 October 1994, Treaty of Maastricht, discussed below in more detail), a posteriori review of acts assenting to European treaties and the ECHR and its protocols is now explicitly precluded: Special Act on the Constitutional Court, Art 26(1bis). 132 Gedr St Senaat, 1981–82, no 246/1, p 6; no 246/2, pp 40, 52 and 105. 133 The constitutional complaint procedure is discussed in section III-B below. 134 Act on the Constitutional Court, § 64(1). Note further § 119, which addresses the situation where the constitutional court delivers a ruling on a criminal matter – typically in the context of adjudicating a constitutional complaint – and an international tribunal subsequently finds that there has been a violation of an internationally protected human right or freedom. When this transpires, the applicant in the original proceedings before the Ústavní Soud can ask that the case be reheard and request the annulment of the statute or other legal norm that was relied on during those original proceedings. As an example, consider Judgment Pl ÚS 1/09 of 27 July 2009, Rehearing following an ECHR Judgment. 135 Act on the Constitutional Court, §§ 117 and 118. 136 The relevant legal provision refers to encroachments by public authorities, especially those that result in an encroachment upon the fundamental rights or freedoms of a natural or legal person. 137 Judgment Pl ÚS 27/09 of 10 September 2009, Constitutional Act on Shortening the Term of Office of the Chamber of Deputies. See further ch 5, section III. 138 This phrase appears in the Czech constitution, Art 9(2). 139 Czech constitution, Arts 9(1) and 39(4).

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the Czech constitutional order140 and the need to ensure that Parliament shows due respect for the material core of the constitution: Insofar as the Constitutional Court articulates the need to include the category of constitutional acts within the term “statute” in Art. 87 par. 1 let. a) of the Constitution, . . . it does so in con nection to its case law . . . and does so in accordance with the values and principles that guide constitutional systems in democratic countries. Protection of the material core of the Constitution, i.e. the imperative that the essential requirements for a democratic state governed by the rule of law, under Art. 9 par. 2 of the Constitution, are non-changeable, is not a mere slogan or proclamation, but a constitutional provision with normative consequences. In No. 78 of The Federalist Papers, Alexander Hamilton wrote that “the courts were designed to be an intermediary body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” Without the projection of Art. 9 par. 2 of the Constitution into interpretation of Art. 87 par. 1 let. a) of the Constitution, the non-changeability of the essential requirements for a democratic state governed by the rule of law would lose its normative nature and remain merely a political, or moral challenge.141

It is further possible to bring a posteriori constitutionality challenges against legal norms below the rank of act of parliament. The rules on access distinguish between two groups of challengers. Those belonging to the first group can attack all sub-statutory texts before the Ústavní Soud. This covers the government, 25 deputies or 10 senators, the public protector of rights (the ombudsman), the representative body of a region or a panel of the constitutional court, or the complainant in the course of adjudicating a constitutional complaint.142 The public institutions that are part of the second group are only allowed to challenge the constitutionality of particular sub-statutory rules. Thus, the interior minister can ask for review of municipal and regional ordinances and ordinances adopted by the city of Prague; ministries or other central administrative offices are permitted to challenge orders enacted by one of the regions or the city of Prague; directors of regional offices can refer municipal orders for abstract review and representative bodies of municipalities may in turn claim that regional enactments are unconstitutional; and finally, heads of county offices can file constitutionality challenges against municipal enactments.143 The Ústavní Soud can scrutinise the compatibility of sub-statutory norms with the Czech constitutional order and with statutes. As such, it may be said to perform an ordinary judicial task, which is why Article 87 of the constitution allows for the transfer of this particular function to the supreme administrative court, something that had not so far happened at the time of writing. A general precondition for the admissibility of a posteriori constitutionality challenges is that the contested legal act has been officially promulgated and has not lost its binding force.144 Unlike Belgium, the Czech procedural framework does not stipulate a deadline by which legal acts must be brought to the Ústavní Soud for abstract review.

140 Czech constitution, Art 112 states that the ‘constitutional order’ comprises the constitution itself, the Charter of Fundamental Rights and Freedoms, and constitutional acts. In its case law, the constitutional court has also accepted that it can use international treaties that have been ratified and promulgated as yardsticks for review. A more detailed examination of the reference standards relied on by the Czech court and its counterparts in other countries can be found in ch 5. 141 Judgment Pl ÚS 27/09 (n 137) under IV. 142 Act on the Constitutional Court, § 64(2)(a)–(f). 143 ibid, § 64(2)(g)–(j) and (3). 144 ibid, § 66. If the impugned norm loses its legal force before the constitutional court delivers its ruling, the proceedings will be discontinued (§ 67).

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Germany We saw earlier how the Bundesverfassungsgericht in its case law has accepted the power to engage in a priori abstract review of laws by which Parliament has consented to an inter national treaty, in the absence of an express authorisation to do so. When it comes to its ability to adjudicate constitutionality challenges brought against promulgated legislative provisions, there has been no need for judicial self-empowerment. Article 93(1)(2) of the Basic Law explicitly gives the Bundesverfassungsgericht jurisdiction to ‘rule in the event of disagreements or doubts respecting the formal or substantive compatibility of federal law or Land law with this Basic Law, or the compatibility with other federal law’.145 This procedure, known as the Abstrakte Normenkontrolleverfahren, can be activated by the federal government, one of the Länder governments or a third of the members of the lower House. There is no deadline by which laws can be referred to the Bundesverfassungsgericht for abstract review. The ‘disagreements or doubts’ mentioned in Article 93(1)(2) encompass two scenarios.146 The first is the most prevalent and denotes that the public institution that has invoked the court’s jurisdiction has reservations about the constitutionality of a piece of legislation and would like to see its removal from the legal order. The Abstrakte Normenkontrolleverfahren can also be used when the challenger is of the opinion that the law is constitutionally sound, but another State organ147 has refrained from applying the law because it deemed this law to be in violation of the German Basic Law. The Bundesverfassungsgericht has ruled that it retains the competence to decide on the constitutional fate of a law, even if the petitioner has withdrawn its application148 or if the contested statute is no longer in force.149 Compared to the other gateways that give access to the Bundesverfassungsgericht, a posteriori constitutionality challenges are very few in number. Between 2002 and 2011, this procedure was initiated an average of 2.7 times against a median caseload of 5,837 new claims submitted to the court per year.150 In other words, approximately 0.05 per cent of its docket consisted of requests for Abstrakte Normenkontrolle. That said, statistics do not tell us the full story. The procedure for a posteriori review is considered to have important anti cipatory effects on the behaviour of the German Parliament, as chronicled by a former president of the Bundesverfassungsgericht, who also expresses her unease about this phenomenon: already during the legislative procedure participants in the debate orient themselves on future and likely forthcoming decisions of the Federal Constitutional Court. . . . This tendency towards anticipatory obedience has become stronger over the years. . . . In the upper and lower House and among the public, political argument is daily spiced up by using the accusation of the alleged unconstitutionality of a planned decision. The threat of taking the road to Karlsruhe is now part of the ritual stock-in-trade of politics in Germany. This anticipation of a constitutional risk leads The Bundesverfassungsgericht’s first Senate has jurisdiction to hear abstract constitutionality challenges. Law on the Bundesverfassungsgericht, Art 76. 147 This can be an organ belonging to the executive, the legislature or the judiciary, located at either the federal level or at the level of the Länder. 148 BVerfG 1, 396 (1952) at 414. 149 BVerfG 79, 311 (1989) at 32 f. 150 Data taken from the section ‘Aufgaben, Verfahren und Organisation’ on the Bundesverfassungsgericht’s website. From its establishment until 2001, 145 requests for a posteriori abstract review were filed with the German court, as compared to 3,174 preliminary references raised by ordinary courts and 131,445 constitutional complaints. 145 146

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to risk-aversion and lack of innovation. Anticipatory obedience is harmful to the social imagination and tends to cripple the legislator’s delight in deciding.151

Lastly, it should be pointed out that those laws that have been referred for abstract review have resulted in some of the most high profile rulings delivered by the Bundesverfassungsgericht, such as its first judgment on the regulation of abortion.152 Hungary From its establishment, the Hungarian constitutional court has been competent to receive and adjudicate constitutionality challenges filed against legal provisions after they had been promulgated. Since the entry into force of Hungary’s new constitutional framework on 1 January 2012, however, the Alkotmánybíróság’s abstract review powers have been curbed as compared to the status quo ante, as a result inter alia of changes to the rules on standing. The court today has jurisdiction to verify in the abstract whether parliamentary legislation and other normative acts below the rank of statute comport with the Fundamental Law.153 This latter category154 includes decrees adopted by local governments and so-called ‘law uniformity resolutions’ that can be adopted by the Hungarian Curia (the country’s highest judicial authority) with a view to prescribing how particular legislative provisions should be interpreted by the regular judiciary.155 The procedure for a posteriori constitutional review can be activated by the government, a quarter of all Members of Parliament, the president of the Curia, the prosecutor general or the Commissioner for Fundamental Rights (a sort of ombudsman for fundamental rights),156 and as far as the compatibility of 151 J Limbach, ‘The Effects of the Jurisdiction of the German Federal Constitutional Court’ (1999) EUI Working Paper LAW 99/5, 21, www.cadmus.eui.eu. See also C Landfried, Bundesverfassungsgericht als Gesetzgeber: Wirkungen der Verfassungsrechtsprechnung auf parlamentarische Willensbildung und soziale Realität, 2nd edn (Baden-Baden, Nomos, 1996). 152 BVerfG 39, 1 (1975) Abortion I. This judgment and its progeny are examined in more detail in ch 7, section II-A(i). 153 Hungarian Fundamental Law, Art 24(2)(e) and (f); Act CLI of 2011 on the Constitutional Court, Arts 24 and 37. The third paragraph contains an exception to this general ability to bring constitutionality challenges: if a statute has been examined on its merits and cleared by the constitutional court, it is not permitted to bring a second challenge against this same statute alleging a violation of the same provisions or principles that have already been considered during the first review, unless there has been a fundamental change of circumstances. Following the Fourth Amendment to the Hungarian Fundamental Law, the Alkotmánybíróság is also competent to verify whether constitutional revisions have been enacted in accordance with the relevant procedural rules within 30 days of their official publication at the request of the government, a quarter of all MPs, the president of the highest judicial body, the prosecutor general or the Commissioner for Fundamental Rights (Hungarian Fundamental Law, Art 24(5)–(6)). 154 The old Hungarian procedural framework also envisaged a role for the Alkotmánybíróság in determining the constitutionality of sub-statutory norms (see Act XXXII of 1989 on the Constitutional Court, Art 1(b)) using the notion ‘other legal means of state administration’. See also Decision 60/1992 of 17 November 1992, in which the Hungarian court held that it could check the constitutionality of ordinances, guides, directives and resolutions issued by ministries and other central state organs. Further, in Decision 4/1997 of 22 January 1997, On the review of international treaties, the Alkotmánybíróság held that it was competent to receive a posteriori challenges to statutes promulgating international treaties, in addition to the power then explicitly granted to it under the procedural framework to engage in a priori review of international agreements. In contrast, shortly after its establishment, the Hungarian court declared that it has no power to check the validity of the constitutional amendments, let alone the constitution itself: Decision 1260/B/1997 of 9 February 1998. 155 The competence of the Curia to adopt uniformity decisions is laid down in Act CLXI of 2011 on the Organisation and Administration of the Courts. The ability of the constitutional court to check the compatibility of such decisions with the Fundamental Law is expressly mentioned in Act CLI of 2011 on the Constitutional Court, Art 15 and codifies Decision 42/2005 of 14 November 2005. 156 Hungarian Fundamental Law, Art 24(2)(e). The president of the Curia and the prosecutor general acquired the right to submit rules of law for abstract review following the Fourth Amendment to the Hungarian Fundamental Law, adopted in March 2013. The mandate of the Commissioner for Fundamental Rights is laid

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local government decrees with the Fundamental Law is concerned, metropolitan or country government offices also have standing before the Alkotmánybíróság.157 There is no time limit within which claims of unconstitutionality should be submitted or within which the constitutional court must decide the case. A crucial change brought about by the new procedural regime is that individuals are no longer allowed to bring constitutionality challenges. A hallmark of the original Hungarian system was the recognition of actio popularis petitions, which entailed that everyone (including NGOs) could contest the validity of a legal rule before the Alkotmánybíróság on any constitutional ground without having to show that she was personally and directly affected by this rule.158 As we shall see below, the ability of individuals to initiate the procedure for abstract review resulted in the past in many important statutes and other legal acts being referred to the court for scrutiny.159 It should be noted that the Hungarian constitutional court is at present restricted in the grounds on which it can examine budgetary legislation submitted for abstract review. According to the Fundamental Law, the Alkotmánybíróság may only check budgetary statutes for conformity with the right to life and human dignity, the right to the protection of personal data, the right to freedom of thought, conscience and religion or rights connected to Hungarian citizenship; and only a violation of one of these specific grounds can be relied on by the judges to declare that the statute is indeed unconstitutional.160 Poland Articles 188(1)–(3) and 191 of the Polish constitution set out the main rules for a posteriori constitutionality challenges. The first of these constitutional provisions specifies that this procedure can be used to directly attack parliamentary statutes, international agreements and normative acts adopted by central state organs, that is to say, legal measures that have an abstract and general character, such as presidential regulations issued during a period of martial law.161 The Trybunał Konstytucyjny can only examine the constitutionality of legal provisions that have binding force, and the formal repeal of the measure under review in principle results in the proceedings being discontinued.162 The rules on standing can be down in Art 30. The Venice Commission had suggested that this public institution be granted a direct right of access to the constitutional court for abstract review, in part as compensation for the abolition of actio popularis petitions: Venice Commission, Opinion 614/2011 on three legal questions arising in the process of drafting the new Constitution of Hungary (CDL-AD(2011)001, Venice, 25–26 March 2011), 12. 157 Hungarian Fundamental Law, Art 24(2)(f), inserted by the Fourth Amendment to the Hungarian Fundamental Law. 158 Act XXXII of 1989 on the Constitutional Court, Art 21(2) read together with Art 1(b). 159 See section III-A(i)(c) below. 160 Hungarian Fundamental Law, Art 37(4). The provision stipulates that this restriction applies ‘As long as the level of state debt exceeds half of the Gross Domestic Product’, which will be the case for the foreseeable future. This limitation on the constitutional court’s abstract review powers was already put in place before the entry into force of the Fundamental Law on 1 January 2012, by means of an amendment to the old constitution, ie § 32/A(2) and (3). A more detailed treatment of this limitation and the yardsticks for review used by the constitutional court when deciding on the validity of other statutes – including its power to decide on perceived conflicts between Hungarian legal provisions and international treaties as per Act CLI of 2011 on the Constitutional Court, Art 32 – can be found in ch 5, section VI. 161 Polish constitution, Art 234. The constitutional tribunal is also competent to check the constitutionality of regulations and orders adopted in the period preceding Poland’s transition to democracy in 1989, which have not been abrogated. 162 Constitutional Tribunal Act, Art 39(1)(3). An exception applies if the legal provisions, their formal repeal notwithstanding, can still constitute the legal basis for individual decisions and a decision on their constitutionality is hence necessary for the protection of constitutional rights and freedoms: Decision SK 5/01 of 28 November 2001, Inadmissibility to review the constitutionality of rural land reform.

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found in Article 191. A distinction is made between two groups of petitioners. Those belonging to the first category can be considered privileged in that they enjoy unlimited access to the Trybunał Konstytucyjny for the purpose of triggering abstract review. This covers the following public institutions: the president; the presidents of each of the Houses of Parliament; 50 deputies or 30 senators; the chief justices of the supreme court and the chief administrative court; the public prosecutor general; the president of the central audit body; and the commissioner for citizens’ rights (basically, an ombudsman).163 The second group comprises the National Council of the Judiciary; constitutive organs of the lower echelons of government; trade unions; employers’ and occupational organisations; and churches and religious organisations. Within this group, only the National Council of the Judiciary may apply to the Trybunał Konstytucyjny for scrutiny of normative acts as regards the independence of the regular judiciary,164 whereas the other public institutions are only allowed to bring challenges against legal provisions that concern matters relevant to the scope of their activity.165 In practice, the commissioner for citizens’ right has been influential in referring laws and other acts to the court for abstract review. She filed 16 constitutionality challenges in 1998, 15 in 1999, 19 in 2000 and 14 in 2001, as compared to 2, 3, 4 and 7 referrals made by Members of Parliament in those same years.166 Furthermore, organs of local units of self-government and trade unions have also initiated such a posteriori challenges on a number of occasions. More generally, it has been noted that ‘The number of politically significant cases [decided under this procedure] is relatively small, whereas social, tax and administrative regulations are among the most often challenged’.167 Spain The Spanish Tribunal Constitucional has the power to engage in abstract review of legal norms after they have been promulgated when it adjudicates claims submitted to it through the recurso de inconstitucionalidad procedure.168 This procedure can be used to contest the constitutionality of legislation and other acts with force of law adopted by the central State or the autonomous communities; international treaties; organic laws and statutes of autonomy; and the standing orders of the houses of Parliament as well as those of the legislative assemblies of the autonomous communities.169 A posteriori constitutionality challenges may be filed by the prime minister, 50 deputies or senators, the ombudsman, and the executive and legislative organs of the autonomous communities.170 The latter bodies are however restricted in their ability to obtain access to the Tribunal Constitucional.171 Polish constitution, Art 191(1)(1). ibid, Art 186(2). 165 ibid, Art 191(1)(3)–(5) and (2). 166 L Garlicki, ‘The Experience of the Polish Constitutional Tribunal’ in Sadurski (ed), Constitutional Justice, East and West (n 113) 274. 167 ibid. 168 Spanish constitution, Art 161(1)(a). 169 Organic Law 2/1979 on the Constitutional Court, Art 27(2). 170 Spanish constitution, Art 162(1)(a); Organic Law 2/1979 on the Constitutional Court, Art 32. In sentencia 42/1985 of 15 March 1985 at FJ 2, the Tribunal Constitucional explained that the right to bring a recurso de inconstitucionalidad has not been conferred on the various public institutions (or a certain proportion of its members) for the defence of particular interests or rights, but in order to uphold ‘the general interest and the supremacy of the constitution’. 171 These restrictions are not included in the constitution, but were added later by the drafters of Organic Law 2/1979 on the Constitutional Tribunal. Some commentators have argued that this limitation is for this reason unconstitutional: see the references included in A Medrano, ‘Active Legitimization in Constitutional Proceedings: The Spanish Case’ (26th International Congress of Comparative Law, Brisbane, July 2002), 172. 163 164

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First, they are not allowed to bring recursos de inconstitucionalidad against legal norms enacted by their own or another autonomous community. Second, claims that a particular statute or other norm passed by the central level of government is unconstitutional will only be admissible if the organs of the autonomous communities demonstrate that the contested provisions ‘may affect their own area of autonomy’.172 These restrictions were inspired by fears of excessive litigiousness on the part of the autonomous communities against each other as well as against the central State, in view of the open-ended approach adopted by the constitution to the territorial division of competences.173 We shall see later that the standing of the autonomous communities before the Tribunal Constitucional has been a recurring theme in the design of the framework setting out the rules on access and that the two echelons of government also have different procedural rights in actions for the resolution of jurisdictional disputes.174 In its early case law, the Spanish tribunal put forward a narrow reading of the requirement that the autonomous communities must show an impact on their area of autonomy, in line with the original idea that the latter would only have a limited right to request abstract review of legal provisions.175 Later rulings show a more relaxed approach, with the Tribunal Constitucional now holding that the legitimization of the Autonomous Communities to lodge an appeal of unconstitutionality is not aimed at vindicating an infringed competence, but to purify the legal system and in this sense, this legitimization extends to all cases where a natural link between the state law and the com petences of the autonomous communities exists, which, in turn, cannot be interpreted in a restrictive way.176

The activation of the recurso de inconstitucionalidad procedure in principle does not suspend the operation of the contested legal norm. However, the government may request that the legal norms adopted by the autonomous communities that it has challenged as unconstitutional are suspended for up to five months.177 The constitution does not set a deadline by which legal provisions can be referred for abstract review. The drafters of the organic law on the Tribunal Constitucional were, however, of the opinion that such a deadline was necessary, in order to protect the supremacy of Parliament and preserve legal certainty.178 Accordingly, the relevant procedural rules provide that constitutionality challenges must be brought within three months of the publication of the objectionable norm.179 The constitutional tribunal requires considerably 172 Organic Law 2/1979 on the Constitutional Court, Art 32(2). A similar approach is adopted by the Portuguese constitution, which grants the executives and legislative assemblies of the Azores and Madeira the right to refer national legislation that is alleged to constitute a ‘breach of the rights of the autonomous regions’ to the Portuguese constitutional tribunal (Portuguese constitution, Art 281(2)(g)). 173 See eg J Garcia Roca, Autonomías territoriales y forma de Estado: contribución al estudio de la forma territorial del Estado espanõl (Madrid, Universidad Complutense, 1985). 174 See section III-C(i) below. 175 See eg sentencia 25/1981 of 14 July 1981. 176 Sentencia 199/1987 of 16 December 1987 at FJ 1. See also sentencia 84/1982 of 23 December 1982. 177 Spanish constitution, Art 161(2); Organic Law 2/1979 on the Constitutional Court, Art 30. Such requests are usually granted. Within five months, the Tribunal Constitucional must either confirm or lift the suspension. 178 Eibert, ‘The Spanish Constitutional Tribunal in Theory and Practice’ (n 91) 442. 179 Organic Law 2/1979 on the Constitutional Court, Art 33(1). The second paragraph of this Article (added by Organic Law 1/2000 of 7 January 2000) provides that if the president of the executive or the executive bodies of the autonomous communities assert the unconstitutionality of national legislation on competence grounds, and have commenced formal negotiations to resolve the territorial dispute which are communicated to the Tribunal Constitucional, the time limit may be extended to nine months.

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more time to decide recursos de inconstitucionalidad, with delays of several years from the initiation of the procedure not being uncommon. Italy The Corte costituzionale can also be called upon to examine the constitutionality of legal norms in the abstract. However, the applicable procedural regime differs in some respects from that in place in the other countries canvassed above. The relevant provision of the Italian constitution, Article 127, was given its present meaning in 2001, in the context of a ‘quasi-federal’ state reform in Italy that involved strengthening the position and responsibilities of the regions.180 On its face, Article 127 appears tailored to the resolution of conflicts concerning the vertical division of competences between the State and Italy’s regions: it gives the State181 the right to contest regional laws as ultra vires and, similarly, each of the 20 regions182 and the autonomous provinces of Trento and Bolzano can challenge state laws183 or laws adopted by another region for encroaching upon its authority. It should be appreciated that no other public body or members thereof (such as parliamentary minorities) have access to the Corte costituzionale to request that it review the constitutionality of State or regional legislation in the abstract. Crucially, in a ruling delivered after the 2001 constitutional revision, the Corte costituzionale held that the State is not as restricted in the grounds that it may plead to support its petition as the text of Article 127 appears to suggest. While the regions may object to State laws only on the ground that they have been adopted in violation of the constitutional allocation of competences, the Italian court allows the State to adduce an infringement of any constitutional provision when claiming that a regional legal norm is invalid.184 As such, and notably from the State’s perspective, the procedure outlined in Article 127 of the constitution is akin to, and serves a similar 180 Constitutional law no 3 of 18 October 2001; constitutional law no 1 of 22 November 1999; constitutional law no 2 of 31 January 2001. See eg L Del Duca and P Del Duca, ‘An Italian Federalism? The State, its Institutions and National Culture as Rule of Law Guarantor’ (2006) 54 American Journal of Comparative Law 799; M Evans, ‘The Italian Constitutional Court’ (1968) 17 ICLQ 602, 609–16 for a discussion of some of the early case law concerning institutional conflicts. Under the pre-2001 framework (Constitutional Law no 1/1948, Art 2; Law no 87/1953, Arts 31–35), the government could question the constitutional validity of regional laws a priori, that is, before they were enacted, while the regions could challenge state laws only after these had been promulgated (a posteriori). More precisely, the State government would first have to invite the regional council to reconsider the regional law, either because it was alleged to exceed the limits of the region’s competence or because it conflicted with the national interest or interests of the other regions. If the regional council reaffirmed its legislation by a majority of its members, the government could either ask Parliament to annul regional laws due to a conflict with national interests or challenge the constitutional validity of the law before the Corte costituzionale. In the latter case, the government could allege an infringement of the division of competences or rely on any other perceived constitutional defect of the regional law in its petition: see eg sentenza 126/1976 of 7 May 1976; sentenza 212/1976 of 15 July 1976; sentenza 123/1975 of 21 May 1975; sentenza 132/1975 of 21 May 1975; sentenza 221/1975 of 8 July 1975; sentenza 147/1972 of 14 July 1972; sentenza 8/1967 of 1 February 1967. 181 The State acts through the Council of Ministers in this respect: see law 400/1988, Art 2(3)(d). 182 A list of the various regions can be found in the Italian constitution, Art 131; their competences are set out at Art 117. 183 Or other acts adopted by the State that have the force of law, notably delegated legislative decrees (decreti legislativi delegati, Italian constitution, Art 76) and emergency decree laws (decreti-legge, Italian constitution, Art 77). 184 Sentenza 274/2003 of 8 July 2003, confirming the position initially adopted in sentenza 30/1959 of 30 April 1959. To justify this difference in treatment, the Corte costituzionale relied on two factors. First, the text of Art 127 of the Italian constitution continues to use different language for the State and for the regions that mirrors the pre-2001 situation: the State may act if it considers a regional law ‘as exceeding the powers of the region’, whereas the regions can go to court if they consider State laws ‘as infringing on [their] own sphere of competences’. Second, the State has a special position in order to ensure the unity of the State, which manifests itself amongst other things in the fact that all echelons of government must respect the constitution.

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function to, an abstract constitutionality challenge. Claims for abstract review of State or regional legislation must be brought within 60 days of the publication of the objectionable legislation.185 The Corte costituzionale can of its own motion suspend the execution of the contested norm if there exists a ‘risk of irreparable harm to the public interest or the legal system of the Republic’ or a ‘risk of grave and irreparable harm to the rights of citizens’.186 Further, each of the Italian regions is constitutionally required to adopt a regional statute regulating its form of government and setting out basic principles pertaining to its organisation and functioning.187 Under Article 123(2) of the Italian constitution, the government may refer these regional statuti to the Corte costituzionale within 30 days of their publication for an assessment of their constitutional legitimacy.188 In a series of important decisions delivered in 2004, the Corte costituzionale clarified that the statuti cannot be seen as regional constitutions and while they can incorporate provisions that give expression to the various political convictions of the different regional communities, such provisions have only political or cultural value; they do not have legal force.189 Comparative Remarks In what follows, we will first consider the option of bringing a posteriori constitutionality challenges in comparative perspective. The extent to which this avenue to constitutional courts is available in a particular legal system is dependent on the same factors mentioned earlier when examining how countries have designed the a priori version of this procedure. These are, namely, the range and selection of legal norms that are susceptible to abstract review, as well as the rules on standing and issues of timing. These aspects will be examined in turn. This comparative analysis is subsequently supplemented and contextualised by general observations on the possible ramifications of allowing public institutions to file constitutionality challenges for the position of constitutional courts within the national legal system and their relationship with the political branches of government. The principal rationale for giving constitutional courts powers of abstract review is to ensure that the legislature does not overstep its constitutional boundaries. As such, it is readily understandable that every country examined in the preceding pages allows a posteriori challenges against parliamentary statutes, even though the Hungarian court can review and where necessary strike down budgetary legislation on certain limited grounds only. In those states that can be characterised as federal or quasi-federal (Belgium, Germany, Italy and Spain), the notion of legislation is understood to encompass statutes enacted by the national Parliament and legislation adopted at the lower level of government. The desire to ensure that the legislature respects its constitutional limits at all times explains why several legal systems have given their constitutional courts the power to adjudicate constitutionality challenges against acts other than ordinary statutes that have been promulgated by the legislature. These include acts approving international commitments (Belgium, Poland and Spain), the standing orders of the Houses of Parliament (Spain), organic laws (Spain), and constitutional acts (Czech Republic). Law no 87/1953, Art 33. Law no 131/2003, Art 9(4) amending law no 87/1953, Art 35. 187 Italian constitution, Art 123(1). 188 ibid, Art 123(2); see also sentenza 196/2003 of 23 May 2003, in which the Corte costituzionale confirmed that the regional statutes must be in harmony with the precepts and principles of the constitution. 189 Sentenza 372/2004 of 29 November 2004; sentenza 378/2004 of 29 November 2004; sentenza 379/2004 of 29 November 2004. For discussion, see eg G Delledonne and G Martinico, ‘Handle with Care! The Regional Charters and Italian Constitutionalism’s “Grey Zone” ’ (2009) 5 European Constitutional Law Review 218. 185 186

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Furthermore, it is important to note that some constitutional courts have jurisdiction to engage in abstract review of legal provisions enacted by State organs other than the legislature. This is the case in the Czech Republic, Hungary and Poland. The assortment of legal norms susceptible to attack on constitutional grounds in the first of these countries is especially broad and covers not only regulations adopted by other organs at the central government level, but also extends to regional and municipal ordinances. Such a broad material scope of the procedure for a posteriori abstract review may, on the one hand, be troubling when considering the consequences that may follow from this, both for the court’s workload and for the traditional division of labour between constitutional courts and the regular judiciary, whereby the former have a monopoly on verifying the constitutionality of statutes and the latter are in charge of deciding whether norms below the rank of statute comport with the constitution. On the other hand, one of the features of the rise of the regulatory State is that the legislature increasingly ‘outsources’ the determination of important legal questions to the executive for reasons of time and lack of resources (such as expertise). As such, by recognising that constitutional courts are competent to receive claims alleging the unconstitutionality of non-legislative provisions, a legal system can ensure that the most legally significant choices and decisions can be reviewed in light of the constitution by the institution specially created to uphold that foundational text, in particular as the legislature devolves more powers and responsibilities to other State organs. The countries examined earlier have also made different choices as regards the selection of public institutions that can bring a posteriori constitutionality challenges. All of them accord standing to the government (including federated or regional governments in the federal or quasi-federal systems) and, with the notable exception of Italy, a certain proportion of Members of Parliament. Three qualifications are in order, however. First, the Czech government can only invoke the jurisdiction of the Ústavní Soud to ask for abstract review of statutes when such is necessary to comply with a ruling made by an international court. Second, the governing bodies of the Italian regions are restricted in the grounds that they may plead to contest the constitutionality of State legislation, in that they can only argue – to the exclusion of other provisions of the Italian constitution – that the objectionable statute breaches the constitutional distribution of competences. Third, the proportion of MPs required to trigger the procedure for a posteriori abstract review – and hence the ease with which they can invoke the jurisdiction of the constitutional court – is not the same in the various legal systems that allow lawmakers to bring constitutionality challenges. For example, the Belgian rules stipulate a threshold of two-thirds of all MPs, whereas the Spanish procedural regime merely requires 50 signatures out of a total of at least 300 MPs190 (or approximately 16 per cent) for an admissible constitutionality challenge. Leaving aside these two categories of potential applicants, differences in the rules on standing are also apparent. Germany and Belgium do not allow any public institution other than their government and a certain proportion of Members of Parliament to bring constitutionality challenges. The Spanish and Hungarian rules also allow the ombudsman to refer legal provisions for abstract review, in what has been explained as ‘a kind of compensation for the fact that the individuals are not included amongst the legitimated parties’.191 In contrast, many central-eastern European countries have adopted a decidedly Spanish constitution, Art 68(1) stipulates that the number of deputies shall be at least 300 and at most 400. Medrano, ‘Active Legitimization in Constitutional Proceedings’ (n 171) 174. The Tribunal Constitucional has held that individuals cannot act as petitioners in actions for annulment, even if they act on behalf of a collective or a group: sentencia 48/1980 of 13 October 1980; sentencia 76/1980 of 29 October 1980. 190 191

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generous approach to the question of who can file abstract challenges. Although the Czech Republic has cleared the path to the constitutional court for a wide range of institutions only for claims asserting the unconstitutionality of sub-statutory norms, no such limitation is in place in Poland, where the prosecutor general, trade unions and even churches can attack statutes (the latter admittedly only insofar as they can show that the contested legislation concerns matters relevant to the scope of their activity). Before 1 January 2012, the Hungarian system too recognised that several State organs and private organisations (as well as individuals) could initiate the procedure for a posteriori abstract review of legislation. A corollary of the above findings is that, of the courts examined in this book, the Czech Ústavní Soud and the Polish Trybunał Konstytucyjny have the greatest opportunity to check the constitutionality of legal provisions in the abstract. This is given that the procedural frameworks in these countries envisage constitutionality challenges that are based on a broad scope ratione materiae combined with a broad scope ratione personae. The procedural arrangements in place in these countries (and the same can be said about Hungary until 31 December 2011) appear to be linked to the raison d’être of their constitutional courts192 and the concomitant desire to ensure the supremacy of the new constitution as well as the effectiveness of its new guardian in ensuring respect for the constitutional provisions and principles. This all seems to suggest that the different European countries can be located along a rough east-west divide when it comes to the ability to file a posteriori constitutionality challenges, whereby the younger constitutional systems in central and eastern Europe are more forthcoming in granting access to their constitutional courts and allowing a broader palette of legal norms to be attacked. There is a certain truth to this: ombudsmen, audit bodies and supreme courts are more likely to be able to initiate this procedure in central and eastern Europe than in western Europe.193 Yet, some caution is also due: it should be realised that this divide is a crude one. For instance, Estonia only allows its legal chancellor to bring abstract challenges, whereas in Belgium ‘any person that can prove an interest’ can refer statutes to the Cour constitutionnelle for abstract review (as we shall see in more detail below). A third factor to consider has to do with timing. Belgium, Italy and Spain prescribe a certain window within which constitutionality challenges must be filed. Failure to take action within this deadline means that the statute is immune from abstract review, although it remains possible to question its validity in the context of proceedings before the ordinary courts, which must then consult the constitutional court by sending a preliminary question as to the statute’s possible unconstitutionality.194 The other countries do not set a deadline after which a posteriori constitutionality challenges are no longer admissible. In addition, all constitutional courts have discretion in deciding when to hand down their decisions. While this may be criticised from the perspective of legal certainty, it fits in with notions of judicial independence that value a court’s ability to organise its own docket. More import antly, the absence of a time limit within which the constitutional court must render its Explored in ch 2, section III-B. In other EU Member States that provide for a posteriori challenges to contest the constitutionality of legal provisions in the abstract and that have not been examined in the main text, ombudsmen are also allowed to file such challenges in Latvia, Portugal, Romania and Slovenia; audit bodies can initiate this procedure in Latvia and Slovakia; and supreme courts have a right of audience with the constitutional court in Bulgaria and Slovenia. 194 The preliminary reference procedure is discussed in section III-A(ii) below. 192 193

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judgment gives it flexibility in dealing with political ‘hot potatoes’. Consider the following comment regarding the practice of the Spanish Tribunal Constitucional: Were it not for the significant delay involved with deciding most cases (up to ten years from the filing of an appeal), such effects [those of the court’s ruling on public opinion] could substantially threaten the Court’s legitimacy. Yet, since so much time passes, the original controversy is diminished, and the Court is able to deliberate without the pressure of political consequences for its decisions.195

To be sure, postponing the delivery of judgments is not exclusive to the procedure for abstract review, but is available more generally as a strategic tool in the hands of constitutional courts to regulate their involvement in determining constitutional questions. Whether this is considered desirable is a different question: the argument can also be made that the whole point of having a separate constitutional court (as opposed to adopting a system of decentralised constitutional adjudication) and giving it abstract review powers is precisely that the court will confront allegations regarding the perceived unconstitutionality of legal provisions head-on.196 What can be said more generally about the decision to establish a procedure that allows the constitutional court to review statutes and other legal provisions in the abstract – be it before or after these norms have been promulgated? Of the possible gateways to obtain access to constitutional courts, this procedure and the concomitant grant of abstract review powers are usually considered as the most politically charged and therefore as prone to threaten the courts’ political legitimacy.197 A combination of three factors underlies this perception of constitutionality challenges. First, the abstract nature of this procedure means that there is no specific dispute to connect – and confine – the constitutional issues. To all intents and purposes, the constitutional court is thus evaluating the legislature’s work as is in light of the constitution. This detracts from the adjudicatory nature of the proceedings and make them more akin to legislative deliberations, which explains the use of epithets such as the constitutional court as a ‘quasi-legislator’198 or a ‘third chamber’199 of Parliament in discussions about abstract review. In turn, this perceived similarity in function may render questions about the (il) legitimacy of allowing courts to evaluate and, where necessary, strike down statutes adopted by the popularly elected legislature – usually referred to as the countermajoritarian difficulty200 – particularly acute. 195 E Guillén Lopez, ‘Judicial Review in Spain: The Constitutional Court’ (2008) 41 Loyola of Los Angeles Law Review 529, 546. 196 Along those lines, see Ferreres Comella, Constitutional Courts & Democratic Values (n 8) in particular ch 7 (Overcoming Judicial Timidity). But contrast Ackerman, who has suggested that the constitutional courts should only be able to engage in concrete review, that is, examine the constitutionality of legal norms, in the context of actual legal disputes as this would make it easier for these courts to make use of techniques such as ripeness, mootness, the political question doctrine or the void for vagueness doctrine in order to reduce their involvement in controversial or sensitive constitutional issues. See B Ackerman, The Future of the Liberal Revolution (New Haven, Yale University Press, 1992) 108. 197 To the extent that procedures that enable the constitutional court to resolve institutional disputes (both vertical and horizontal) have a character akin to abstract constitutionality challenges, the same considerations will apply. 198 Sadurski, Rights before Courts (n 94) 67. 199 A Stone Sweet, The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective (New York, Oxford University Press, 1992) 108. 200 This term was coined by Alexander Bickel in his book The Least Dangerous Branch: The Supreme Court at the Bar of Politics (New Haven, Yale University Press 1962).

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Second, abstract constitutionality challenges are typically brought by those holding political office, notably including a certain proportion of Members of Parliament. In practice, these tend to be parliamentarians belonging to the opposition, who were unable to persuade their colleagues on the floor of the legislature. It can be readily appreciated that their decision to go to court and ask for review of legislation in the abstract will not always or only be inspired by a general public concern to ensure that statutes with doubtful constitutional credentials are invalidated. This is confirmed by France, Hungary and Spain’s experiences with a priori constitutionality challenges and partly explains why Spain decided to abolish preventive scrutiny of legislative bills at the behest of a parliamentary minority. Abstract constitutionality challenges can thus easily become part of the political game, amounting to the continuation of politics in another venue. Third, there is the issue of the timing of this type of procedure. Several countries do not establish a deadline by which challengers should refer legislation to the court for review on pain of their claims being declared inadmissible (in particular as far as the a posteriori version of this type of procedure is concerned). Having said that, petitions may be and often are filed soon after the objectionable statute has been promulgated. This means that polit ical emotions and partisan feelings might not yet have cooled down. It may consequently be more difficult for the constitutional court to convince the parties that it has arrived at the ‘correct’ outcome and that the losing side should accept its defeat. Rulings delivered at the close of procedures involving the exercise of abstract review powers are particularly prone to trigger critical remarks or complaints that the court decides cases ‘politically’ in Parliament and sometimes also in the media, which could ultimately erode the court’s political legitimacy. Moreover, when the judicial deliberations on the constitutionality of the impugned statute come on the back of discussions in the legislative assembly, this could even reinforce the impression that the constitutional court is participating in the law making process whereby statutes are only considered as becoming part of the national legal order after they have been endorsed by the constitutional court. It should be clear that when any of the three factors just discussed is less pronounced, this might diminish the political character of abstract constitutionality challenges. For instance, under the Belgian system the threshold for members of the legislative assemblies to initiate this procedure is set at two-thirds of all MPs, which renders more remote the prospect of disgruntled minorities turning to the Cour constitutionnelle to continue their political fight with the majority. Similarly, in Estonia individual legislators are simply not granted a right of access to the constitutional review chamber of the supreme court through this procedure: only the legal chancellor can refer legislation for abstract review. As for the abstract nature of constitutionality challenges, consider as an example the German rules, which allow such challenges consequent upon the refusal of a government body to apply a statute that it believes is unconstitutional – thereby giving the procedure a more concrete dimension. Further, as regards the issue of timing, we recall the technique of delaying giving judgment described earlier, which constitutional courts can use to assuage the risk of being placed in the midst of a politically controversial situation. Besides the high political visibility which a constitutional court may need to contend with when hearing and deciding constitutionality challenges, another concern expressed in relation to this type of procedure concerns the fact that review is abstract. This is taken to make it more difficult for constitutional courts to duly check the validity of the legal provisions in light of the constitution. The reasoning is as follows. Some constitutional defects of a statute or other legal norm can be detected by simply scrutinising the text, while others

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will only become apparent when the legislation is actually put into operation and might be difficult to predict beforehand. Alternatively, it may happen that a law deserves constitutional clearance at the time of its promulgation, but the passage of time or the evolution of society puts it in murkier waters. When ruling on legal norms in the context of abstract constitutionality challenges, the court may thus not have the complete picture and this could have a distortive effect on its ruling. There is merit in this argument, which is why many legal systems also give their constitutional courts jurisdiction to receive preliminary questions that are raised by ordinary courts about constitutional issues related to a piece of legislation that they have encountered when interpreting and applying that legislation in specific cases.201 At the same time, Ferreres Comella correctly downplays the acuteness of this problem: First, [abstract review] makes it possible for the court to check statutes even when it is difficult to generate a specific case or controversy. Sometimes, when a case finally comes up to the court, it is too late: the statute has already produced most of its effects in an irreversible manner. . . . Abstract review does not mean that no knowledge about the world is considered. After all, the legislature discusses and enacts its statutes “in the abstract” too, and there is no doubt that it can rely on an important body of empirical information to make decisions. A constitutional court that examines a statute in the abstract can avail itself of a similar body of data. Sometimes, moreover, nothing important is learned from the application of a statute in a specific case. Consider, for example, the question whether a criminal statute has a chilling effect on speech because it is too broad, or whether it is sufficiently precise to give fair warning to citizens about the conduct that is being prohibited, or whether it has been approved through the right constitutional procedures . . .202

Finally, mention should be made of what can be considered the counterpart to the abstract constitutionality challenge, namely the procedure for establishing a legislative omission.203 Through this procedure, the constitutional court does not place limits on the legislature’s exercise of powers by striking down statutes that it finds do not comport with the constitution, but instead declares that the legislature has infringed the constitution by failing to put in place the legal framework necessary to implement or give effect to particular constitutional requirements.204 Given the nature of the inquiry, the constitutional court engages in abstract review when determining whether there indeed exists an unconstitutional omission to legislate. It should be clear that this procedure raises legitimacy concerns, not least because of the risk that judgments establishing an unconstitutional gap in the body of legislation are not heeded by the legislature. The Portuguese system recognises a special procedure for the identification of legislative omissions205 and, prior to 1 January 2012, the 201 Luxembourg has not established any procedures that grant public institutions or individuals direct access to the court, and the court can accordingly only review statutes with a view to keeping the legislature within constitutional bounds in the context of answering preliminary questions raised by the ordinary courts.. 202 Ferreres Comella, Constitutional Courts & Democratic Values (n 8) 67–68. 203 See further the National Reports submitted by several European constitutional courts to the XIVth Congress of the Conference of European Constitutional Courts held in Vilnius (Lithuania) in 2008, which dealt with the topic Problems of Legislative Omission in Constitutional Jurisprudence. 204 This power should be distinguished from the competence enjoyed by many constitutional courts to find, when adjudicating a claim submitted through the procedure for abstract review or following a preliminary question raised by an ordinary court, that the law under review is (partially) unconstitutional due to the existence of a legal gap. 205 Portuguese constitution, Art 283. The president and the ombudsman have standing to initiate this pro cedure, and the president of the legislative assembly of one of the autonomous regions similarly has a right of audience with the court when the omission has resulted in a breach of the constitutional rights of those regions.

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Hungarian constitutional court was also allowed to make such findings.206 In practice, the number of claims submitted through this procedure is negligible.207 c. Abstract Constitutionality Challenges Brought by Private Individuals So far, we have examined the conditions under which various public institutions can contest the validity of a particular legal norm in the abstract before the constitutional court. As mentioned earlier, Belgium also allows private individuals who are personally and directly affected by legal provisions to file such claims with the Cour constitutionnelle, and until 1 January 2012, the Hungarian Alkotmánybíróság was similarly competent to receive abstract challenges brought by individuals and associations. The approach taken by these two European countries is highlighted immediately below. Belgium Article 142 of the Belgian constitution declares that ‘any person that can prove an interest’ can go to the Cour constitutionnelle and claim that a statute is unconstitutional. The more detailed legislation on the constitutional court confirms that individuals ‘with a justifiable interest’ can activate the procedure for a posteriori abstract review within six months of the publication of the pertinent legal rule and clarifies that the term ‘person’ covers both natural and legal persons.208 Both Belgian and foreign nationals enjoy standing in the context of this procedure.209 The constitutional designers deliberately left open the question of what qualifies as a ‘justifiable interest’.210 The intention was to allow the Cour constitutionnelle to flesh out the meaning of this concept in its decisions, thereby giving it some measure of control over the size and configuration of its docket. The Belgian court has duly done so, in what one of its former presidents considers to be its most original case law.211 A guiding principle in this respect has been the need to avoid turning Article 142 into a veritable actio popularis.212 Accordingly, individuals are granted standing on the condition that they can demonstrate that they are liable to be personally, directly213 and unfavourably214 affected by 206 Act XXXII of 1989 on the Constitutional Court, Art 1(e) read together with Art 49. The procedure could be activated by ‘anyone’ or by the Hungarian court of its own motion. 207 Although several claims were submitted to the Hungarian constitutional court through this procedure shortly after its establishment, their number rapidly declined in the years that followed. 208 Special Act on the Constitutional Court, Art 2(2). 209 Judgment no 25/90 of 5 July 1990; judgment no 7/95 of 2 February 1995. 210 Memorie van Toelichting, Parl St, Senaat, GZ 1988–89, no 483/1, 5; verslag Lallemand and Baert, Parl St, Senaat, GZ 1988–89, no 483/2, 46 and 63; verslag Onkelinx and Merckx-Van Goey, Parl St, Kamer, GZ 1988–89, no 633/4, 6, 13, 21 and 22. Reference was however made to the elaborate case law of the Council of State regarding the same notion: ‘Een commissielid vraagt wat de strekking is van het begrip “belang”. De Vice-Eerste Minister wijst erop dat dit begrip dezelfde strekking heeft als die welke eraan wordt verleend in de rechtspraak van de Raad van State, die nu duidelijk vast ligt. De Commissie is het eens over de inhoud van het begrip belang’ [translation: ‘A member of the committee asks what the meaning is of the concept “interest”. The vice-prime minister indicates that this concept has the same meaning as that which appears in the established case law of the Council of State. The committee is in agreement about the meaning of the concept interest’]: verslag Lallemand and Leemans, Parl St, Senaat, BZ 1988, no 100-3/2º, 13. 211 See L de Greve, ‘Tien Jaar Arbitragehof ’ [1994–95] Rechtskundig Weekblad 1177, 1179, who points in particular to the case law accepting that associations with a societal purpose can be accorded standing. 212 This is standing case law. For an early judgment in which the Belgian court voiced this concern, see judgment no 9/89 (S) of 27 April 1989 at B.3. 213 An interest is considered direct if there is a sufficient causal link between the contested legal norm and the disadvantage allegedly suffered: see judgment no 85/95 of 14 December 1995 at B.1.7. 214 It is immaterial in this respect that the challenger is in a more advantageous position under the legal rules referred for review than under the previous legal regime: see judgment 72/93 of 7 October 1993 at B.1.1–B.1.3; judgment no 26/90 of 14 July 1990.

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the law asserted to breach the constitution. The challenger’s interest must further be current215 and legal.216 Natural persons moreover are prevented from activating the procedure for abstract review to safeguard interests of a moral nature. Thus, when World War II partisans and concentration camps survivors sought to contest the constitutionality of a decree that was intended to provide additional social assistance to persons affected by the war, mainly because they were offended that this decree did not differentiate the way such persons had been so affected, the Cour constitutionnelle denied the petitioners standing: B.5.7. Neither the moral disapproval of a decree, nor the feelings it evokes in the applicants – the seriousness of which cannot be contested – nor the interest in ensuring that the principle of legality is observed in all affairs, is a sufficient interest within the meaning of Article 142, third indent, of the Constitution and article 2, 2° of the special law of 6 January 1989 [Law on the constitutional court]. To be sure, some citizens have committed themselves more than others, in particular through their activities and publications, to the defence of certain values. But while an association can, by means of its societal goal, identify itself with such a goal, the applicants differ from each other only because of the degree of their commitment to a certain cause. The case-by-case verification of the degree of commitment to such a cause is however not a suitable means to prevent the actio popularis.217

Finally, it should be pointed out that the Belgian court has also made strategic use of the interest requirement to delimit its involvement in politically precarious cases. A good example of this instrumental approach is its Decision 76/94.218 Two individuals brought an abstract challenge to the Belgian Act approving the Treaty on European Union (also known as the Maastricht Treaty), asserting in particular the invalidity of the treaty provisions granting non-Belgian EU citizens the right to vote and stand as candidates in municipal elections. The challengers argued that as a voter and local councillor, they had standing before the constitutional court: the objectionable provisions were said to be incompatible with their prerogative, deriving from their right of nationality, that only Belgians have the right to vote and would furthermore reduce the weight of their vote in the electoral corps, change the composition of that corps and increase the number of candidates in municipal elections. The Cour constitutionnelle refused to examine the case on its merits and declared the petitions inadmissible for lack of a justifiable interest specific to the challengers: B.7. The right to vote is a fundamental political right in a representative democracy. Every voter or candidate demonstrates the requisite interest to demand the annulment of provisions that may negatively affect his vote or candidacy. B.8. The widening of the voting and elections conditions complained of by the applicants does not, however, infringe either the active or the passive right to vote. The freedom of everyone to vote for the candidate of his choice and to stand as a candidate in elections, is not affected. B.9. It is true that the contested widening can affect the outcome of municipal elections, because its introduction in domestic law will offer a greater number of people the chance to vote and be elected, but the interest that the applicants have to express such criticism, is no different from the interest which any individual could have to challenge the rules on the basis of which European integration rests. (my translation). See judgment no 33/98 of 1 April 1998. See judgment no 127/2000 of 6 December 2001 at B.3.1 and B.3.2; judgment no 100/2001 of 13 July 2001 at B.6.1 and B.6.2. (my translation). 217 Judgment no 110/99 of 14 October 1999. See also judgment no 39/91 of 19 December 1991 at 4.B.3. 218 Judgment no 76/94 of 18 October 1994. 215 216

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The approach taken by the Belgian court as evidenced in this extract can be criticised as harsh, especially when compared to the rather more generous way in which it typically construes the interest requirement in deciding on the admissibility of petitions for abstract review brought by individuals. It is, however, readily understandable when considering the case in its wider political context. European treaties must be ratified by every Member State before they can enter into force.219 The Belgian federal Parliament passed the Act of assent on 26 November 1992, with a vast majority voting in favour. It was not until almost a year later, on 30 October 1993, that this Act was published in the Moniteur belge. It will be remembered that in Belgium, it is only possible to activate the procedure for abstract review within six months of the date of publication of the legal norm believed to be unconstitutional. When the petition of the two individuals seeking to attack the Act of assent reached the desk of the registrar at the Cour constitutionnelle, the Maastricht Treaty had already entered into force. Worse, it appeared that were the petitioners’ claims to be examined on their merits, a finding that the Act was incompatible with the text of the Belgian constitution as it stood then would be unavoidable.220 The constitutional court was understandably keen to avoid navigating what would have been a political minefield and used the rules on standing for individuals strategically to side-step having to deal with the constitutional issue. Hungary Until recently, private individuals in Hungary were also permitted to go to the constitutional court and ask for an examination of the validity of statutes and other legal norms in the abstract. The Hungarian system was unusual in that the constitution in force until 31 December 2011 granted ‘everyone’ (NGOs and other associations included) the right to file abstract constitutionality challenges, without any further conditions.221 Unlike Belgium, individuals were not required to demonstrate that the legal provisions they sought to attack had affected them in a particular way in order to be accorded standing before the Alkotmánybíróság. As such, before the 2012 constitutional reform, a veritable actio popularis was available in Hungary that could be used to initiate abstract review of legislation. It must further be mentioned that, in another contrast to the Belgium system, there was no deadline by which the objectionable statute or other legal norm should be referred to the court for scrutiny, failing which the petition would be declared inadmissible. There does not appear to be a single reason that motivated the introduction of the actio popularis. Herman Schwarz, who has acted as an advisor to several countries in centraleastern Europe in their process of transition to democracy and has extensively researched the theme of constitutional justice, writes: According to one observer, the actio popularis was adopted because the opposition was afraid that all high state offices would be filled by former communists, so they wanted to open up the possibility that ordinary citizens could get to the Court easily. Others suggest that it was to enable the Treaty on European Union, Art 48(4). When the Belgian Council of State was asked to deliver an advisory opinion on the compatibility of the Act of assent with the constitution, it found that there was a need for constitutional revision. More particularly, the Council of State indicated that the provision setting out the right to vote should be amended before the ratification process could be completed in a constitution-conform manner. However, given the arduous process of constitutional amendment in Belgium, the federal Parliament decided to proceed with ratification immediately. The Belgian constitution was eventually amended and its Art 8 now explicitly recognises that non-Belgian EU citizens can also be granted the right to vote in accordance with Belgium’s international and supranational obligations and further states that this right may even be extended by law to non-EU citizens resident in Belgium. 221 Hungarian constitution, Art 32/A(3); Act XXXII of 1989 on the Constitutional Court, Art 21(2) read together with Art 1(b). 219 220

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Court to review the entire legal system because the more people had access, the more issues would get to the Court.222

The Hungarian actio popularis has been hailed as the one of the country’s ‘major contributions to the spectrum of the constitutional judiciary’.223 The procedure conceived of private individuals as objective constitutional guardians or ‘trustees of the public good’.224 In a similar vein, the actio popularis has been instrumental in the transition to democracy by involving the population at large in this process, thereby fostering social change, and is said to have helped citizens become aware of, and familiar with, the country’s new constitutional values and principles. As explained by the first president of the Alkotmánybíróság, writing a few years after he stepped down from the bench: The unlimited standing opened the door to citizens to participate in the constitutional trans formation of the entire legal order. An unexpected flow of motions reached the court. About 90 per cent of the applications came from the people. Moreover, the large part of the laws challenged would never have been brought to court by ministers or parliamentarians because that would have contradicted governmental interests, or had heavy financial consequences, and so on. . . . [I]n countless cases, just the intent of objective enforcement of constitutionality was behind the actio popularis. Turning to the constitutional court became a special channel of direct democracy, and for the influence of the citizenry upon legislation. This possibility, and the frequent effect of such actions, the invalidation of laws (even laws taking force not long previously), the coverage of these events in the press, and the cases when the court refused the challenge, all constituted a unique learning process of constitutionalism for the citizens.225

The Hungarian constitutional court delivered a number of high profile and constitutionally significant rulings as a result of petitions submitted through the actio popularis procedure. For example, it famously declared the death penalty unconstitutional following a request for abstract review of the pertinent provisions of Hungary’s criminal legislation filed by an individual on behalf of the League against Capital Punishment.226 Citizens also successfully made use of the procedure to contest the validity of an austerity package that sought to significantly curtail social security benefits,227 and the court further struck down rules prescribing personal identification numbers available for unlimited use, which was questioned by an individual on the ground that it impinged on the right to data protection.228 A similar fate befell legislation permitting the dismissal of civil servants without justification, which was referred to the constitutional court for abstract review by several trade unions and NGOs.229 It should be clear that the actio popularis made an important and positive contribution to the development of the Hungarian constitutional order and provided the Alkotmánybíróság 222 H Schwartz, The Struggle for Constitutional Justice in Post-Communist Europe (Chicago, University of Chicago Press, 2000) 81. 223 Brunner, ‘Structure and Proceedings of the Hungarian Constitutional Judiciary’ (n 80) 96. 224 ibid. 225 L Sólyom, ‘The Role of Constitutional Courts in the Transition to Democracy: With Special Reference to Hungary’ (2003) 18 International Sociology 133, 151–52. 226 Decision 23/1990 of 31 October, On capital punishment. 227 Decision 43/1995 of 30 June 1995. The austerity package was known as the ‘Bokros package’, after the name of the finance minister at the time. 228 Decision 15/1991 of 13 April 1991, On the use of personal data and the personal identification number. 229 Decision 29/2011 of 7 April 2011. Parliament responded by amending the rules to require an explanation of the reasons for dismissal, which must be shown to be realistic and lawful. At the same time, however, the new legislation recognises that loss of trust, unworthiness or budget cuts etc are justifiable reasons for the involuntary termination of employment.

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with the opportunity to rule on the validity of many statutes, thereby enabling it to perform its function as an effective check on the legislature. At the same time, the procedure generated a heavy workload for the court, which at times crippled its ability to provide constitutional justice in a timely fashion. To counteract this situation, there were calls to restrict the right of individuals to ask for abstract review of legal provisions, with the constitutional court itself also advocating the introduction of rules on locus standi.230 We saw earlier that the new Hungarian constitutional system no longer allows private individuals to bring abstract constitutionality challenges. This does not mean, however, that citizens are today denied access to the Alkotmánybíróság: they may still lodge a constitutional complaint alleging that the legislature or the ordinary judges have breached their fundamental rights.231 Furthermore, the Commissioner for Fundamental Rights has been granted standing to initiate abstract review in order to compensate for the abolition of the actio popularis,232 and individuals can call upon this official to refer legislation for constitutional scrutiny on their behalf.233 ii. Preliminary References The preliminary reference procedure is, aside from abstract constitutionality challenges, the second method by which constitutional courts check the constitutionality of particular legal provisions and ensure that the legislature does not cross the boundaries delineated in the constitution. Ordinary judges may avail themselves of this procedure if they are unsure about the constitutionality of a statute that they must apply in deciding a legal dispute between two parties. When faced with such misgivings, the ordinary judge orders a stay of proceedings and refers the issue to the constitutional court for determination in view of the latter’s monopoly to rule on the validity of legislation. Next, the constitutional court delivers a so-called preliminary ruling, either upholding the pertinent legal provisions or conversely declaring that they are indeed in breach of the constitution and should accordingly be struck down.234 It is then for the referring judge to decide the case before it in accordance with the constitutional court’s ruling. The preliminary reference procedure is different in two respects when compared with abstract constitutionality challenges. The first concerns the type and timing of review. We have just seen that the former procedure allows the constitutional court to examine the validity of legal norms in the abstract. In contrast, a quintessential feature of the latter procedural gateway is that the question of a statute’s constitutionality is raised in the context 230 Brunner, ‘Structure and Proceedings of the Hungarian Constitutional Judiciary’ (n 80). It should be noted that the Hungarian constitutional designers (when deciding on the text of the constitution) and the Hungarian Parliament (when debating Act XXXIII of 1989 on the Constitutional Court) refrained from outlining admissibility criteria that individuals should meet before they could be accorded standing. The Hungarian court was thereby denied much flexibility in deciding how generous access should be, as it otherwise could have exercised some control over the size of its docket through the interpretation given to admissibility criteria stipulated in the constitution or primary legislation. 231 Hungarian Fundamental Law, Art 24(2)(c) and (d); Act CLI of 2011 on the Constitutional Court, Arts 26 and 27. See in more detail section III-B below. 232 See Venice Commission, Opinion 621/2011 on the New Constitution of Hungary (CDL-AD (2012)009), Venice, 17–18 June 2011), 12. 233 Hungarian Fundamental Law, Art 24(2)(e). They could similarly try to convince sufficient numbers of MPs to bring an abstract constitutionality challenge. 234 We shall see in ch 6 that constitutional courts can also adopt decisions that are neither a simple declaration of unconstitutionality nor a full endorsement of the statute’s conformity with the constitution, but somewhere in-between.

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of an actual case or controversy. The court can therefore be said to engage in concrete review of legislation when it delivers preliminary rulings.235 Relatedly, whereas constitutional courts may review statutes in the abstract either before or after they are promulgated, the exercise of concrete review powers always takes place after legal rules have entered into force, as the precondition for review is the existence of reservations about their application in a specific controversy on constitutional grounds. The second difference is relational in nature. Abstract constitutionality challenges are commonly brought by public institutions – in particular a certain number of lawmakers – and generally speaking, we can say that this is a politically charged procedure that can take its toll on the relationship between the constitutional court and the legislature. Under the preliminary reference procedure, conversely, regular judges and individuals play a significant role. The regular judges are the constitutional court’s interlocutors in the context of this procedure; and to a lesser or greater degree, they also act as gatekeepers in deciding when to raise preliminary questions and provide the constitutional court with the opportunity to exercise its mandate of keeping the legislature in check. Private individuals (and their lawyers) can perform an important signalling function by pointing out that the applicable legal provisions have constitutional defects and encouraging the competent ordinary court hearing their case to send a preliminary question. Virtually all countries within the European Union that have set up a separate constitutional court have also established a preliminary reference procedure, that is to say: Austria,236 Belgium,237 Bulgaria,238 the Czech Republic,239 France,240 Germany,241 Hungary,242 Italy,243 Latvia,244 Lithuania,245 Luxembourg,246 Poland,247 Romania,248 Slovakia,249 Slovenia250 and Spain.251 It will be remembered that the Nordic countries (Sweden, Finland and Denmark) have adopted a system of diffuse constitutional control, which entails that each and every court is competent to decide constitutional issues and review statutes for their constitutionality. A preliminary reference procedure would be anathema to the basic premise of the decentralised model of constitutional adjudication. In view of the many similarities in the design of preliminary reference procedure in those countries that have introduced this method of referring issues to the constitutional 235 But note Sadurski, Rights before Courts (n 94) 65–66, who observes that constitutional courts often consider preliminary questions without really engaging with the factual circumstances of the case before the referring court, so that the examination conducted by the constitutional court may still be relatively abstract in nature. 236 Austrian constitution, Arts 89(2), 139(1), 139(a) and 140(1). 237 Belgian constitution, Art 142(3). 238 Bulgarian constitution, Art 150(2). In Bulgaria, only the supreme court of cassation and the supreme administrative court are given the power to refer preliminary questions concerning a statute’s constitutionality to the constitutional court. 239 Czech constitution, Art 95(2). 240 French constitution, Art 61-1. 241 German Basic Law, Art 100. 242 Hungarian Fundamental Law, Art 24(2)(b); Act CLI of 2011, Art 25. Before 1 January 2012, the competence of the Hungarian constitutional court to receive preliminary references was laid down in Act XXXII of 1989 on the constitutional court, Art 38. 243 Constitutional Law no 1/1948, Art 1. 244 Latvian Constitutional Court Law, Art 17(1)(9). 245 Lithuanian constitution, Art 106. 246 Luxembourg constitution, Art 95ter(2). 247 Polish constitution, Art 193. 248 Romanian constitution, Art 146(d). 249 Slovak constitution, Art 130(1)(d). 250 Slovenian Constitutional Court Act, Art 23. 251 Spanish constitution, Art 163.

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court, little will be gained by setting out the rules in place in each of these European states. To illustrate the workings of this procedure and its main characteristics as compared to other gateways to obtain access to the constitutional court, the Belgian and French systems will be used as examples. In doing so, we will consider three questions. First, which judicial bodies are empowered to send preliminary questions? Secondly, what kind of issues may be submitted to the constitutional court through this procedure? Third, when is resort to the preliminary reference procedure indicated? Belgium Article 142 of the Belgian constitution accords ‘any court’ the power to request preliminary rulings.252 The Cour constitutionnelle looks at various factors in determining whether a judicial body qualifies as a ‘court’ within the meaning of that provision, including its composition, the way in which its members are appointed, its independence vis-à-vis the executive, its competences, whether it reaches its decisions following an inter partes procedure, and whether its decisions can be appealed within the regular court system.253 In addition, the Cour constitutionnelle will take into account what, if anything, has been said about the court-like character of the body making the reference during the course of the debates in Parliament on the law establishing the body. Ordinary Belgian courts can seek the assistance of the Cour constitutionnelle when they are uncertain about the validity of a legal norm for one of two reasons. They can either believe that the legislature responsible for the objectionable provisions has acted ultra vires by usurping lawmaking powers that the constitution has allocated to a different level of government254 or consider that the pertinent legal rules are incompatible with fundamental rights and liberties.255 It is however not possible to raise preliminary questions regarding the constitutionality of statutes ratifying European treaties or (one of the protocols annexed to) the European Convention on Human Rights.256 Regular judges are further prevented from sending references which ask for a clarification of the correct interpretation of the constitution. As a general rule, regular Belgian judges are obliged to consult the Cour constitutionnelle whenever questions arise concerning the validity of legal norms. The parties before the judge may have cast doubt on the constitutionality of the pertinent rules, inducing her to make a reference. Alternatively, the judge herself may be assailed by doubts as to the com252 Requests for preliminary rulings must be complete, that is to say, they must include details of the contested norm, the constitutional provisions allegedly violated and, if the regular court believes that the principle of equality has been breached, the category of persons discriminated against. If these requirements are complied with, the Cour constitutionnelle will not entertain requests by the parties to the proceedings before the referring judge to amend or change the content of the request for a preliminary ruling. See eg judgment no 111/2000 of 8 November 2000 at B.3–B.5. 253 See in particular judgment no 65/96 of 13 November 1996 at B.2, with the Cour constitutionnelle holding that the Regular Appeals Committee for Refugees (Vaste Beroepscommissie voor vluchtingen) was a court within the meaning of Art 142 of the constitution and that it was therefore competent to answer the preliminary question referred. 254 As a federal state, Belgium has distributed legislative competences among different echelons (ie, the central level, the communities and the regions) and each level has its own legislature competent to exercise the lawmaking powers accorded to it by the constitution. 255 Special Act on the Constitutional Court, Art 26(1). 256 ibid, Art 26(1bis). This exception was introduced in the wake of judgment no 76/94 of 18 October 1994 concerning the Maastricht Treaty (on which, see the text to nn 218–220), in which the Cour constitutionnelle declared a petition by two individuals to engage in abstract review of the constitutionality of the statute approving this treaty inadmissible. The idea was to remove all possibilities for a posteriori review of the constitutionality of statutes ratifying international agreements at the behest of individuals.

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patibility of the provisions with the constitution and raise this issue of her own volition.257 There are, however, some exceptions to the duty to request preliminary rulings.258 Ordinary Belgian courts are not required to refer constitutional questions when the dispute brought before them is inadmissible for procedural reasons unrelated to the legal provisions alleged to be unconstitutional; when the Cour constitutionnelle has already ruled on the issue;259 or when the dispute concerns summary proceedings or deals with provisional custody.260 Furthermore, courts whose decisions can be appealed may also refrain from making a reference when they are of the opinion that a preliminary ruling by the Cour constitutionnelle is not essential to decide the case before them or because it is obvious that the pertinent legal provisions are compatible with the constitution. The two courts at the apex of the regular judiciary – the Cour de cassation and the Conseil d’État – are thus not able to escape the duty to raise preliminary questions when either of these situations presents itself. According to the Cour de cassation, this distinction evinces ‘a certain distrust as regards the two other highest courts in the law that were feared to only reluctantly have recourse to the medium of preliminary references’.261 The parties to a dispute are not able to appeal decisions by the ordinary courts seeking a reference from the Cour de constitutionnelle – or those refusing to make a reference – so as to prevent dilatory litigation.262 France We have seen that the French Conseil constitutionnel can verify the constitutionality of statutes and other legal norms a priori, that is to say before they are promulgated. Until some years ago, there was no other way to invoke its jurisdiction for the purpose of keeping the 257 See eg E Krings, Propos sur les effets des arrêts rendus par la Cour d’arbitrage, discours prononcé à l’audience solennelle de rentrée de la Cour de cassation, le 2 septembre 1985 (Brussels, Bruylant, 1985) no 58; P Vandernoot and B Paty, ‘L’accès au juge constitutionnel: rapport de la Cour d’arbitrage de Belgique’ in L’accès au juge constitutionnel (Libreville, Gabon, 2000) 49; H Simonart, La Cour d’arbitrage: une étape dans le contrôle de la constitutionalité de la loi (Brussels, Story-Scientia, 1988) 245; R Andersen, P Nihoul and S Depre, ‘La Cour d’arbitrage et le Conseil d’État’ in F Delperee (ed), Regards croisés sur la Cour d’arbitrage (Brussels, Bruylant, 1995) 170; R Andersen and J Van Compernolle, ‘La procédure devant la Cour d’arbitrage’ in F Delperee (ed), La Cour d’arbitrage: actualité et perspectives (Brussels, Bruylant, 1988) 103–04; J Velaers, Van Arbitragehof tot grondwettelijk Hof (Antwerp, Maklu, 1990) 375–77; F Tulkens, ‘Désistement et moyen d’office dans le contentieux constitutionnel’ [1996] Revue belge de droit constitutionnel 36; A Rasson-Roland, ‘La question préjudicielle: le recours des particuliers devant le juge constitutionnel’ in F Delperee and P Foucher (eds), La saisine du juge constitutionnel: aspects de droit comparé (Brussels, Bruylant, 1998) 48; C Horevoets and P Boucquey, Les questions préjudicielles à la Cour d’arbitrage (Brussels, Bruylant, 2001) 34–38. 258 Special Act on the Constitutional Court, Art 26(2) and (3). 259 This is known as the acte éclairé exception, which applies regardless of whether the Cour constitutionnelle had already decided the constitutional issue in an earlier preliminary ruling or in a judgment following an abstract constitutionality challenge. Before 2003, only courts not deciding at final instance (in other words, all courts except the Cour de cassation and the Conseil d’État) could rely on this exception. 260 This is so unless the ordinary courts harbour serious doubts about the constitutionality of the statute to be applied and the issue has not been referred to the constitutional court through another preliminary reference or as a result of the initiation of the procedure for abstract constitutional review. See further C Horevoets, ‘Les questions préjudicielles à la cour d’arbitrage dans le projet de réforme de la loi spéciale du 6 janvier 1989’ [2000] Revue belge de droit constitutionnel 199. 261 1999 Annual Report of the Cour de Cassation at 107. See also M Van Damme, ‘Het stellen van prejudiciële vragen aan het Arbitragehof door het Hof van Cassatie en de Raad van State’ in I Verougstraete et al (eds), Imperat lex: liber amicorum Pierre Marchal (Brussels, Larcier, 2003), who notes that reliance was also placed on Art 267 TFEU in the course of the parliamentary debate, with that provision also drawing a distinction between courts against whose decisions a judicial remedy is available and those whose decisions cannot be appealed. 262 Special Act on the Constitutional Court, Art 29. If the regular courts decide not to accede to the parties’ request to make a reference, they must give reasons for their decision. In the context of an appeal against the final decision on the merits of the case, the parties are able to challenge the refusal to request a preliminary ruling.

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legislature in check. In July 2008, the constitution was substantially revised and this resulted, amongst other things, in the introduction of a form of a posteriori review. More particularly, ordinary judges are now empowered to request ‘priority preliminary rulings’ from the Conseil constitutionnel on the validity of statutory provisions that they must apply in the case before them.263 Following the adoption of the necessary implementing legislation,264 the French preliminary reference procedure has been in force since 1 March 2010. Requests for a preliminary ruling can be made during the course of proceedings before any French court that is ‘under the supervisory jurisdiction of the Conseil d’État or the Cour de cassation’.265 This specification serves to exclude the Cour d’assises,266 the Tribunal des conflits267 and the higher court of arbitration.268 Unlike the Belgian version of this procedure, references can only be made following a request to do so by one of the parties: the ordinary courts are prevented from raising constitutional issues of their own motion.269 Preliminary references can be made concerning the validity of statutory provisions, that is to say: statutes, organic laws (officially known as ‘institutional acts’) and ordinances ratified by Parliament.270 The constitutionality of decrees, orders adopted by the government or individual decisions cannot be queried through this procedure.271 It should further be pointed out that the Conseil constitutionnel can only determine whether the objectionable rules impinge upon the fundamental rights and freedoms guaranteed by the constitution (or more accurately, by the bloc de constitutionnalité) in the context of the preliminary reference procedure.272 No other grounds of review can be adduced by the referring court or relied on by the Conseil in its examination. This limitation stems from the rationale behind the 2008 amendment, which was not primarily concerned with ensuring that the legislature respects its constitutional limits; rather it was inspired by the wish to give citizens indirect access to the Conseil constitutionnel to ensure the better protection of their fundamental rights.273 263 French constitution, Art 61-1, inserted by Constitutional Act No 2008-724 of 23 July 2008 modernising the Institutions of the Fifth Republic. 264 Institutional Act No 2009-1523. Before its promulgation, the prime minister referred this act to the Conseil constitutionnel for an assessment of its constitutionality. The act was held to be compatible with the French constitution: Décision no 2009-595 DC of 3 December 2009. 265 Ordinance no 58-1067 on the Constitutional Council (as amended), s 23-1. 266 ibid. 267 The tribunal des conflicts decides jurisdictional conflicts between the ordinary courts (responsible for deciding civil and criminal cases) and the administrative courts (in charge of adjudicating disputes between individuals and the State). 268 The higher court of arbitration was established by Act no 50-205 of 11 February 1950 pertaining to collective labour agreements and procedures for settling collective labour disputes. It has a very modest caseload. 269 Ordinance no 58-1067 on the Constitutional Council (as amended), ss 23-1 and 23-5. This limitation was upheld by the Conseil constitutionnel in Décision no 2009-595 DC of 3 December 2009, in light of the wording of Art 61-1 of the constitution, which states, ‘during proceedings in progress before a court of law, it is claimed . . .’ (emphasis added). This also explains why the French speak not about preliminary questions, but about ‘applications’ for preliminary rulings. 270 References may also concern laws of the special French collectivity New Caledonia. 271 Judicial protection against these legal rules is provided by the administrative courts. The Conseil d’État stands at the apex of the order of administrative courts. 272 That is to say, the rights and freedoms laid down in the 1958 French constitution, the 1789 Declaration of the Rights of Man and the Citizen, the fundamental principles recognised by the laws of the republic, and the 2004 charter for the environment. The meaning and composition of the bloc de constitutionnalité are discussed in more detail in ch 5, section V. 273 See the Report of the comité de réflexion et de proposition sur la modernisation et le rééquilibrage des institutions de la Ve République, Une Ve République plus démocratique, ch III and the decree of then president Sarkozy of 18 July establishing this committee and setting out its mandate.

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A further noticeable feature of the French system is ‘filtrage’ (filtering), which prevents lower courts from directly seeking preliminary rulings. If the issue of a statute’s possible unconstitutionality is raised before such courts, they must examine whether the parties’ request to refer the matter to the Conseil constitutionnel is admissible and meets the conditions for referral. To be admissible, the application to send a preliminary reference must be made in writing in a separate document and explain why the litigating party believes that the case gives rise to a question concerning the validity of a piece of legislation. To qualify for referral, three cumulative conditions must be satisfied: the objectionable provision must be applicable to the case or constitute the grounds for the proceedings; the Conseil constitutionnel must not previously have declared the statutory provision to be unconstitutional; 274 and the constitutional issue must be of a serious nature.275 If these conditions are met, the lower court transmits the question to either the Cour de cassation (if it is a civil or criminal court) or to the Conseil d’État (if it is an administrative court). These courts stand at the apex of the ordinary judiciary and will carry out an independent examination of the propriety of referring the matter to the Conseil constitutionnel with the help of three criteria. The first and second criteria are identical to those governing the transmission of requests for a preliminary ruling from the lower courts to the Cour de cassation or the Conseil d’État. The third criterion is slightly different: the constitutional issue must be either ‘of a serious nature’ or ‘new’.276 The latter term is understood by the Conseil constitutionnel to denote that it has not yet been in a position to decide on the meaning of the constitutional parameters allegedly infringed by the pertinent statutory provisions or, alternatively, that the legislation whose validity is being questioned has given rise to a number of requests to make a reference. As such, the French system in effect has a ‘mécanisme de double filtre’.277 Two reasons have been put forward to justify this dual filter: first, the need to avoid the influx of new cases with a dilatory character that could swamp the Conseil constitutionnel and paralyse the functioning of the judicial system;278 and secondly, the double filter accords due respect to the position of the two supreme court and their task of ensuring a consistent body of case law. As explained by the vice-president of Conseil d’État: Le filtre . . . permet d’associer très en amont le Conseil d’État et la Cour [de cassation] a l’élaboration de la jurisprudence constitutionnelle. Les deux cour suprêmes trancheront la question préjudicielle en l’écartant lorsqu’elle ne leur paraitra pas présenter de difficulté sérieuse. Dans le cas contraire, la question sera renvoyée au Conseil constitutionnel. L’arrêt de renvoi permettra d’éclairer les termes de la question posée.279 274 An exception applies when there has been a change of circumstances, in that either the grounds of review or factual or legal conditions affecting the scope of the contested provision have undergone change in the meantime: Décision no 2009-595 DC of 3 December 2009, para 13. This criterion reflects the authority accorded to rulings delivered by the Conseil constitutionnel, in line with the French constitution, Art 62. 275 Ordinance no 58-1067 on the Constitutional Council (as amended), s 23-2. 276 ibid, s 23-4. 277 It is possible for the parties to make their request for a preliminary reference for the first time before the Cour de cassation or the Conseil d’État: Ordinance no 58-1067 on the Constitutional Council (as amended), s 23-5. 278 See eg J-L Warsmann, Rapport d’information no 2838 sur l’evaluation de la loi organique no 2009-1523 du 10 decembre 2009 relative a l’application de l’article 61-1 de la Constitution, www.assemblee-nationale.fr/13/rap-info/ i2838.asp. Warsmann also observes that the new French system follows the ‘méthode pratiquée en Autriche, terre d’élection de la justice constitutionnelle’ [translation: ‘method used in Austria, land of constitutional justice’]. 279 J-M Sauvé, ‘L’analyse par le Conseil d’État du dispositif de question préjudicielle de constitutionnalité institué à l’article 61-1 de la constitution’, reported in Warsmann, Rapport d’information no 2838 (n 278) 438–40. [Translation: ‘The filter allows the participation, from early on, of the Conseil d’État and the Cour de cassation in the development of constitutional jurisprudence. The two highest courts will settle preliminary questions by

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This approach is readily understandable when one considers that the French court system had for decades operated a strict separation of jurisdictional tasks and responsibilities, with the Conseil constitutionnel having no opportunity to review legislative provisions in light of the constitution after they had been promulgated. To be sure, the Cour de cassation and the Conseil d’État were similarly prevented from examining the constitutionality of laws that had entered into force. However, they could (and did) measure statutes at final instance against international treaties and, in the event of a conflict, refrain from applying the incompatible national provisions to the dispute before them.280 Their traditional hegemony as regards a posteriori review would have to change in the wake of the introduction of a system of preliminary rulings that forges an organic link between the Conseil constitutionnel and the regular French judiciary and allows the former to rule on the validity of duly promulgated legislation. By according the Cour de cassation and the Conseil d’État the role of filter, the constitutional legislature has sought to accommodate competence anxiety on the part of the two highest regular courts and ease them into a new jurisdictional equilibrium. There are some further points of note regarding the French preliminary reference procedure. To start with, there are strict deadlines that must be complied with. The Cour de cassation and the Conseil d’État must decide within three months whether to transmit the constitutional question referred by a lower court to the Conseil constitutionnel. 281 The latter must itself deliver preliminary rulings within three months of receiving the reference.282 Furthermore, the French procedure is officially known as the ‘question prioritaire de constitutionnalité’ (QPC). The adjective ‘priority’ connotes, first, that the regular judge confronted with a constitutional issue should address this point without delay,283 and secondly, that if the parties before the judge contend that the relevant statutory provision infringes both fundamental rights protected by the constitution and rules of international law, the check for constitutional compliance takes precedence.284 Finally, as in Belgium, it is not possible to challenge the refusal by a lower court to transmit the application for a preliminary reference to the Cour de cassation or the Conseil d’État as such; this can only be done incidentally when lodging an appeal against the decision on the merits of the case.285

rejecting those which do not appear to them to pose serious difficulties. Otherwise, the question will be referred to the Conseil constitutionnel. The decision transmitting the question allows for the clarification of the content of the question posed.’] 280 This is known as ‘contrôle de conventionnalité’ and includes review of French acts of parliament in the light of EU law. The Cour de cassation and the Conseil d’État accepted this jurisdiction in Decision of 24 May 1975, Administration des Douanes v Société Cafés Jacques Vabre, D, 1975, 497 and Ass 20 October 1989 (Nicolo) respectively. The distinction between contrôle de conventionnalité and contrôle de constitutionnalité is further discussed in ch 5, section V. 281 Ordinance no 58-1067 on the Constitutional Council (as amended), s 23-4. 282 ibid, s 23-10. 283 This phrase should be interpreted to mean ‘within the shortest possible time’ in light of earlier case law of the Conseil constitutionnel, see Décision no 2003-484 DC of 20 November 2003. 284 Ordinance no 58-1067 on the Constitutional Council (as amended), ss 23-2 and 23-5. The second dimension of the notion of ‘priority’ has given rise to questions about the compatibility of the French preliminary reference procedure with EU law, which were addressed by the Court of Justice in Case C-189/10 Proceedings against Aziz Melki and Sélim Abdeli [2010] ECR I-5667. This judgment and its wider context are discussed in ch 7, section V-C. 285 Ordinance no 58-1067 on the Constitutional Council (as amended), s 23-2.

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General Remarks In those European countries that have established preliminary reference procedures, a typical feature is that they adopt a generous approach in determining which judicial bodies are authorised to make such references. Whether the referring body is indeed competent to consult the constitutional court is not commonly a matter for discussion and few references are declared inadmissible on this ground. We have further seen that preliminary references can only be made concerning the possible invalidity of statutory provisions: it is not possible for the regular courts to ask for clarifications concerning the proper interpretation of the constitution (for instance to assist them in deciding on the constitutionality of legal rules below the rank of act of parliament). At the same time, for the constitutional court to be able to examine whether legislative provisions comport with the constitution, it must also establish the meaning to be given to the constitutional provisions that it will use as standards of review. As such, while preliminary rulings strictly speaking contain pronouncements as to whether a particular piece of legislation passes constitutional muster, they may indirectly also provide guidance as regards issues of constitutional interpretation. There are also some differences between countries when it comes to the design of the preliminary reference procedure. A first difference concerns the grounds of review. In the majority of countries, including Belgium, the constitutional court can assess the validity of the objectionable provisions in the light of the same constitutional provisions and principles that are also available as grounds of review when deciding abstract constitutionality challenges. In contrast, the French Conseil constitutionnel is limited in this regard: it may only check legislation referred for review for conformity with fundamental rights and liberties to the exclusion of other components of the bloc de constitutionnalité that can be used when it exercises its a priori abstract review powers. A second difference between France and Belgium has to do with the position of the supreme courts that stand at the apex of the regular court structure. The designers of the Belgian procedural framework were concerned that the Cour de cassation and the Conseil d’État would refuse to make frequent references to the Cour constitutionnelle. This is why these two courts have fewer exceptions at their disposal to legitimately refrain from referring constitutional questions than Belgian courts whose decisions are subject to appeal. Conversely, in France, the two highest ordinary courts are conceived as the Conseil constitutionnel’s loyal partners: they should protect the latter from being inundated with references raising constitutional issues of minor importance and, additionally, provide guidance by clarifying what is at stake in those requests for a preliminary ruling that are considered suitable for transmission to the Conseil constitutionnel. The danger is that this approach is exactly what Belgium has sought to avoid: supreme courts that transmit only an infinitesimal number of questions.286 Experiences to date with the French preliminary reference procedure, however, seem to indicate that this risk has so far not materialised.287 More generally, in every system that has established a preliminary reference procedure, a balance must be struck between ensuring that the regular courts play the game and devising techniques to cope with the large amount of work that this procedure can generate for 286 ibid, s 23-7 provides that in the event of a failure by either of the supreme courts to decide whether to refer the request for the preliminary ruling, the request will automatically be forwarded to the Conseil constitutionnel. 287 Although the Cour de cassation has had some difficulty coming to terms with the new status quo, evident in, for example, its attempt to have the Court of Justice declare that the French preliminary reference procedure was incompatible with fundamental tenets of the EU legal order. For more detail, see ch 7, section V-C.

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constitutional courts. In other words, a filter of some sort is required. There are various coping mechanisms available for this purpose, which may also be combined for greater effect. For one, it is possible to introduce exceptions to the general duty to refer issues concerning the validity of legislation to the constitutional court for determination, as has been done for example in Belgium. Another option is to limit the number of regular judges that are empowered to raise preliminary questions directly with the constitutional court, as has happened in France. Alternatively, there may be threshold conditions that must be met before the constitutional court will accept requests for a preliminary ruling. These can, for instance, relate to the type of constitutional issue, whereby only novel or sufficiently important questions will be declared admissible, similar to the conditions stipulated by the French framework governing the question prioritaire de constitutionnalité. The constitutional court can also demand that regular judges first attempt to construe the pertinent legal provisions in a constitution-conform manner and only accept references in those situations where this has not been possible. This technique is used by constitutional courts in Germany, Spain, the Czech Republic and Italy, amongst other countries, and is further discussed in chapter seven.288 Depending on which coping mechanism is chosen and the design thereof, the constitutional court to a greater or lesser extent devolves part of its responsibility for upholding the constitution to the regular judiciary. iii. Abstract Interpretation of the Constitution A few countries have given their constitutional court jurisdiction to provide authoritative interpretations of the constitution and, in that way, enforce the limits set by this foundational text vis-à-vis other State institutions, notably the legislature. To be sure, whenever courts are asked to scrutinise the constitutionality of parliamentary legislation or other legal measures, they have to determine the meaning of the relevant constitutional provisions and principles that serve as the yardstick in deciding on the constitutionality or otherwise of the act submitted for review. This is not, however, what we are concerned with here. The defining feature of the competence to provide legally binding interpretations of the constitutional text denotes that the constitutional court can be requested to establish the meaning of the bare text of the constitution, with no connection to a particular legal controversy. This type of procedure289 exists in Hungary, Bulgaria290 and Slovakia.291 To illustrate its main characteristics, it is useful to consider the Hungarian system. The Alkotmánybíróság can receive requests to provide an abstract interpretation of the Fundamental Law from Parliament, one of its standing committees, the president and the 288 This chapter will also address the issue of the concurrence of preliminary reference procedures, which can present itself in countries that have adopted the centralised model of constitutional adjudication when a lower national court believes that statutory provisions may be unconstitutional – which typically means that it should make a preliminary reference to the constitutional court asking about the validity of these clauses – and are also quite possibly incompatible with provisions of EU law – which means that it can also request a preliminary ruling on the correct interpretation of the rules of EU law potentially infringed from the Court of Justice of the European Union. 289 The Polish constitutional tribunal could perform a slightly different task between 1989 and 1997, in that it could be asked to provide an authoritative interpretation of ordinary legislative provisions. For more detail, see Sadurski, Rights before Courts (n 94) 12. 290 Bulgarian constitution, Art 149(1)(1); Constitutional Court Act, Art 12(1)(1). Interestingly, this power is at the top of the catalogue of competences given to the constitutional court in the constitution. 291 Slovak constitution, Art 128; Act on the Organisation of the Constitutional Court of the Slovak Republic, on the Proceedings before the Constitutional Court and the status of its Judges, §§ 45–48. The Slovak constitutional court can give generally binding interpretations of the constitution and of constitutional laws.

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government.292 To date, the procedure – which was already in existence under the pre-2012 constitutional regime – has been used sporadically. However, on those occasions that it has been initiated, the decisions delivered by the court appear to have been important from a constitutional perspective. For instance, through this procedure, the Alkotmánybíróság declared who should serve as provisional head of state until the first presidential elections after transition were held;293 found that Parliament could not be dissolved by popular referendum;294 and clarified that while the State was under an obligation to guarantee minimum conditions of subsistence, individuals could not generally derive a subjective right to housing from the right to social security enshrined in the constitution.295 Sadurski has suggested that the reason for the establishment of a procedure for abstract constitutional interpretations was linked to the country’s transition to democracy: It seems natural that this function of interpreting the Constitution played a relatively important role in Hungary, where the choice was taken to heavily amend the old Constitution instead of creating a new one, thus perhaps giving rise to many doubts and uncertainties in the initial posttransition period, particularly in relation to the organisation of government, the legislative process etc.296

Constitutional practice appears to corroborate this view: after a small flurry of interpretation rulings in the first years following Hungary’s transition to democracy,297 their number has progressively declined as that moment receded into history. It remains to be seen whether the entry into force of Hungary’s new Fundamental Law on 1 January 2012 will result in more petitions for abstract interpretation being submitted to the Alkotmánybíróság. The existence of this procedure is not without risk for constitutional courts. In particular, the political branches of government may try to use the procedure to legitimise otherwise controversial issues and policies included in their political agenda before taking concrete steps through the introduction of new legislative proposals. An example of this risk can be found in judgment 31/1990 of the Alkotmánybíróság.298 The Hungarian minister of finance wished to introduce new legislation raising the interest rate for guaranteed longterm housing loans. He invoked the constitutional court’s jurisdiction for an interpretation of the right to social protection in abstracto before even crafting the bill, so as to pre-empt later challenges to the law for allegedly breaching this fundamental right. Aware of what the minister was attempting, the constitutional court refused the petition and stated that the admissibility of a request was contingent on interpretation of the constitution being necessary for the solution of a real and specific constitutional problem.299 It explained that a more generous reading of the interpretation jurisdiction would 292 Act CLI of 2011 on the Constitutional Court, Art 38. Under the pre-2012 procedural arrangements, the head of state’s audit office, the chief justice of the supreme court and the attorney-general could also submit requests for abstract constitutional interpretations: Act XXXII of 1989 on the constitutional court, Art 21(6) read together with Art 1(g). 293 Decision 7/1990 of 23 October 1990. 294 Decision 21/1993 of 22 January 1993. 295 Decision 42/2000 of 8 November 2000. 296 Sadurski, Rights before Courts (n 94) 11. 297 In addition to the decisions mentioned in nn 283–85, consider eg Decision 1/1990 of 12 February 1990; Decision 4/1990 of 4 March 1990; Decision 48/1991 of 26 October 1991; Decision 8/1991 of 30 January 1992; Decision 36/1992 of 10 June 1992. 298 Decision 31/1990 of 18 December. 299 The first time a public institution sought to use this procedure in a pre-emptive manner, the constitutional court accepted the petition, apparently because rejecting the request could have brought down the government: see Brunner, ‘Structure and Proceedings of the Hungarian Constitutional Judiciary’ (n 80) 80.

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inevitably result in the Constitutional Court assuming the responsibility of the legislative, and even of the executive, powers and thereby some sort of governance by the Constitutional Court would be created which is in utter contradiction with the principles of state organization as specified in the Constitution.

In addition, the Alkotmánybíróság declared that it would only accept requests for abstract interpretation that are linked to constitutional issues that derive directly from the text of the constitution, without the interposition of other legal norms. By circumscribing its power in this way, the court presumably sought to minimise the risk of jurisdictional competition with the ordinary judiciary, bearing in mind that statutory interpretation is normally considered the latter’s prerogative. The Alkotmánybíróság’s case law has now been codified in the organic law that contains detailed rules relating to its composition and portfolio of responsibilities.300

B. Protecting the Fundamental Rights of Individuals in Specific Cases A second task that is performed by several European constitutional courts, besides their responsibility for verifying the constitutionality of statutes and thereby checking the legislature, sees them protecting the fundamental rights of individuals guaranteed by the constitution in the context of a specific case. Those countries that have empowered their constitutional court to exercise this function have established a so-called constitutional complaint procedure for this purpose. Private individuals are able to initiate this procedure directly before the constitutional court in order to vindicate their fundamental rights that they allege have been violated by the State. In the countries systematically studied in this book, constitutional complaint procedures can be found in Germany, the Czech Republic, Spain, Hungary and Poland. Their design and functioning are examined below. Other countries within the European Union that allow individuals to file constitutional complaints are Austria,301 Estonia,302 Slovakia303 and Slovenia.304 It should be pointed out that constitutional courts can also champion fundamental rights in the context of other procedures. Think, for instance, of preliminary references wherein the referring judge expresses doubts about the compatibility of a piece of legisla300 Act CLI of 2011 on the Constitutional Court, Art 38(1) which reads in its relevant part: ‘the Constitutional Court shall provide an interpretation of the provisions of the Fundamental Law regarding a certain constitutional issue, provided that the interpretation can be directly deduced from the Fundamental Law’ (emphasis added). 301 Austrian constitution, Art 144(1); Constitutional Court Act 1953, §§ 82–88. Constitutional complaints can be lodged against decrees (Bescheide) or against regulations that are alleged to have infringed constitutionally guaranteed rights. 302 Constitutional Review Court Procedure Act, Art 19. 303 Slovak constitution, Art 127; Act on the Organisation of the Constitutional Court of the Slovak Republic, on the Proceedings before the Constitutional Court and the status of its Judges, §§ 49–56. Complainants may assert the infringement of constitutionally protected rights as well as rights guaranteed by international treaties that have been duly ratified and promulgated. Individuals may also complain about failures to act that have allegedly brought about a breach of their constitutional rights; if the constitutional court agrees with the petitioner, it may order the responsible public authority or official to take action. 304 Slovenian Constitution, Art 160; Constitutional Court Act, Arts 50–60. The ombudsman is also entitled to file constitutional complaints in relation to cases that she is dealing with. A further interesting point is that complaints are by law declared to be inadmissible if the violation complained of ‘did not have serious consequences for the complainant’ (which is for instance considered to be the case as regards decisions concerning disputes about trespassing or small-claims disputes).

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tion with one or more constitutionally guaranteed rights. Should the constitutional court conclude that the statute is indeed unconstitutional, its preliminary ruling to that effect will clearly also benefit the fundamental rights of the parties to the dispute, who could very well have requested the judge hearing their case to make the reference. Similarly, public institutions may file abstract constitutionality challenges asserting that the legislative provisions referred for review impinge upon fundamental rights and freedoms. This is particularly likely to happen when the ombudsman or equivalent institution has been granted the right to bring such challenges, as they are often conceived by the constitution as guardians of citizens’ fundamental rights. What distinguishes the constitutional complaint procedure from other gateways to the court is that it is purposely designed to protect constitutionally guaranteed rights and liberties. Also, this procedure is activated by individuals, who are in control both as regards deciding to submit a complaint to the constitutional court and choosing which arguments to put forward in support of their claim that a violation of their fundamental rights has taken place. Through the constitutional complaint procedure, individuals are thus given direct access to the constitutional court, whereas they typically lack the competence to file abstract constitutionality challenges or oblige regular courts to make a reference (although they can try to convince those that have been granted a right of audience with the constitutional court in the context of these procedures to make use of this right and thereby indirectly gain access to the court). Furthermore, as will become clear, constitutional complaints usually allege that fundamental rights infringements committed by the regular judiciary or caused by the administration through incorrect application or interpretation of certain statutory provisions. It is less common for complainants to (be able to) assert that the legislature has violated their fundamental rights by passing a particular piece of legislation. The constitutional complaint procedure is accordingly not so much oriented towards objective constitutionality control of legal norms, but rather serves a remedial function in relation to specific grievances suffered by ordinary people. i. Germany Germany was the first European country to give its constitutional court jurisdiction to receive and decide constitutional complaints (Verfassungsbeschwerde).305 This route to the Bundesverfassungsgericht was originally established by ordinary law. By the 1960s, however, the German population had come to consider the performance of the task of protecting citizens’ fundamental rights as so important that the decision was taken to amend the Basic Law and constitutionalise the complaint procedure. It can today be found in Article 93(1) (4a) of the Basic Law, which reads as follows: The Federal Constitutional Court shall rule: . . . on constitutional complaints, which may be filed by any person alleging that one of his basic rights or one of his rights under paragraph (4) of Article 20 or under Article 33, 38, 101, 103 or 104 has been infringed by public authority.306

The notion ‘public authority’ encompasses all three branches of government. Verfassungs beschwerden can accordingly be lodged against decisions taken by the administration, 305 For an older but very interesting discussion of this procedure, see M Singer, ‘The Constitutional Court of the German Federal Republic: Jurisdiction over Individual Complaints’ (1982) 31 ICLQ 331. 306 See also Law on the Bundesverfassungsgericht, Arts 90–95. Article 91 establishes a special constitutional complaint procedure that can be initiated by certain federated entities against the central government. This is discussed in section III-C(i) below.

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judgments of the ordinary courts and, under conditions, statutes enacted by the legislature. The complainant must assert that there has been a breach of one of the constitutionally guaranteed rights to which Article 93 makes reference. These include the classic fundamental rights and liberties that are enumerated at the beginning of the Basic Law as well as the right to resist persons seeking to abolish the German constitutional order (Art 20); the principle of non-discrimination for employment in the civil service (Art 33); the right to vote (Art 38); the right of access to one’s lawful judge (Art 101); the right to a fair trial (Art 103); and the right to fair treatment of persons in custody (Art 104). The Bundesverfassungsgericht can act as the ultimate champion of these fundamental rights at the behest of ‘any person’, which term includes both natural persons – citizens and foreigners resident in Germany307 – who have full legal capacity308 and legal persons.309 Other admissibility criteria have been elaborated in the case law.310 Complainants must be personally affected and their injury must be present and a direct consequence of the objectionable measure or decision alleged to impinge upon their fundamental rights.311 The upshot is that Verfassungsbeschwerden claiming that a statute is unconstitutional on fundamental rights grounds will only be admissible if the impugned legislation is self-executing and not in need of implementation by the administration. This happens only sporadically312 and complainants usually try to attack laws indirectly, by alleging that an administrative decision or ruling by an ordinary court has failed to accord the necessary respect to their fundamental rights, and incidentally argue that the real problem lies with the legislative provisions that have been applied by the administration or the courts in the specific case.313 As a general rule, it is only possible to invoke the jurisdiction of the Bundesverfassungsgericht after all other remedies have been exhausted without yielding the desired result. There are several exceptions to this basic principle, however. If the case is of ‘general relevance’314 or if continued litigation would result in ‘a serious and unavoidable disadvantage’, the complaint will immediately be accepted.315 It is for the Bundesverfassungsgericht to decide whether the conditions for either of these exceptions to apply have been met.

This includes foreign nationals residing in Germany: BVerfG 35, 382 (1973); BVerfG 49, 168 (1978). BVerfG 1, 87 (1951) Mental Deficiency Case. Yet, the decision declaring that someone lacks legal capacity cannot ‘serve to bar a constitutional complaint directed against such declaration’: BVerfG 10, 302 (1960). 309 BVerfG 3, 359 (1954) Firma L and Company Case; BVerfG 23, 153 (1968) Bank Standing Case; BVerfG 19, 129 (1965). The key notion seems to be whether the complainant is a ‘holder of constitutional rights’: BVerfG 3, 383 (1954). 310 Complaints that fall outside the remit of Art 93(1)(4a) or that clearly do not have a sufficient prospect of success are sent to a special office, the general registry. Registrars at this office will inform the complainant of the legal situation. If the citizen nevertheless indicates that he or she wishes to continue with the complaint, the matter is referred to a three-judge screening chamber of the court. 311 BVerfG 1, 97 (1951). 312 An example of a successful direct challenge is BVerfG 65, 1 (1983), aimed at the Census Act. This act obliged citizens to take part in a census by providing the authorities with comprehensive information about many aspects of their personal and professional life, which attracted dozens of constitutional complaints. 313 See C Rüth and K Lohse, ‘Constitutional Review of Decisions of Non-Constitutional Courts by the German Federal Constitutional Court’, paper given at the conference on Limits of Constitutional Review of Ordinary Courts’ Decisions in Constitutional Complaint Procedures, Brno, 14–15 November 2005, 4. 314 This typically involves controversial statutes that were not challenged using the abstract review procedure. A good example is BVerfG 1, 418 (1952), where the complainant sought to challenge a law adopted by the Land Hesse which punished Nazi crimes, which was readily admitted by the Bundesverfassungsgericht: ‘the question of the nullity of the punishment law . . . is of general importance, inviting an early constitutional decision’. 315 Law on the Bundesverfassungsgericht, Art 90(2). 307 308

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Verfassungsbeschwerden must further be in writing, filed within a specific deadline316 (one month for grievances directed against administrative decisions or court rulings and one year for complaints directly questioning the constitutionality of statutes) and contain such basic information as the act or omission alleged to have caused harm, the right that has been negatively affected and the State body responsible for this transgression.317 There are few other constraints for individuals or associations to avail themselves of the complaint procedure. A simple letter is sufficient, legal representation is not required318 and the proceedings are free of charge.319 Statistics provided by the Bundesverfassungsgericht show that more than 96 per cent of all petitions submitted to the court between 1951 and 2011 took the form of a constitutional complaint.320 Most Verfassungsbeschwerden are, however, rejected: only 2.4 per cent are examined on their merits. Upon receipt by the general registry, complaints are allocated to screening chambers comprising three judges each to weed out trivial321 and frivolous applications.322 Many constitutional complaints fail at this preliminary stage.323 If one of the chamber judges votes to admit the complaint for decision, the case is passed to the full Senate for consideration.324 There, the so-called ‘rule of three’ means that a complaint will be accepted if at least three out of the eight judges325 are of the opinion that the complaint is constitutionally of fundamental significance or that a refusal to accept would entail a grave hardship for the complainant.326 ii. Czech Republic Article 87(1)(d) of the Czech constitution permits natural and legal persons to invoke the jurisdiction of the Ústavní Soud to complain about encroachments on their fundamental 316 ibid, Art 93. Complaints directed against administrative decisions or rulings handed down by the regular courts must be lodged within one month of that decision or ruling. If the complaint is directed against an act of parliament, a one-year time limit applies, which starts running on the day of entry into force of the act. 317 ibid, Art 92. 318 If a complainant wishes to be represented, he or she may either use an attorney registered with a German court or a lecturer of law at a German institution of higher education: ibid, Art 22(1). 319 The Bundesverfassungsgericht may, however, levy a fee of up to EUR 2,600 if it concludes that the use of the constitutional complaint procedure has been abusive: ibid, Art 34(2). 320 Data available at www.bundesverfassungsgericht.de/en/organization/verfassungsbeschwerde.html. 321 In an earlier version, the Law on the Bundesverfassungsgericht explicitly recognised the power of the chamber to reject complaints as trivial, which would be the case ‘whenever a decision would neither be likely to clarify an open constitutional question nor relieve the appellant of otherwise inevitable severe consequences’. 322 Law on the Bundesverfassungsgericht, Art 24. Each of the two Senates has three screening chambers (Art 15a). Complaints alleging a violation of the fundamental rights found in Arts 2 to 19 of the Basic Law are head by chambers of the first Senate; complaints based on the other articles go to chambers of the second Senate. 323 Chambers are under no obligation to provide reasons for their refusal to accept complaints: ibid, Arts 93d and 24. The so-called ‘Three-Justice Committee Cases’ establish that refusal to accept Verfassungsbeschwerde cannot be appealed. In those cases, the full Senate dismissed constitutional complaints in which individuals submitted that the chamber system contravened the constitutional guarantee found in Art 101 of the Basic Law (providing that everyone is entitled to have her case heard by ‘his lawful judge’), which they argued required a decision by a full Senate of the Bundesverfassungsgericht and not merely one of its chambers: BVerfG 7, 241 (1958); BVerfG 18, 440 (1965); BVerfG 19, 241 (1958). 324 The chambers can decide on the merits of the complaint themselves if it is clearly well founded and the rele vant points of constitutional law raised in it have already been the subject of previous decisions by the full Senate: Law on the Bundesverfassungsgericht, Art 93c. 325 ibid, Art 93d(3). 326 ibid, Art 93a(2). See also D Kommers and R Miller, The Constitutional Jurisprudence of the Federal Republic of Germany, 3rd rev edn (Durham, NC, Duke University Press, 2012) 20–22.

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rights perpetrated by ‘public authorities’.327 While it is uncontroversial that this includes decisions of administrative and regulatory bodies, should judgments of the ordinary courts also fall within this jurisdiction? The Czech supreme court gave a narrow and protectionist interpretation of the term ‘public authority’ for the purposes of Article 87, arguing that this ought not to encompass the regular judiciary. The Ústavní Soud, however, ruled otherwise.328 While complainants may therefore attack decisions and judgments applying acts of parliament on the ground that they impinge upon fundamental rights, the constitutionality of the act itself may in principle not be complained of. That having been said, statutes may be challenged collaterally through the filing of a supplementary petition. This petition must demonstrate a tenable link between the alleged infringement of the complainant’s fundamental right and the unconstitutionality of the legislative provisions applied in the specific decision or ruling that is the subject of the main complaint.329 Complaints must be lodged with the Ústavní Soud within 60 days of the petitioner having exhausted all other means of redress,330 excluding extraordinary remedies that have a discretionary character.331 This requirement can, however, be waived when the constitutional issue is of general importance332 or when the complainant could suffer serious and unavoidable damage as a result of excessive delay incurred in obtaining relief through other procedures.333 Constitutional complaints are in principle dealt with by one of the four panels of the Ústavní Soud.334 Supplementary petitions asking for legislation to be struck down on fundamental rights grounds are adjudicated by the plenum.335 iii. Spain Article 161(1)(b) of the Spanish constitution empowers the Tribunal Constitucional to hear appeals for constitutional redress, so-called recursos de amparo. This right to initiate this procedure is granted to natural and legal persons, the ombudsman and the public prosecutor.336 Amparos can be brought against administrative and judicial decisions,337 omissions

327 The Czech constitution provides for two special constitutional complaints, dealing respectively with the infringement of the right to self-government of local communities by the central government (Czech constitution, Art 87(1)(c); Act on the Constitutional Court, § 72(1)(b)) and the dissolution of political parties (Czech constitution, Art 78(1)(j); Act on the Constitutional Court, § 73). These are discussed below. 328 Judgment 337/97 II US of 13 November 1997. See also J Prˇibánˇ , ‘Judicial Power vs Democratic Representation: The Culture of Constitutionalism and Human Rights in the Czech Legal System’ in Sadurski, Constitutional Justice, East and West (n 113) 380. 329 Act on the Constitutional Court, § 74. Should it find in favour of the petitioner, the Ústavní Soud may quash objectionable legislation. 330 ibid, § 72(3) and (5). 331 ibid, § 75(1). 332 In this case, a one-year time limit applies. 333 Act on the Constitutional Court, § 75(2). 334 ibid, § 15. 335 ibid, § 78. 336 Spanish constitution, Art 162(1)(b). The public prosecutor can only lodge an amparo against an acquittal alleging a violation of procedural rights under Art 24 of the constitution, that is to say, the right to a fair trial and the right of equality of arms. See sentencia 175/2001 of 28 June 2001. 337 Initially, many complainants asserted breaches of their constitutional right to effective judicial protection, with the result that the Tribunal Constitucional in effect operated as a supervisory body vis-à-vis the regular judiciary. We will see in ch 7, section III-B that this has caused tensions to flare between the Tribunal Constitucional and the Spanish supreme court.

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and flagrantly illegal actions,338 but are generally not available to contest the validity of statutes due to a perceived transgression of fundamental rights.339 Complainants must assert a violation of one of the rights and liberties guaranteed by Articles 14 to 30 of the Spanish constitution, which basically cover classic civil and political rights to the exclusion of the more programmatic socio-economic rights.340 As in Germany and the Czech Republic, the procedure has a subsidiary character and recursos de amparo may only be lodged after the petitioner has exhausted other means of redress.341 These requirements notwithstanding, the influx of new complaints – literally thousands per year342 – has threatened to cripple the Tribunal Constitucional’s ability to dispense constitutional justice. In an effort to alleviate the problem, the admissibility conditions were tightened in 2007 as a result of an amendment to the organic law on the Tribunal Constitucional.343 For recursos de amparo to be admissible, complainants must now demonstrate that their case is of ‘special constitutional relevance’ (especial transcendencia constitucional) for the interpretation, application or general effectiveness of the constitution or for determining the meaning to be given to a fundamental right.344 It is clear that the Tribunal Constitucional has some room for manoeuvre in deciding when these criteria are met. The leading case in this regard is judgment 155/2009,345 which is said to demonstrate the progressive objectification of the amparo procedure.346 The constitutional judges held that ‘special constitutional rele vance’ would certainly be taken to exist in four types of cases.347 First are those raising novel points of constitutional law348 or requiring a change in the existing body of case law. Second, amparos alleging a breach of fundamental rights that stems from the established case law of the regular courts or an act of parliament will also be declared admissible. The third type of case covers those where the cause of the alleged violation of fundamental rights is the unwillingness of the regular judges to heed previous rulings of the Tribunal 338 Organic Law 2/1979 on the Constitutional Tribunal, Art 41(2) provides that the public authorities whose acts or omissions are susceptible to challenge by means of an amparo include the public authorities of the State, the autonomous communities and other territorial, corporate or institutional public bodies as well as their officials or agents. 339 Although the Tribunal Constitucional may decide to extend the scope of its examination to the statutory provisions applied in the administrative or judicial decision attacked by means of an amparo. 340 Spanish constitution, Art 53(2). 341 ibid, Art 53(2); Organic Law 2/1979 on the Constitutional Tribunal, Arts 43(1) and 44(1). There is a deadline for bringing complaints, which is set at 20 or 30 days depending on whether the complaint is directed against an act or omission of an administrative or a judicial body respectively. 342 For instance, in 2009 almost 11,000 new cases were registered, almost entirely made up (99.4%) of recursos de amparo. 343 Organic Law 6/2007 of 24 May. The Tribunal Constitucional had previously been given competence to reject amparos by non-reasoned orders (providencias) in an effort to reduce its workload: Organic Law 2/1979 on the Constitutional Tribunal, Art 50(3). 344 Organic Law 2/1979 on the Constitutional Tribunal, Arts 49(1) and 50(1)(b). The Tribunal Constitucional has confirmed that the petitioner bears the burden of justifying the special constitutional relevance of her complaint and that failure to comply with this prerequisite is considered a material as opposed to formal defect, with the result that it is non-remediable and will normally mean that the complaint is dismissed as inadmissible: ordinanza 188/2008 of 21 July 2008. 345 Sentencia 155/2009 of 25 July 2009. 346 J Requejo Pagés, ‘Landesbericht Spanien’ in A von Bogdandy, P Huber and C Grabenwarter (eds), Ius Publicum Europaeum – Band VI: Verfassungsgerichtsbarkeit im europäischen Rechtsraum (Heidelberg, CF Müller, forthcoming) at point 80. 347 The Tribunal Constitucional did state that these types do not amount to a ‘definitively closed range of cases . . . since that understanding is logically opposed to the dynamic nature of the exercise of our jurisdiction, the performance of which, on the basis of casuistry presented, cannot rule out the need to describe or distill concepts, redefine cases considered, and add other new ones, or exclude any which had been initially excluded’. 348 See sentencia 70/2009 of 23 March 2009.

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Constitucional or to apply the latter’s judgments in a consistent manner. Finally, petitions raising legal issues of general relevance will also be examined on their merits. It remains to be seen whether the reform of the admissibility criteria will in practice significantly reduce the Tribunal’s docket and workload. Much will depend on the approach taken by the judges in applying and where necessary further interpreting the new requirements. As a general rule, amparos are dealt with by one of the two divisions of the Tribunal Constitucional, which comprise six judges each.349 If the division considers that the law applied in the administrative or judicial decision complained of does not comport with constitutionally guaranteed rights, it must refer the amparo to the full court, which can also decide to strike down the offensive legislation.350 iv. Hungary Since its establishment, the Hungarian constitutional court has been competent to receive and adjudicate complaints submitted by individuals alleging a violation of one of their fundamental rights. The design of the constitutional complaint procedure has however been amended following the entry into force of a new constitutional framework in 2012. In particular, under the old procedural regime, anyone351 could go to the Alkotmánybíróság and contest the validity of statutes that had been applied by the judiciary or the administration in light of the fundamental rights enshrined in the constitution.352 Crucially, and in contrast to the approach adopted in the countries considered so far, constitutional complaints could not be directed against rulings made by the ordinary judiciary or decisions adopted by executive bodies considered to be in breach of fundamental rights. Through the Hungarian version of the complaint procedure, it was only possible to allege that the legislation that had been applied or interpreted to decide a specific controversy failed to duly respect fundamental rights. The judgment in the case to which the complainant was a party or the adverse decision adopted by the administration was merely the entry ticket to gain admission to the constitutional court, and the Alkotmánybíróság would not examine these acts and where necessary provide relief for any constitutional defects.353 This meant that the old Hungarian constitu349 Organic Law 2/1979 on the Constitutional Tribunal, Art 7. Each division in turn comprises two sections and, following the 2007 reform of the organic law, the sections can also be allowed to deal with amparos that can be resolved on the basis of consolidated constitutional case law (Art 52(2)). The sections can also unanimously rule that amparos are inadmissible by means of non-reasoned orders of rejection. If the section is not unanimous, the matter is transferred to the section for a decision on admissibility. 350 Organic Law 2/1979 on the Constitutional Court, Art 55(2). This is known as an autocuestión de inconstitucionalidad in the Spanish constitutional literature. 351 Both natural and legal persons were covered by this notion: Decision 34/1994 of 24 June 1994. 352 Act XXXII of 1989 on the Constitutional Court, Art 48. The provision did not limit or define the fundamental rights that could be relied upon when filing a constitutional complaint. 353 At the close of a constitutional complaint procedure, the Hungarian court could however provide some form of more concrete relief in addition to declaring that the statute under review was unconstitutional. Thus, the Alkotmánybíróság could declare that legislation found to be incompatible with the constitution was not to be applied to the particular case of the complainant and would accept constitutional complaints directed against statutes that were no longer in force in order to provide individual redress, a situation that regularly presented itself in the field of tax law. Further, in Decision 57/1991 of 8 November 1991, On legal guardians and the family act, the constitutional court went so far as to strike down a judgment of the regular court that was based on an unconstitutional provision in an attempt to refashion the pre-2012 constitutional complaint procedure. This decision was, however, heavily criticised. Furthermore, in Decision 23/1998, Failure to make the constitutional complaint an effective legal remedy, the Alkotmánybíróság considered the consequences of a finding, in the context of a constitutional complaint procedure, that a statute was unconstitutional. There was an option to use such a finding to re-open criminal cases, but a similar remedy was not provided for civil cases. The Hungarian court held that this omission was unconstitutional and that, as a result, the complaint procedure could not be considered an effective legal remedy. Parliament thereupon

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tional complaint procedure served a function quite similar to the procedure for a posteriori abstract review.354 In this regard, it will be remembered that before 2012, individuals were also able to initiate this procedure.355 Given that the conditions of admissibility were more lenient for bringing abstract constitutionality challenges than for filing constitutional complaints, individuals in practice preferred the former procedure to question the compatibility of statutes with the Hungarian constitution, including on fundamental rights grounds.356 With the entry into force of the new constitutional framework, the Alkotmánybíróság’s complaint jurisdiction has been reformed and the procedure now more closely resembles the complaint procedures that have been established in other European countries, although some differences remain. Private individuals and organisations today have two types of constitutional complaint at their disposal to take action against perceived violations of one of their rights protected by the Fundamental Law.357 First, they may assert that rulings delivered by the ordinary judges should be quashed for failing to show proper respect for their fundamental rights.358 Second, individuals and organisations can still go to the Alkotmánybíróság alleging that in judicial proceedings that have culminated in a ruling that has affected them, the ordinary courts have applied legal rules that breach constitutionally protected rights.359 In a variant thereof, in exceptional instances it is also possible for petitioners to directly contest the compatibility of legal norms with fundamental rights, independent of their application in a specific legal dispute.360 As a general rule, complainants must seek to obtain redress in the ordinary courts before their petition will be held admissible361 and the procedure must in principle be initiated within 60 days of receipt of the objectionable court ruling.362 Petitioners seeking to directly challenge the constitutionality amended the civil procedure code to allow for a new trial if the constitutional court establishs the unconstitutionality of legislation applied in specific disputes with retroactive effects. 354 This was also acknowledged by the drafters of the pre-2012 procedural framework, which provided that the rules on the legal effect of decisions of the Hungarian constitutional court were applicable to both sets of procedures: Act XXXII of 1989 on the Constitutional Court, Art 48(3). 355 ibid, Art 21(2) read together with Art 1(b). See in more detail section III-A(i)(c) above. 356 See Brunner, ‘Structure and Proceedings of the Hungarian Constitutional Judiciary’ (n 80) 81. 357 Unlike the pre-2012 situation, complainants are obliged to have legal representation: Act CLI of 2011 on the Constitutional Court, Art 51(2). This requirement may have a deterrent effect on the willingness and ability of individuals to actually lodge complaints, depending for instance on whether legal aid is available for the less financially solvent. 358 Hungarian Fundamental Law, Art 24(2)(d); Act CLI of 2011 on the Constitutional Court, Art 27 and Art 43(1), setting out the legal consequences of a successful constitutional complaint under Art 27. When adjudicating this type of complaint, the Alkotmánybíróság can also review the legal rules that have been applied by the ordinary court for their constitutionality (Art 28(1)). The constitutional court quashed a ruling handed down by a regular court for the first time on 15 February 2013. 359 Hungarian Fundamental Law, Art 24(2)(c); Act CLI of 2011 on the Constitutional Court, Art 26(1). The constitutional court may extend the scope of its examination to the decision of the ordinary court that has served as the trigger for the initiation of this type of complaint procedure (Art 28(2)). Further, the Prosecutor General is granted a right of audience with the constitutional court through this procedure if he or she participated in the original proceedings before the ordinary courts and ‘the person concerned is unable to defend his or her rights personally or if the violation of rights affects a larger group of people’ (Art 26(3)). 360 Act CLI of 2011 on the Constitutional Court, Art 26(2). 361 This is unless there is no other opportunity to obtain legal redress. 362 Act CLI of 2011 on the Constitutional Court, Art 30(1). If the judgment has not been communicated to the prospective complainant, the time starts running when she becomes aware of the judgment or from the date of the violation of the constitutionally protected fundamental rights. Further, if the complainant was unable to comply with the 60-day time limit due to circumstances beyond her control, the constitutional court may still accept the complaint. In those situations as well as in the normal scenario in which the ruling is properly communicated, complaints must be lodged within 180 days of the event that has started the time limit running on pain of inadmissibility (Art 30(4)).

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of legal provisions through the exceptional complaint procedure must lodge their claim within 180 days of the offensive provisions coming into force.363 The organic law regulating the composition and functioning of the constitutional court also includes the filter to be applied in deciding which complaints to examine: the Alkotmánybíróság should admit those petitions alleging a conflict with the Fundamental Law that has significantly affected the contested ruling of an ordinary court and those that raise ‘constitutional issues of fundamental importance’.364 v. Poland In Poland, individuals also enjoy direct access to the Trybunał Konstytucyjny.365 Citizens, foreigners and corporate bodies366 are able to lodge constitutional complaints to vindicate their constitutionally guaranteed rights and freedoms.367 The Trybunał Konstytucyjny has however ruled that the general principle of equality cannot be relied on as the independent basis for a constitutional grievance: Article 32 of the Constitution expresses the principle of equality both as a norm of subjective law and, as a derivative of this norm, the individual’s subjective right to equal treatment. This right has the nature of a second-degree right (a “meta-right”), in the sense that it exists only in conjunction with other specific legal norms or in relation to concrete actions of the organs of public authority. Where these norms or actions have no direct connection with the individual rights and freedoms set out in the Constitution, the right to equal treatment may not be said to possess the nature of a constitutional right. In consequence, it may not be protected by way of constitutional complaint.368

Complaints will be admissible provided that the petitioner shows that she has unsuc cessfully pursued other legal action to obtain redress,369 respects a three-month time ibid. This time limit is fatal and cannot be extended. Act CLI of 2011 on the Constitutional Court, Art 29. 365 Polish constitution, Art 79(1); Constitutional Tribunal Act, Art 2(1)(4). While the constitutional tribunal was created in 1985, the right for individuals to complain to the tribunal was only introduced in the new constitution of 1997. Under the old legal regime, the tribunal could commence own-initiative proceedings and a number of those proceedings came about as a result of complaints from individual citizens: see Schwartz, The Struggle for Constitutional Justice in Post-Communist Europe (n 222) 53; M Brzezinski, ‘The Emergence of Judicial Review in Eastern Europe: The Case of Poland’ (1993) 41 American Journal of Comparative Law 153, 190–91. 366 According to the case law of the Trybunał Konstytucyjny, legal persons can only bring a complaint to the extent that they can be considered a holder of constitutional rights and freedoms. Public legal persons, such as units of local self-government, are not able to use this procedure to challenge legal norms; they can only access the constitutional tribunal in the context of direct actions for annulment: Decision Ts 35/04 of 23 February 2005, Inadmissibility of commune’s constitutional complaint. 367 The only rights that cannot be pleaded are those laid down in Art 56 of the constitution, dealing with the right of foreigners to seek asylum in Poland and be granted the status of refugee (Polish constitution, Art 79(2)). 368 Decision SK 10/01 of 24 October 2001, Constitutional complaint and the principle of equality. Note, however, the strong dissents in the case, with judge Garlicki relying on a moral viewpoint of the role of the court to support a wider interpretation than that professed by the majority: ‘Given the existence of any doubt, constitutional provisions should be interpreted in such a manner as to facilitate the realisation of [the Constitution’s] system of values to the fullest possible extent’, which results in ‘the obligation to interpret the Constitution in a manner most favourable to the protection of an individual’s rights and freedoms’. 369 Decision Ts 189/00 of 13 February 2001, Final decision as a condition for lodging a constitutional complaint; Decision Ts 174/02 of 25 May 2004, Subsidiary character of a constitutional complaint. Upon registration, complaints are subject to a preliminary assessment by a single judge to weed out meritless cases and those that do not comply with the formal requirements (Constitutional Tribunal Act, Arts 36 and 49). A rejection at this stage can be appealed to a three-judge chamber (Constitutional Tribunal Act, Art 36(4)). If the screening judge is of the opinion that the case has some chance of success, it proceeds to a chamber of three or five judges. Particularly complex cases are considered by the full court (Constitutional Tribunal Act, Art 25). 363 364

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limit370 and has instructed a lawyer to prepare the petition.371 The Polish version of the procedure is similar to the system that was in place in Hungary prior to the 2012 constitutional reform (and retained in that country in modified form): individuals can only mount an attack against the validity of legal provisions on the basis of which a regular court has delivered a judgment or the administration has adopted a decision affecting them.372 The Trybunał Konstytucyjny will examine whether the legislature (or other norm-giver) has committed a wrong vis-à-vis complainants by adopting legal rules that impinge upon their fundamental rights or freedoms. It cannot review and offer redress for infringements of fundamental rights caused by the incorrect application or inter pretation of legal provisions by the regular judiciary or the administration in specific cases.373 The final decision of an administrative body or an ordinary court is merely the trigger for the constitutional complaint procedure, but disappears from the Trybunał Konstytucyjny’s examination once the petition is held admissible.374 Questions of access aside, the Polish constitutional complaint procedure is virtually identical to the procedure that enables public institutions to challenge statutes and other legal texts in the abstract. The Trybunał Konstytucyjny is directed to decide constitutional complaints using the same principles and procedural requirements that apply to abstract constitutionality challenges.375 Furthermore, while the Trybunał Konstytucyjny can strike down the legal provisions referred for scrutiny by private individuals, it cannot quash the final administrative or judicial decision that was used to activate the constitutional complaint procedure. To obtain relief, the successful complainant must ask the competent ordinary court to reopen her case and adopt a new decision in accordance with the ruling of the Trybunał Konstytucyjny.376 vi. Comparative Remarks In what follows, the constitutional complaint procedure will be examined in comparative perspective. This will be done, firstly, by reflecting on some of the similarities and differences in the design of this procedure in those European countries that have given their constitutional court jurisdiction to protect the fundamental rights of individuals in the context of specific grievances. Secondly, we will consider why these constitutional courts have been Constitutional Tribunal Act, Art 46. ibid, Art 48. 372 Norms adopted by local authorities can also be challenged using the complaint procedure, provided that these are general and abstract in nature: Decision Ts 139/00 of 6 February 2001, Subject of review initiated by constitutional complaint. 373 This limitation of the constitutional complaint procedure came about principally at the behest of the Polish supreme court, which was eager to avoid a situation where the Trybunał Konstytucyjny would be competent to review its decisions (and those of lower ordinary courts) for possible infringements of constitutionally guaranteed rights, according to L Garlicki, ‘Le recours individuel à la Cour constitutionnelle – un moyen efficace de la protection des droits de l’homme?’, paper presented at the seminar on Constitutionality Control and the Protection of Fundamental Rights, Erévan, 22–24 October 1997, 4. 374 According to the constitutional tribunal’s case law, a law serves as the basis for the final decision ‘when the decision – with the same subject to adjudication and scope of the case – would (or could) be different, had the legal norm containing the challenged contents not been in force. Moreover, it is not of crucial importance whether or not the organ conducting the concluded case explicitly mentioned the provision challenged by the complainant’: Decision Ts 139/00 of 6 February 2001, Subject of review initiated by constitutional complaint. 375 Constitutional Tribunal Act, Art 46(2). 376 Art 50 of the Constitutional Tribunal Act provides that the complainant can ask the Trybunał Konstytucyjny to adopt a preliminary decision suspending the enforcement of the final judicial or administrative decision that she has relied on in order to initiate the constitutional complaint procedure. 370 371

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empowered to perform this particular task and highlight the (possible) ramifications of the exercise of this function for the system of constitutional adjudication as a whole. When it comes to admissibility conditions, the procedural regimes governing constitutional complaints in the five countries are broadly similar. Prospective complainants must in principle first exhaust other legal avenues, which, in practice, means asking the regular courts to duly protect their fundamental rights allegedly violated by an administrative decision or a lower court judgment. Constitutional grievances must be submitted within a certain deadline, the length of which however varies somewhat among the countries. The petitioner must further assert a violation of one of the constitutionally guaranteed rights and freedoms to gain access to the constitutional court, and cannot contest the lawfulness of action taken by the public authorities on other constitutional grounds. There is, however, a difference in the range of fundamental rights that can be pleaded in the context of this procedure. In Germany and Spain, individuals and associations can claim a violation of certain enumerated rights – mostly civil and political rights. In contrast, complainants in the Czech Republic, Hungary and Poland may invoke the entire catalogue of constitutional rights, including social and economic rights.377 Further, in each of the European countries both natural and legal persons are entitled to file constitutional complaints. Spain also accords standing to the ombudsman and the office of the public prosecutor; and the latter public body is also allowed to lodge complaints in Hungary if the affected individual is unable to do so herself or if the purported breach of rights affects a larger group of people.378 Giving ombudsmen and, to a lesser extent, public prosecutors the right to lodge complaints may be beneficial in ensuring that possible infringements of the rights and interests of (individuals belonging to) minority groups are brought to the court’s attention, and allows ombudsmen more generally to act as guardians of the constitution and monitor the adherence to human rights by all public authorities. The most striking difference among the constitutional regimes set out above concerns the object of the constitutional complaint. In Germany, the Czech Republic, Spain and Hungary post-2012, individuals assert that the judiciary or the administration has committed an unconstitutional act by failing to accord the necessary respect for their fundamental rights when interpreting or enforcing the applicable statutory provisions. While there are also opportunities to challenge the constitutionality of the legislation itself on the ground that it impinges on their fundamental rights, such petitions are not common. In contrast, in Poland, constitutional complaints are directed against the legal provisions applied by the courts or the administration as the basis for a specific decision; and a similar regime was in place in Hungary before 2012 and is today retained under the country’s Fundamental Law (alongside the new ability to attack individual court decisions).379 In these cases, the constitutional court thus only examines whether general legal norms comport with the constitution; and complaints are not available to offer relief in situations 377 On the inclusion of those rights in the constitutions of central and eastern European countries as well as relevant case law, see Sadurski, Rights before Courts (n 94) ch 7. Note further that even if the rights that can be pleaded are strictly circumscribed, the constitutional court can broadly and creatively interpret those rights and thereby enlarge its jurisdiction. 378 Act CLI of 2011 on the Constitutional Court, Art 26(3). 379 In this respect, Georg Brunner has drawn a distinction between what he calls ‘echte’ and ‘unechte’ (genuine and limited) constitutional complaints, where the Polish and Hungarian pre-2012 versions would qualify as limited complaints. See Verfassungsgerichtsbarkeit in Polen (Baden-Baden, Nomos, 1999) and ‘Der Zugang des Einzelnen zus Verfassungsgerichtsbarkeit im europäischen Raum’ in Jahrbuch des Öffentlichen Rechts, vol 50 (Tübingen, Mohr Siebeck, 2002) 206 ff, 218 ff.

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where the statutory provisions comply with the constitution but have been interpreted or enforced in an unconstitutional fashion by a regular judge or the administration in a concrete case.380 The reasons that presumably motivated the constitution-makers in the various European countries to introduce the complaint procedure are linked to the historical circumstances surrounding the establishment of constitutional courts from the late 1940s onwards.381 Germany, Spain, the Czech Republic, Poland and Hungary had an axial moment in the form of a regime change and sought to leave their Fascist or Communist past behind and transition to democracy. There was a strongly felt sensitivity to the protection of the rights of individuals, as these had often been trampled under the old legal regime, and a keen desire to avoid backsliding. Against this backdrop, the constitutional complaint mechanism usefully indicated to citizens that the elaborate lists of rights included in the new democratic constitution would not be mere paper tigers and that their enforcement was not purely or primarily dependent on the State authorities – notably the legislature – that individuals had often grown to distrust. As Jutta Limbach, the first female president of the German Bundesverfassungsgericht, observes: I am convinced that the German citizens have understood that they are being called upon to be the guardians of the Constitution by way of the right to file constitutional complaints. Due to their attention, their sense of law, and, last but not least, their mind to oppose, the Federal Constitutional Court was able to act as the guardian of the Basic Rights. With its jurisdiction on the Basic Rights, the Court broke with authoritarian traditions and outlined the principles of the free and democratic rule-of-law state.382

Let us now examine the consequences of the complaint jurisdiction for the position of the constitutional court more generally. Jutta Limbach’s observations highlight the important educational role that constitutional complaint procedures may play, in the sense that they can help raise the population’s constitutional awareness and show that the fundamental rights and liberties that the constitution protects are directly applicable and effective law. The mechanism can thus be a powerful element in fashioning a constitutional culture and ingraining constitutional values and principles in society, which may be important notably in the years immediately following a country’s transition to democracy. From a more instrumental perspective, opening the constitutional courtroom to individuals with grievances concerning the lack of protection accorded to their fundamental rights increases the likelihood that most (if not all) potential conflicts between ordinary legal acts and the constitution will find their way to the constitutional court. Certain legal provisions or decisions will not be referred for review by the public institutions that have standing to initiate abstract constitutionality challenges, often due to a lack of political will. Affected individuals are less likely to feel a similar inhibition and may ‘compensate for the passivity 380 Of course, if the court finds that the application – as opposed to the underlying norm – is unconstitutional, it may look more carefully at the wording of the legal norm to see whether unconstitutional application is likely to occur given the way the norm is drafted, which may influence its assessment on the constitutionality of the legal norm. In addition, the court may make use of the technique of constitution-conform interpretation, declaring that the law comports with the constitution if it is read in a certain way. This technique is discussed more fully in ch 6, section IV. 381 To be fair, it was explained in ch 2 that Germany and the Czech Republic had some form of constitutional adjudication before the late 1940s, although there are today more procedural gateways that give access to the Bundesverfassungsgericht and the Ústavní Soud, including the constitutional complaint procedure. 382 J Limbach, ‘The Role of the Federal Constitutional Court’ (2000) 53 SMU Law Review 429, 441.

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of political institutions in some cases’383 by questioning the constitutional conformity of measures whose validity would otherwise remain uncontested. At the same time, the complaint jurisdiction is often responsible for the bulk of the court’s caseload.384 Every year, individuals flock in overwhelming numbers to Karlsruhe, Brno, Madrid, Budapest and Warsaw in the quest for the judicial vindication of their constitutional rights and liberties. In response, there have been several attempts by the legislatures and the courts in the different countries to stem the rising flood of complaints. These have taken the form of simplified procedures for disposing of complaints, including by allowing smaller sections of the court to decide on the admissibility or even the merits of petitions and by a progressive tightening of the grounds for admitting complaints. Even so, finite judicial resources are still expended on informing individuals that the court will not take up their case. Furthermore, the measures taken so far to curb the influx of new cases have yet to yield the desired result. Even with the likelihood of the constitutional court actually examining their case being less than 4 per cent on average, individuals continue to pursue this path to the courts with vigour. Grabenwarter suggests a possible explanation for this state of affairs: A court that decides on conflicts between individuals and the state will, to a certain extent, decide in favour of the applicant. Even if the percentage of successful applications is low, the public perception will be that the constitutional court is an effective instrument for protecting fundamental rights. This is favoured by the reality of the modern media society: one spectacular case won by the applicant may be in the headlines of the press and the electronic media for weeks, whereas no one takes notice of the thousands of rejected applications. For this reason, the constitutional court very often has the public opinion on its side.385

Indeed, the experience in the various European countries suggests that the possibility for individuals to directly invoke the constitutional court’s jurisdiction can have a positive effect on the way in which the public at large perceives the legitimacy of the court and its judgments. More generally, it is clear that the complaint mechanism has generally been a success in those countries that have introduced it and has enabled constitutional courts to hand down some of their most significant and well-known rulings.386 The discussion in the coming years will be on whether, and if so what, reforms are needed to keep the procedure workable.387 Ferreres Comella, Constitutional Courts & Democratic Values (n 8) 64. This was arguably not intended or expected by the drafters of the constitution and the acts on the constitutional courts, in light of the scant regulation of the constitutional complaint procedure when compared to the quantity and detail of provisions dealing with abstract constitutionality challenges and preliminary references. 385 C Grabenwarter, ‘Keynote Speech: Separation of Powers and the Independence of Constitutional Courts and Equivalent Bodies’, 2nd Congress of the World Conference on Constitutional Justice, Rio de Janeiro, January 2011, 9. 386 For Germany, see eg BVerfG 7, 198 (1958) Lüth, discussed in ch 5, section IV; for Spain, consider as an example sentencia 45/1989 of 20 February 1989, discussed in ch 6, section V-B(iii). 387 Ferreres Comella argues in favour of revising the system and either giving constitutional judges discretionary power to decide whether to accept constitutional complaints or restrict the scope of the complaint jurisdiction and only allow individuals to challenge the constitutionality of legislative provisions, and not their application in a concrete case: Constitutional Courts & Democratic Values (n 8) 38. The first suggestion was also made in Germany by a committee of experts, including members of the Bundesverfassungsgericht, as reported in E Blankenburg, ‘Mobilisation of the German Federal Constitutional Court’ in R Rogowski and T Gawron (eds), Constitutional Courts in Comparison: The US Supreme Court and the German Federal Constitutional Court (New York, Berghahn Books, 2002) 162. In this respect, one could draw a parallel with the situation in which the European Court of Human Rights finds itself. This court, just like the constitutional courts that have complaints jurisdiction, hears petitions by individuals alleging that their fundamental rights as protected in the ECHR have been infringed. The 383 384

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Lastly, it ought to be pointed out that the constitutional complaint procedure can be a source of tension between constitutional courts and regular judges. We have seen that individuals must, as a rule, first exhaust other means of legal redress before being able to launch a constitutional complaint. The upshot is that complaints are typically directed against a final judgment by a court in the higher echelons of the regular judiciary, with petitioners alleging that this court has failed to adequately protect their fundamental rights and calling upon the constitutional court to provide relief. This appellate dimension of the constitutional complaint mechanism is explored in more detail in chapter seven, where we shall also consider some of the techniques developed by constitutional courts to deflate tensions and avoid acting systematically as a ‘supra-appeal’ body.388 C. Resolving Institutional Disputes A third function that may be entrusted to constitutional courts involves maintaining the balance of powers between State organs or different levels of government. While the task of protecting the fundamental rights of individuals in specific cases through the constitutional complaint procedure is grounded in normative thinking and rights ideology, giving constitutional courts responsibility for enforcing the distribution of competences between political institutions or echelons is a response to the functional need for an independent umpire to resolve jurisdictional disputes.389 In line with notions of the separation of powers and checks and balances, constitutions fragment State power, by allocating competences to a variety of institutions and sometimes also to different levels of government and addressing the relationships among these various government entities. It is an integral part of the constitutional life in most countries that disagreements or conflicts arise among State entities concerning the precise demarcation of their authority, powers and duties. Such disputes can be resolved within the political arena, but many constitutional systems opt to designate courts as ultimate arbiters in this regard. Courts can be considered to offer several advantages over other bodies as a forum for dispute resolution: they are (perceived to be) neutral and independent of the parties to the conflict, and they will decide the controversy with reference to legal norms, rather than resorting to political considerations or even the brute force of power. Martin Shapiro has in this context spoken of courts as triadic dispute resolvers.390 As already alluded to, the function of maintaining the balance of powers can involve courts policing the vertical division of competences between different echelons of government, usually associated with federal or federal-like systems (section i) or deciding jurisdictional conflicts associated with the horizontal separation of powers between State institutions at the central level (section ii). In line with the approach of this chapter, the ensuing comparative analysis offers a discussion of procedures specifically designed for the adjudication of jurisdictional disputes. At the European Court of Human Rights has experienced an explosion in its caseload: according to its own statistics, on 1 January 2010 there were approximately 119, 3000 applications pending. In an attempt to stem the incoming tide, a new protocol (no 14) was added to the ECHR, which contains a number of measures that allow the Court to screen and process applications more efficiently. 388 ch 7, section III-B. 389 See T Ginsburg, ‘The Global Spread of Constitutional Review’ in K Whittington, RD Keleman and G Caldeira (eds), Oxford Handbook of Law and Politics (New York, Oxford University Press, 2008). 390 M Shapiro, Courts: A Comparative and Political Analysis (Chicago, University of Chicago Press, 1986).

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same time, it should be recalled that the different constitutional functions that can be entrusted to constitutional courts are not hermetically sealed or mutually exclusive. As mentioned earlier, when a court is asked to decide whether the federal lawmaker has usurped the competences that the constitution has allocated to the federated entities – and is therefore engaged in enforcing the vertical balance of powers – its ruling may simultaneously and incidentally also place limits on the ambit and use of legislative powers by the federal lawmaker. In a related vein, we shall also see that the procedural gateways associated with the task of keeping the legislature in check and reviewing legislation for its constitutionality – in particular, abstract constitutionality challenges and the preliminary reference procedure – may also be used in some countries to refer institutional disputes to the court. i. Enforcing the Vertical Balance of Powers This section explores how and by whom constitutional courts can be accessed to ensure that the different levels of government do not invade each other’s jurisdictional domain.391 Given the nature of this inquiry, the majority of countries featured below are federal systems or ascribe to a strong vertical division of powers, that is to say: Germany, Belgium, Spain and Italy.392 In addition, it is noteworthy that Hungary, though not a federal state, also gives its constitutional court the jurisdiction to resolve competence conflicts between central and local state organs through the lens of its Fundamental Law.393 That having been said, this procedure is considered insignificant and is rarely activated, and therefore warrants no further treatment in this section. Finally, we will also consider the possibility provided for in some constitutions – including that of the Czech Republic, which is not a federalised state – for local bodies to lodge a constitutional complaint with the constitutional court alleging a violation of their right to self-government.394 391 The following discussion draws on M Claes and M de Visser, ‘The Court of Justice as a Federal Constitutional Court: A Comparative Perspective’ in E Cloots, G De Baere and S Sottiaux (eds), Federalism in the European Union, Modern Studies in European Law (Oxford, Hart Publishing, 2012) 90–97. 392 The constitutional court in Austria also has the competence to pronounce on competence conflicts between the federation and the Länder: Austrian constitution, Art 138; Constitutional Court Act, §§ 47(4), 50(1) and 53–56. A distinction is made in this respect between concrete and abstract disputes. Concrete disputes entail a disagreement between the federation and the Länder in relation to a specific issue. These conflicts can be referred to the constitutional court by the federal government, by the affected Land government, and, in the event of a negative conflict (meaning that both levels decline jurisdiction), by the party whose claim was dismissed. In the context of adjudicating abstract disputes, the constitutional court conducts a priori review, in that it may be asked by the federation or the Länder to determine whether a draft law or regulation exceeds the competences allocated to the level seeking to adopt the impugned legal norms. In addition, the Supreme Court in the United Kingdom has certain responsibilities to ensure that the devolved authorities in Scotland, Wales and Northern Ireland do not overstep their competences or fail to executive duties incumbent upon them by virtue of the devolution statutes: Constitutional Reform Act 2005, s 40 and sch 9. It should be noted that ‘devolution issues’ include review of acts adopted by the devolved authorities to assess their compatibility with the European Convention on Human Rights and EU law: Scotland Act 1998, sch 6, para 1; Northern Ireland Act 1998, sch 10, para 1; Government of Wales Act 2006, sch 9, para 1. 393 Act CLI of 2011 on the Constitutional Court, Art 36. The court was also able to adjudicate competence conflicts between the national government and local administrative bodies under the pre-2012 constitutional regime (Hungarian constitution, § 50) and its jurisdiction could also be invoked by territorial state administrative offices, which could ask it to quash local decrees that were considered to be in conflict with the law (after these offices had in vain called upon the responsible local authority to amend the offending byelaw: Act LXV of 1990 on Local Governments, § 99(2)(a)). See further Brunner, ‘Structure and Proceedings of the Hungarian Constitutional Judiciary’ (n 80) 82–83, 88. 394 On a separate but related note, in Hungary, the government can solicit the constitutional court’s opinion on whether a local representative body has operated in breach of the Fundamental Law. The court’s findings are however not legally binding and it is ultimately for Parliament to decide whether to dissolve a local body for unconstitutional activities: Hungarian Fundamental Law, Art 35(5); Act CLI of 2011 on the Constitutional Court, Art 34.

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Germany Under Article 93(1)(3) of the Basic Law, the Bundesverfassungsgericht may act as an arbiter in jurisdictional disputes between the federation and the individual states (known as BundLänder-Streitigkeiten) stemming from alleged injuries suffered by them in relation to the rights and duties assigned to them by the Basic Law.395 Conflicts are particularly likely to concern the administration of federal law by the Länder and the oversight exercised by the federation in this regard.396 Only Land governments and the federal government have standing to initiate this procedure,397 which is furthermore subject to a six-month time limit from the act or omission complained of becoming known.398 Although it enjoyed a short spell of popularity in the 1950s, the federation and the Länder now tend to use abstract constitutionality challenges to refer jurisdictional conflicts to the Bundesverfassungsgericht. This is in large part due to the more lenient admissibility conditions for filing such challenges, in terms of both standing (one-third of Bundestag members can act as petitioners) and the absence of a deadline by which claims for abstract review must be submitted.399 Furthermore, the federation and the Länder have access to the Bundesverfassungsgericht for the judicial settlement of public law disputes of a non-constitutional nature.400 Finally, German municipalities or associations of municipalities may submit a constitutional complaint to the Bundesverfassungsgericht if they believe that their constitutional right to self-government has been violated.401 If the incursion into local competence is due to a law adopted by a Land, complaints are admissible only if the municipality is unable to obtain judicial redress within the Land.402 Belgium It was explained in the previous chapter that the establishment of the Belgian Cour constitutionnelle was prompted by the federalisation of Belgium in the 1970s and that its original mandate was confined to determining whether the legal rules adopted by the federal, community and regional legislatures comported with the constitutional provisions that Law on the Bundesverfassungsgericht, Art 69 read together with Art 64(1). See also German Basic Law, Arts 84–85. The oversight procedure works as follows: If the federal government considers that there have been problems with the way in which a Land has administered federal law, it notifies the Land of its findings. In the absence of remedial action taken by the Land, the government and the affected Land may petition the German Senate (the Bundesrat), which will decide whether a violation has indeed occurred. The decision of the Bundesrat may be contested before the Bundesverfassungsgericht (Law on the Bundesverfassungsgericht, Art 70). Additionally, should a Land fail to comply with its obligations under the Basic Law or federal law, the federal government may take measures to compel such compliance. This latter procedure has, to date, never been used, in view of the ability of the two echelons to bring their disputes before the Bundesverfassungsgericht: BVerfG 7, 367 (1958) at 372. 397 Law on the Bundesverfassungsgericht, Art 68. 398 ibid, Art 69 read together with Art 64(3). 399 See also W Heun, The Constitution of Germany: A Contextual Analysis, Constitutional Systems of the World (Oxford, Hart Publishing, 2011) 73. 400 German Basic Law, Art 93(4); Law on the Bundesverfassungsgericht, Arts 71–72. 401 German Basic Law, Art 93(1)(4b); Law on the Bundesverfassungsgericht, Art 91. The right to self-government is laid down in Art 28(2) of the Basic Law. In examining the merits of such complaints, the Bundesverfassungsgericht checks whether the limitations of self-government affect the ‘core functions’ (Kernbereich) of municipalities. In this respect, it has been observed that ‘the guarantee of local self-government is an institutional guarantee, not one that affects individual municipalities’ and that hence the re-drawing of boundaries between municipalities cannot lead to a finding of unconstitutionality in this context: A Gunlicke, ‘Constitutional Law and the Protection of Subnational Governments in the United States and West Germany’ (1988) 18 Publius 141, 150–51. 402 This would be done by filing a challenge against the offending Land law in the constitutional court of the Land, whereby Land law can provide the form that such a challenge can take, eg a Land-level constitutional complaint. 395 396

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distribute competences among the various echelons.403 We have also seen that the Cour constitutionnelle’s portfolio of responsibilities has gradually expanded, at the behest of the (constitutional) legislature and as a result of the court’s broad and creative interpretation of the provisions that can serve as grounds for review in its case law.404 More specifically, the former did not decide to establish new procedures granting access to the Cour constitutionnelle for a particular purpose, but rather added other constitutional provisions to the grounds on which the Cour constitutionnelle can test the validity of legal acts adopted by the various levels of government. The upshot is that there is no special procedure in Belgium to assert that either of the echelons has overstepped its competences, akin to the German Bund-Länder Streitigkeitenverfahren.405 Claims that the federal state or the federated entities have acted in breach of the vertical separation of powers can instead be relied on as the reason to contest the validity of legislation by means of an abstract constitutionality challenge. In terms of access, this means that alleged violations of the constitutional distribution of competences can be pleaded by the Council of Ministers; the governments of a community or region; the presidents of the central, community or regional legislative assemblies (at the request of two-thirds of their members); and individuals with a justifiable interest.406 In addition, regular judges may decide to invoke the Cour constitutionnelle’s jurisdiction by making a preliminary reference because they believe that the statute to be applied in the main proceedings is ultra vires. Spain Under Article 161(c) of the Spanish constitution, the Tribunal Constitucional may hear petitions regarding ‘conflicts of jurisdiction between the State and the Autonomous Communities or amongst the Autonomous Communities themselves’. In terms of applicable procedures, an essential factor concerns the nature of the act alleged to contravene the vertical balance of powers. Acts of legislative rank can only be referred to the Tribunal Constitucional for review through the filing of an abstract constitutionality challenge (recurso de inconstitucionalidad), with the challenger asserting that the contested provisions should be struck down for breaching the division of powers.407 In this regard, the Spanish and Belgian procedural regimes are comparable. Acts of sub-statutory rank adopted by either the State or an autonomous community can be contested by the other level by means of special procedures for the resolution of institutional conflicts.408 The recurso de inconstitucionalidad and these special procedures for policing the jurisdictional boundaries between the State and the autonomous communities are linked, in that if a case is initiated using one of the special procedures and the Tribunal Constitucional considers that the resolution of the competence dispute requires an assessment of the constitutionality of an act 403 See ch 2, section III-A(i). This specific and narrow mandate was also evident in the original name of this judicial institution: it was known as the Cour d’arbitrage (court of arbitration) from its inauguration in 1984 until 2007. 404 On this last aspect, see in more detail ch 5, section II. 405 Since the procedure for abstract review in Belgium was conceived by its draftsmen exclusively for the resolution of jurisdictional conflicts, it could be said that Belgium used to have a procedure tailored to enforcing the vertical balance of powers – and that the combined efforts of the Cour constitutionnelle adding fundamental rights as grounds for review and the legislature progressively expanding the range of constitutional provisions that can be applied as yardsticks in the context of this procedure have progressively detracted from the special character and effectively transformed the procedure. 406 Belgian constitution, Art 142; Special Act on the Constitutional Court, Art 2. 407 See sentencia 32/1981 of 28 July 1981, confirmed and developed in sentencia 49/1984 of 5 April 1984 at FJ 1–2. 408 See Organic Law 2/1979 on the Constitutional Tribunal, Title IV, ch II.

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of legislative rank, it must of its own motion convert the procedure into an abstract constitutionality challenge.409 Recall that, in terms of procedure, the position of the autonomous communities under the latter procedure is somewhat less favourable than that of the central State. They may only launch recursos de inconstitucionalidad against national statutes that ‘may affect their own area of autonomy’ and the initiation of this procedure does not as a rule suspend the operation of the contested national provisions, whereas claims brought by the State against legal norms enacted by the autonomous communities automatically suspend the enforcement of those rules.410 Focusing on institutional controversies involving sub-statutory norms, a distinction is made between ‘positive’ and ‘negative’ conflicts.411 In the former scenario, both the State and at least one of the autonomous communities assert the authority to deal with the same issue, whereas in the latter case, both echelons of government declare that they lack the power to act412 – an infrequent occurrence. This distinction is relevant for the rules on standing: positive conflicts may be referred to the Tribunal Constitucional by either the central government or the executive body of the autonomous community; negative jurisdictional conflicts may also be referred for review by affected natural or legal persons.413 As with the recurso de inconstitucionalidad, the State and the autonomous communities do not enjoy equal procedural rights in the context of litigation regarding the vertical balance of powers. While the latter are only admitted to the Tribunal Constitucional to complain about positive conflicts ‘where [their] own field of jurisdiction is affected’ by the legal rule whose constitutionality they contest, the State has unlimited access to the constitutional courtroom in the context of this procedure.414 Further, claims filed by the State alleging the existence of a positive conflict of jurisdiction and objecting that legal norms enacted by an autonomous community are ultra vires immediately suspend the operation of the impugned provisions.415 The Tribunal Constitucional must decide to continue or terminate the suspension within five months.416 Conversely, in the event that an autonomous community seeks to contest the 409 Organic Law 2/1979 on the Constitutional Tribunal, Art 67. This is known as an autocuestión de inconstitucionalidad. 410 For more detail, see the discussion on Spain in section III-A(i)(b) above. 411 In both cases, however, the Tribunal Constitucional is required to hand down its decision within 15 days following the conclusion of the oral hearings or the expiry of the deadline for the submission of additional evidence by the parties to the case: Organic Law 2/1979 on the Constitutional Tribunal, Art 65. 412 The word ‘declared’ in this context refers to the fact that for such conflicts to occur, there must have been two declarations. The State or autonomous community will have been approached by a natural or legal person with a request to exercise jurisdiction and must have adopted a declaration declining to do so on grounds of lack of competence and indicating the entity that it believes to be competent in this regard. The second declaration must be adopted by the entity that is alleged to have powers to take action in the matter (in the first declaration), sim ilarly refusing jurisdiction (ibid, Art 68). A different kind of negative conflict of jurisdiction can arise if an auto nomous community refuses to exercise competences assigned to it by its own statutes or delegated to it by an organic law on grounds of lack of competence, after the State has invited it to take action (Art 71). 413 ibid, Art 60. 414 The government is further able to contest enactments of the autonomous communities that do not have the force of law on constitutional grounds, including for breaches of provisions other than those that allocate powers vertically: Spanish constitution, Art 161(2); Organic Law 2/1979 on the Constitutional Tribunal, Art 76. This procedure is usually used in conjunction with that governing the adjudication of positive conflicts of jurisdiction, but if the State is of the opinion that the act of the autonomous community does not encroach upon its own sphere of competences, but is nevertheless unconstitutional, it may use this procedure as a self-standing means of redress. The majority of such sub-statutory measures are however reviewed by the regular courts for their legality, rather than their constitutionality. The Tribunal Constitucional has endorsed this judicial practice and only accepts petitions filed exclusively under this procedure if the legal issue at stake can affect the wider constitutional order. 415 Organic Law 2/1979 on the Constitutional Tribunal, Arts 64(2) and 77; Spanish constitution, Art 161(2) (impugnacíon de disposiciones sin fuerza de Ley y resoluciones de las Comunidadas Autónomas). 416 Organic Law 2/1979 on the Constitutional Tribunal, Art 65(2).

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validity of a State act in light of the vertical division of powers, it may ask the Tribunal Constitucional for a stay of the objectionable measure ‘citing damages impossible or difficult to redress’, but the latter has discretion in deciding whether to grant to the requested interim relief.417 Lastly, the State is able to directly invoke the jurisdiction of the Tribunal Constitucional to adjudicate disputes concerning the constitutional allocation of powers,418 whereas an autonomous community must first request that the organ that authored the ultra vires act reconsider it, and only if this request does not yield the desired result or goes unanswered within a specific time limit is it possible to refer the controversy to the Tribunal Constitucional for resolution.419 As of 1999, the Tribunal Constitucional is also competent to deal with jurisdictional controversies involving municipalities and provinces.420 If these local authorities believe that legal rules with the force of law enacted by the State or an autonomous community unduly interferes with their constitutional right of local self-government,421 they can submit a claim in defence of their right with the Tribunal Constitucional.422 In practice, this type of conflict is ‘of marginal importance’.423 Italy A task of the Corte costituzionale that has become increasingly important in recent years is to act as the ultimate guardian of the vertical balance of powers.424 The design of the procedural framework bears some resemblance to that in place in Spain. Claims alleging that a legislative act adopted by the State or a region is ultra vires must be submitted to the Corte costituzionale in the form of requests for a posteriori abstract review, ie through the procedure set out in Article 127 of the Italian constitution. It will be remembered that the State (or more precisely: Council of Ministers), the 20 Italian regions and the autonomous provinces of Trento and Bolzano have standing and that petitions must be lodged with the Corte costituzionale within 60 days of the publication of the objectionable legislation.425 We also saw that the lower echelon may only challenge State laws on the ground that these impinge upon its jurisdiction, whereas the State is unencumbered in the range of constitutional provisions that it may accuse regional legislation of violating. Furthermore, there exists a special procedure for the adjudication of conflicts concerning the division of competences between the State and the regions or among the regions (conflitti di attribuzioni).426 This procedure can however only be used by the State and the regions to challenge nonlegislative acts427 that they consider encroach upon their own powers and authority. As with proceedings brought under Article 127, the initiation of the special mechanism for

ibid, Art 64(3). ibid, Art 62. 419 ibid, Art 63. 420 ibid, ch IV, added by Organic Law 7/1999. 421 Spanish constitution, Art 137. 422 Before being able to file proceedings, the municipality or province must request an opinion from the state council or the advisory board of the autonomous community to which it belongs, and this opinion must be obtained within three months of the publication of the objectionable legal norm. 423 V Ferreres Comella, ‘The Spanish Constitutional Court: Time for Reforms’ (2008) 3 Journal of Comparative Law 22, 28. 424 Italian constitution, Art 134 second indent. 425 See the discussion of Italy in section III-A(i)(b) above. 426 Law no 87/1953, Art 39. 427 This notion is interpreted broadly and includes court rulings: see sentenza 391/1999 of 13 October 1999. 417 418

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resolving conflitti di attribuzioni is subject to a 60-day time limit.428 The Corte costituzionale may of its own motion suspend the implementation or execution of the contested measure if ‘grave reasons for doing so’ exist.429 Czech Republic The state form of the Czech Republic is not that of a federation, but of a decentralised state, divided into regions and municipalities.430 The constitution recognises that these bodies enjoy the right to self-government.431 In the event of a perceived encroachment upon that right by higher echelons of the State, municipalities and regions may lodge a constitutional complaint with the Ústavní Soud.432 In addition, the Ústavní Soud is empowered to adjudicate institutional conflicts between the State and the regions433 originating in the adoption of non-legislative acts that are believed to breach the vertical separation of powers.434 While it is possible to transfer this particular task to the supreme administrative court, no such handover has as yet taken place.435 Comparative Remarks The above examination shows that there are some variations in the way in which countries have designed the procedural gateways that make it possible to refer conflicts concerning the vertical balance of powers to the constitutional court, although some common features can also be identified. Germany, Spain and Italy have all introduced procedures tailored to the function of guaranteeing the constitutional separation between the State and lower echelons of government. In addition, the Bundesverfassungsgericht, the Tribunal Constitucional and the Ústavní Soud are competent to receive constitutional complaints filed by local bodies asserting that the central level has impinged upon their right to self-government.436 While the existence of this procedure can be understood as reflecting the constitutional character of that right, it has been used only sporadically. In contrast, Belgium does not provide for a special procedure allowing the Cour constitutionnelle to perform its task as arbiter of institutional conflicts. Alleged unconstitutional boundary crossings by any of the three lawmakers may be referred to the Cour constitutionnelle through the filing of abstract constitutionality challenges or by regular judges raising preliminary questions concerning the validity of statutory provisions in light of the constitutional allocation of competences. Similarly, in Spain and Italy, claims that legislative acts 428 Law no 87/1953, Art 39. The time starts running on the day of publication or the day on which the existence of the objectionable act became known. 429 Law no 87/1953, Art 40. 430 Czech constitution, Art 99. 431 ibid, Art 100(1). 432 ibid, Art 87(1)(c); Act on the Constitutional Court, § 72(1)(b). The applicable procedural rules are largely the same as those governing constitutional complaints filed by individuals alleging a breach of their fundamental rights or liberties. 433 Intra-region disputes are also included. 434 Czech constitution, Art 87(1)(k); Act on the Constitutional Court, §120. 435 Czech constitution, Art 87(3)(b). 436 The pre-2012 Hungarian constitution also recognised that local state organs had a right to self-government in Art 43(2), but despite the wording of this provision and similar provisions in Act LXV of 1990 on Local Governments – according to which local governments were able to appeal to the constitutional court for protection of their rights – the Hungarian constitutional court refused to acknowledge the existence of a special local community constitutional complaint: Decision 37/1994 of 24 June 1994.

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passed by the State and respectively the Spanish autonomous communities or the Italian regions trespass upon the jurisdictional domain of the other level may only be submitted to the constitutional court by initiating the procedure for abstract review. Furthermore, we have seen that notwithstanding the availability of a purposely designed procedure, in Germany too, abstract constitutionality challenges are often used to refer jurisdictional conflicts to the Bundesverfassungsgericht, with the petitioner asserting a violation of the constitutional division of competences as the ground for review. In terms of access, both the central level and the lower echelons of government are authorised to initiate the separate procedures just mentioned and ask the court to police the vertical balance of powers. The Spanish rules also grant standing to affected individuals in the event of a negative conflict of jurisdiction (ie, those which arise when both levels of government assert that they lack power to deal with a particular issue). It should furthermore be recognised that using the procedure for abstract review to refer jurisdictional disputes to the court means that the rules on access associated with this procedure are applicable, which tend to be more generous. Thus, in Belgium, individuals can go to the Cour constitutionnelle to complain about violations of the constitutional division of competences, and in Germany, the more lenient procedure regime governing requests for abstract review of legislation has led State organs to favour this route to the Bundesverfassungsgericht over the special Bund-Länder-Streitigkeitenverfahren. At this juncture, two more general remarks concerning the role of constitutional courts in arbitrating jurisdictional conflicts are warranted. First, the various courts examined here are all located at the central level. This could lead the entities at the lower echelons to suspect the court of having a predisposition to favour the State when called upon to enforce the vertical balance of powers, with the consequence that they may wish to dispute the legitimacy of rulings handed down by the court in this regard and show reluctance in complying with such judgments.437 Feelings of a perceived central ‘bias’ can be exacerbated by the design of the applicable procedural framework.438 We have seen that in Spain and Italy, the central level enjoys more advantageous procedural rights than the Spanish autonomous communities or the Italian regions, notably as regards the grounds that the former may adduce in support of its objection to the validity of legal norms adopted by the latter. Conversely, in Germany and Belgium – countries that consider themselves to be fullyfledged federations – all levels have access to the court on equal terms. A possible way to counteract this perception is to ensure that the interests of the lower-level entities are reflected in the composition of the constitutional bench. This is an issue that will be explored in more detail in chapter four.439 Second, we should consider the prominence of institutional disputes within the court’s overall docket. In recent times, the Spanish Tribunal Constitucional and the Italian Corte 437 While judgments of constitutional courts are recognised as binding on all State organs, located at both the central and lower levels of government, the latter may seek to ignore court decisions, be sluggish in implementing them or read them very narrowly. 438 In addition, such a ‘bias’ may be reflected in the constitution itself, so that the constitutional court is simply giving effect to the constitutional settlement, rather than imposing its own reading on ‘neutral’ provisions. For instance, it has been observed in relation to the Austrian constitutional court that its ‘adjudication is perhaps rather more centralist than federalist, but this is also due to the rather centralistic concept of the Austrian Federal Constitution and to the extremely fragmented division of powers which in practice has a centripetal effect’: A Gamper and F Palermo, ‘The Constitutional Court of Austria: Modern Profiles of an Archetype of Constitutional Review’ (2008) 3 Journal of Comparative Law 64, 78. 439 ch 4, section III-B.

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costituzionale have increasingly been asked to decide cases concerning the distribution of powers and authority between the State and the regional entities. It has, for instance, been observed that the consequence of the 2001 reform of the State–regions relationship in Italy was an increase in the number of decisions enacted in this kind of review from 2% in 2002 to 24.41% in 2006. For some years (between 2003 and 2006), most of the activity of the Court was devoted – independently of the will of the Court itself, but simply as a consequence of the number of stateregions disputes – to the solution of problems of division of competences between different levels of government, more than to the guarantee of fundamental rights.440

But it is not just a matter of quantity. Both courts have faced politically delicate issues when called upon to chart the boundary between central and regional authority. More par ticularly, they have had to deal with controversial questions concerning the constitutional permissibility of the Italian regional statuti and the Spanish Statutes of Autonomy, in which the lower level entities seek to express political beliefs and assert their self-government to a greater extent than previously.441 By comparison, for the Belgian Cour constitutionnelle and the German Bundesverfassungsgericht enforcing respect for the vertical distribution of competences is only a small part of their work in practice. The reason may be found in the greater willingness of the affected State organs to resolve disagreements in the political rather than the judicial arena. For example, it has been argued as regards Germany that Most federal-state conflicts do not end up before the Court, resolving themselves politically through the mechanisms of cooperative federalism and various forms of coordinated activity among the Länder. Even when governed by different political parties, the federation and Länder have preferred bargaining over litigation as the usual method of settling their differences.442

The low profile of federal–state conflicts in the Bundesverfassungsgericht’s docket has also been attributed to a ‘decline in importance of the Länder’ and the growing links between political parties at the federal and the federated level.443 ii. Enforcing the Horizontal Balance of Powers Turning from the vertical to the horizontal separation of powers, this section explores the role of courts in resolving jurisdictional disputes between State institutions located at the central level. The constitutional courts in France, Spain, Italy, Germany, Poland and Hungary are conferred the power to maintain the horizontal allocation of responsibilities and duties. France We saw in the previous chapter that the creation of the French Conseil constitutionnel was prompted by the wish of General de Gaulle to prevent Parliament from intruding upon the 440 T Groppi, ‘The Italian Constitutional Court: Towards a “Multilevel System” of Constitutional Review?’ (2008) 3 Journal of Comparative Law 100, 114, referring to Del Duca and Del Duca, ‘An Italian Federalism?’ (n 180). 441 For Italy, see the decisions listed in n 189; for Spain, see eg sentencia 247/2007 of 12 December 2008 and in particular sentencia 31/2010 of 28 June 2010. 442 Kommers and Miller, The Constitutional Jurisprudence of the Federal Republic of Germany (n 326) 128. 443 K von Beyme, ‘The German Constitutional Court in an Uneasy Triangle between Parliament, Government and the Federal Laender’ in Sadurski (ed), Constitutional Justice, East and West (n 113) 106.

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separate sphere of executive lawmaking established by the 1958 constitution.444 Article 34 of the constitution accordingly enumerates the subject matters in relation to which Parliament may enact statutes and Article 37 determines that all other matters fall within the executive’s sphere of rule-making. The Conseil constitutionnel was cast as the arbiter of boundary disputes. There are three procedural means that allow it to carry out its role as umpire. First, the prime minister may ask the Conseil constitutionnel to ‘delegalise’ legislative texts445 by declaring that their subject matter is within the realm of executive lawmaking, thereby allowing the government to amend or abrogate these texts by decree (décret).446 Delegalisation is only possible for parliamentary enactments passed after the 1958 constitution entered into force, because earlier laws are automatically reclassified. The Conseil constitutionnel must hand down its decision within one month, unless the government declares the matter to be urgent, in which case an eight-day deadline applies. Prime ministers have used this procedure with some regularity. Second, during the course of the legislative procedure, the government may object to a bill or amendment proposed by an MP on the ground that concerns a matter which comes within the executive’s sphere of competence. If the president of the National Assembly disagrees with this view, the issue may be submitted to the Conseil constitutionnel, which must come to a decision within eight days.447 This procedure has however largely fallen out of favour, because the government can avail itself of other ‘simpler’ instruments to achieve the same goal, such as appealing to the discipline of the parliamentary majority or not including the bill or amendment on the agenda.448 Third, the government – acting through the prime minister – has standing to contest the validity of statutes adopted by Parliament before they are promulgated by filing an a priori constitutionality challenge, as explained above.449 It would appear that the prime minister would be able to assert, in the context of this procedure, that a given statute is unconstitutional on the ground that it violates the constitutional allocation of powers. However, in 1982, the Conseil constitutionnel decided differently and held that the government may only avail itself of the two mechanisms just set out to safeguard its autonomous regulatory domain against encroachment by Parliament.450 It ought to be pointed out that the Conseil constitutionnel in its case law has steadily shifted the boundary between Articles 34 and 37 in favour of the former, thus expanding Parliament’s realm.451 The comprehensive reform of the French constitution in 2008, which inter alia introduced the preliminary reference procedure, also modified the original

ch 2, section III-A(ii). This notion covers laws adopted by Parliament pursuant to Art 34 of the French constitution and ordinances passed by the government following a delegation of legislative competences by Parliament, whereby the latter reserves the competence to ratify these ordinances so that they become laws as per Art 38 of the French constitution. 446 French constitution, Art 37(2); Ordinance no 58-1067 on the Constitutional Council (as amended), ss 24–26. 447 French constitution, Art 41; Ordinance no 58-1067 on the Constitutional Council (as amended), ss 27–29. 448 Rousseau, Droit du contentieux constitutionnel (n 57) 330. 449 See the discussion of France in section III-A(i)(a). 450 Décision no 82-143 DC of 30 June 1982. 451 Rousseau, Droit du contentieux constitutionnel (n 57) 322–29; M Rogoff, ‘Fifty Years of Constitutional Evolution in France: The 2008 Amendments and Beyond’ (2011) 6 Ius politicum: revue de droit politique 1, 18–20. 444 445

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constitutional division of powers scheme.452 The relationship between the executive and Parliament has been ‘rebalanced’, with the upshot that the constitution in its current version ‘place[s] Parliament in a considerably stronger position vis-à-vis the executive branch than formerly and enhance[s] its ability to be a political (rather than a mere technical) participant in the policy-making process if it has the will to act as such’.453 Spain In addition to its role as an arbiter in conflicts between the State and the autonomous communities, the Spanish Tribunal Constitucional is also competent to take cognisance of litigation between the institutions at the central level concerning their responsibilities and duties.454 Claims that the horizontal separation of powers has been breached can be filed exclusively by the government, the two Houses of Parliament and the general council of the judiciary, all of whom can appear as possible applicants and defendants in the context of this procedure. The institution which believes that its competences have been wrongfully usurped by another State organ must first ask the latter to revoke the allegedly unconstitutional act, before being able to submit the matter to the Tribunal Constitucional. This procedure is insignificant in constitutional practice: according to the statistics available on the latter’s website, it received not a single request to resolve jurisdictional conflicts between organs of the State between 2007 and 2011.455 Italy The Corte costituzionale is likewise given the function of preserving the constitutional division of powers among institutions at the State level.456 Interestingly, neither the constitution nor the legislation pertaining to the Corte costituzionale’s organisation and functioning indicate which organs of the State have standing to initiate litigation in this regard. It has thus fallen to the Corte costituzionale to decide who is able to bring boundary conflicts to its attention. The relevant case law shows that it uses various factors in making this determination, namely whether there is a constitutional provision mentioning the State organ by name; whether the organ has its own jurisdiction; whether it is autonomous or independent; and whether its actions can be attributed to the Italian State. The Corte costituzionale has recognised that the House of Representatives, the Senate, the Council of Ministers and every ordinary court457 have access to the constitutional courtroom to safeguard their competences and authority, since they are considered to be the core representatives of the three branches of government. In addition, the following organs of State are also able to lodge a

452 Constitutional Act No 2008-724 of 23 July 2008 modernising the Institutions of the Fifth Republic; see also the preparatory report of the comité de réflexion et de proposition sur la modernisation et le rééquilibrage des institutions de la Ve République, Une Ve République plus démocratique, notably the section on ‘un Parlement renforcé’ (a strengthened Parliament) and the decree of then president Sarkozy of 18 July establishing this committee and setting out its mandate. 453 Rogoff, ‘Fifty Years of Constitutional Evolution in France’ (n 451) 34. 454 This competence is not mentioned in the Spanish constitution, but conferred on the Tribunal Constitucional by Organic Law 2/1979 on the Constitutional Tribunal, Arts 2(1)(d) and 59(1). 455 For an example of an important decision of the Spanish tribunal that involved judicial litigation between State organs, see sentencia 45/1986 of 17 April 1986, involving three challenges brought by the general council of the judiciary directed against Organic Law 6/1985 on the judiciary. All challenges were dismissed. More generally on this head of jurisdiction, see eg A Gómez, El conflicto entre órganos constitucionales (Madrid, Centro de Estudios Políticos y Constitucionales, 1992). 456 Italian constitution, Art 134 third indent; Law no 87/1953, Art 37. 457 Sentenza 231/1975 of 22 October 1975.

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petition asserting an infringement of the horizontal balance of powers: the president;458 the prime minister and other individual ministers;459 the superior council of the judiciary;460 the national council of economy and labour;461 and the Council of State.462 Judicial resolution of competence conflicts involves two stages. The Corte costituzionale first decides in camera on the admissibility of the petition by means of a separate order (ordinanza). In the event of an affirmative answer, it proceeds to deal with the merits of the case and invites submissions of affected organs of State. There is no deadline by which boundary disputes must be brought to the court. Generally speaking, there has been an increase in the number of claims concerning the constitutional allocation of competences filed with the Corte costituzionale in recent years, which appear to be related to changes to the design and functioning of Italy’s political system and the politicians in power.463 Germany Like its Spanish colleague, the Bundesverfassungsgericht performs the function of judicial umpire in federal–Länder disputes and also arbitrates conflicts regarding the horizontal balance of power, the so-called Organstreiten.464 The procedure established for this purpose enables organs of the State to vindicate their constitutional rights that have allegedly been harmed or directly jeopardised by a concrete act or omission committed by another federal organ.465 Competence litigation can be initiated by the federal president, the federal government, and the two Houses of Parliament (the Bundestag and the Bundesrat) and sections thereof vested with independent rights by the Basic Law or parliamentary standing orders.466 This last category is quite broad. It encompasses, firstly, those parliamentary committees and bodies whose establishment is called for by the Basic Law itself, that is to say: the committee on the European Union (Art 45), the committees on foreign affairs and defence (Art 45a), the parliamentary commissioner for the armed forces (Art 45b) and the petitions committee (Art 45c), as well as parliamentary factions, which may act as agents on behalf of the Bundestag as a whole. Secondly, political parties have standing to bring Organstreitverfahren to enable them to perform their constitutionally assigned role of participating in the formation of the will of the people.467 This covers both parties that are represented in the Bundestag and those that are not but which allege a violation of their 458 Sentenza 200/2006 of 3 May 2006. The office of the president is dealt with in part II, title II of the Italian constitution and his duties are enumerated mostly in Art 87. 459 The prime minister and the minister of justice are specifically mentioned in the constitution (in Arts 95 and 110 respectively). In sentenza 7/1996 of 6 December 1995, the Corte costituzionale found that other individual ministers also had standing to file petitions alleging a violation of the horizontal separation of powers. 460 See Italian constitution, Arts 104–05, explicitly mentioning this body by name and defining its competence as having a monopoly on appointing, assigning, moving, promoting and disciplining members of the judiciary. 461 The national council is dealt with in Art 99 of the Italian constitution. It offers advice to Parliament and government and has the right to initiate legislation and contribute to economic and social laws according to the principles and limits defined by law. 462 See Italian constitution, Art 100, providing that the Council of State gives advice on legal-administrative matters and ensures justice in the operation of the public administration. In addition, it is stipulated that the council must be independent and free from government interference. 463 For instance, there has been a series of decisions concerning the scope of parliamentary immunity, initiated by individual courts, with the Chamber of Deputies or the Senate as defendant. 464 German Basic Law, Art 93(1)(1). 465 Law on the Bundesverfassungsgericht, Art 64(1). 466 ibid, Art 63. 467 See German Basic Law, Art 21. See eg BVerfG 73, 40 (1986) Party Finance VI Case.

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electoral rights (and hence their ability to win seats).468 Thirdly, individual MPs are entitled to invoke the jurisdiction of the Bundesverfassungsgericht by means of this procedure to safeguard their prerogatives.469 Applications must be submitted to the German court within six months of the allegedly unconstitutional act or omission becoming known to the petitioner.470 The Bundesverfassungsgericht has handed down several significant decisions in the context of Organstreitverfahren, including two judgments regarding the situations in which it is constitutionally permissible to dissolve the Bundestag.471 Poland Article 189 of the Polish constitution gives the Trybunał Konstytucyjny a role in policing the horizontal division of competences.472 Similar to what we saw earlier in relation to the procedural framework governing the Spanish Tribunal Constitucional’s task to settle disagreements between the State and the autonomous communities, the applicable rules maintain an explicit distinction between ‘positive’ and ‘negative’ conflicts of jurisdiction.473 The upshot is that the claim submitted to the Trybunał Konstytucyjny must be concrete: organs of the State may not ask it to provide an abstract interpretation of the constitutional provisions outlining their respective duties and responsibilities. The dispute must moreover be genuine and may not involve a hypothetical difference of opinion as regards the meaning to be given to a particular constitutional clause. Conflicts concerning the horizontal distribution of powers can be referred to the Trybunał Konstytucyjny by the president, the presidents of both Houses of Parliament, the prime minister, 50 deputies or 30 senators, the chief justices of the two highest courts, the public prosecutor general, the president of the supreme chamber of control (the central audit body), and the commissioner for citizens’ rights (basically, an ombudsman). This procedure is seldom initiated. A noteworthy example involves a case from 2009, in which the Trybunał Konstytucyjny was asked to determine whether the president of the republic or the prime minister was authorised by the constitution to represent Poland at meetings of the European Council.474 Hungary The Hungarian Alkotmánybíróság can be petitioned by all organs of the State, with the exception of courts and public administrative authorities, to guarantee the constitutional separation of powers.475 The court’s authority to take cognisance of such requests is not 468 BVerfG 4 27 (1954) Plenum Party Case. Complaints can, for instance, assert that the political party has wrongly been deprived of the right to be included on the electoral lists. 469 This covers their rights and entitlements laid down in Arts 46–48 of the German Basic Law (dealing with parliamentary immunities, refusal to give evidence, leave to campaign, the right to accept and exercise the function of MP and the right to remuneration) and their rights under the rules of procedure of the Bundestag, eg on speaking time or the right to serve in a parliamentary committee. See eg BVerfG 80, 188 (1989) Wüppesahl Case. 470 Law on the Bundesverfassungsgericht, Art 64(3). 471 BVerfG 62, 1 (1984) First Parliamentary Dissolution Case; BVerfG 114, 121 (2005). On the later judgment, see S Apel, C Körber and T Wihl, ‘The Decision of the German Federal Constitutional Court of 25 August 2005 regarding the Dissolution of the National Parliament’ (2005) 6 German Law Journal 1243. Excerpts from both judgments in English, placed in their political context, can be found in Kommers and Miller, The Constitutional Jurisprudence of the Federal Republic of Germany (n 326) 154–62. 472 The constitutional tribunal has clarified that its jurisdiction is not confined to deciding on the proper allocation of competences laid down in the constitution, but also includes disputes over powers set out in subconstitutional norms. 473 Constitutional Tribunal Act, Art 53(1). 474 Decision Kpt 2/08 of 20 May 2009. 475 Act CLI of 2011 on the Constitutional Court, Art 36.

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established in the Fundamental Law, but in the Act regulating its organisation and functioning. This, combined with the scarcity of provisions in the latter document regarding this task, seems to suggest that the draftsmen do not intend the resolution of controversies among State institutions to be a central function of the Alkotmánybíróság. Comparative Remarks The first – and main – point of note concerns the selection of public institutions entitled to invoke the constitutional court’s jurisdiction regarding the horizontal division of responsibilities and duties. France clearly has the most restrictive regime, with access granted only to the prime minister and the president of the National Assembly. The institutions with standing before the Spanish Tribunal Constitucional can arguably be seen as the core representatives of Montesquieu’s three branches of government, while political parties (Germany), the Council of State (Italy) or the ombudsman (Poland) – to name just a few – are less obvious candidates as petitioners under classic horizontal separation of powers schemes. It is, furthermore, interesting to see that the relevant rules differ in their degree of precision. Those in France, Spain and Poland explicitly mention the various organs of State that are entitled to go to court to assert a violation of the constitutional scheme. Conversely, the German Bundesverfassungsgericht and the Italian Corte costituzionale have more latitude in this regard: the former can judicially establish the personal scope of the category ‘sections of the Bundestag or Bundesrat vested with independent rights’, while the latter is totally unencumbered due to the absence of any specific constitutional or legislative guidance as to the make-up of the selection of petitioners that may refer competence conflicts to it. The Hungarian Alkotmánybíróság arguably also has some room for manoeuvre in deciding which public institutions and bodies – apart from regular courts and administrative authorities – qualify as ‘organs of the State’ and hence have capacity to litigate perceived breaches of the constitutional division of powers scheme. At the same time, constitutional courts are infrequently invited to chart and police the boundaries between State institutions located at the central level. The likelihood of serious disagreements or rifts between organs of the State that can activate this procedure appears relatively slim in parliamentary democracies. In turn, this means that bargaining and negotiation are often feasible strategies to resolve any disagreements or controversies within the political arena, without there being a need to have recourse to constitutional litigation.

D. Ensuring the Integrity of Political Office and Related Processes A final function that countries may entrust to constitutional courts is that of ensuring the integrity of political office and related processes. Constitutional courts can be given responsibility for examining whether the conditions for participation in the exercise of political power have been met, or, conversely, whether a public office has been forfeited by constitutionally objectionable behaviour. It is possible to identify four tasks which constitutional courts can perform that can be considered as falling within this particular aim of constitutional adjudication. They may have jurisdiction to hear electoral disputes (section i); be competent to adjudicate presidential impeachment cases (section ii); decide whether political parties should be banned (section iii); or verify the regularity and constitutionality of

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referendums (section iv). It is important to bear in mind that, whereas it is customary for a constitutional court to have the power to keep the legislature in check by reviewing the constitutionality of laws, this may not be the case as regards ensuring the integrity of political office and related processes. In other words, not every country’s constitutional court discharges this function. Also, we will see that those courts that can perform (some of) the tasks mentioned above may share responsibility for doing so with the political branches of government. The reason for these observations is that the rules relating to the four aforementioned tasks may be found in the constitution, but, likewise, may also be found in nonconstitutional texts such as ordinary statutes or parliamentary standing orders. As such, legal systems may not perceive these tasks as predominantly or sufficiently ‘constitutional’ in nature so as to warrant the involvement of the constitutional court and instead decide to (also) vest other State organs with the jurisdiction to deal with them. i. Hearing Electoral Disputes Some European constitutional courts are authorised to decide on the legality of parliamentary or presidential elections. This may include determining whether a person has been validly elected as a Member of Parliament or as the country’s president. Of the countries examined, Germany, the Czech Republic and France have given their courts jurisdiction to hear electoral disputes. Germany Germany adopts a two-tiered system regarding parliamentary electoral contests. Under Article 41(1) of the Basic Law, the German Bundestag decides the validity of its own elections and whether an MP is entitled to retain her seat.476 If the prerequisites are met, these determinations by the Bundestag may thereafter be contested before the Bundesverfassungsgericht.477 Those entitled to initiate proceedings before the German court are the affected MP, any parliamentary faction (comprising at least one-tenth of the total number of MPs) and individual voters whose electoral objection has been dismissed by the Bundestag, provided that their petition is supported by at least 100 eligible voters.478 Complaints must be filed within two months of the Bundestag’s decision on the initial electoral petition. It has been observed that the Bundesverfassungsgericht tends to confirm the contested decision, which can be explained in large part by the way in which the German court has conceived its role in the adjudication of electoral petitions: it ‘has excluded from its Article 41 inquiries election challenges that assert subjective rights, focusing instead on the objective right to a properly administered election. That is to say, the Court addresses only “the validity of the election as such”.’479 It should be noted that petitioners may also assert the unconstitutionality of the under lying electoral legislation in their claim and ask the Bundesverfassungsgericht to review the pertinent statutes in the light of the Basic Law. This happened successfully in a high profile case in 2008, when the German court found that various provisions of the federal 476 It does so through the establishment of a special parliamentary committee, the election scrutiny board (the Wahlprüfungsausschuss), which prepares the decisions of the Bundestag as a whole (Law on the Scrutiny of Elections, Art 3). 477 German Basic Law, Art 41(2). 478 Law on the Bundesverfassungsgericht, Art 48(1) and (2). 479 Kommers and Miller, The Constitutional Jurisprudence of the Federal Republic of Germany (n 326) 264, referring to BVerfG 1, 208 (1952) Schleswig-Holstein Voters’ Association Case.

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election Act were in breach of the constitutional principles of the equality and directness of elections.480 Czech Republic The Ústavní Soud is competent to receive two types of electoral petition. The first can be submitted after parliamentary elections have been held and resembles that available in Germany. The constitutional court can provide remedial action against the decisions of the lower or upper House of Parliament certifying the results of the election.481 Petitions may be submitted by the affected candidate who has allegedly failed to win a seat in Parliament, the political party of which she is a member, or members of the general public who have earlier submitted a complaint regarding the certification of the validity of a candidate’s election to the lower or upper House of Parliament.482 The matter can be referred to the Ústavní Soud within 10 days of the contested parliamentary decision and, as in Germany, the initiation of this procedure does not have suspensive effect.483 Secondly, the Ústavní Soud determines whether a sitting Member of Parliament has lost her seat,484 either because she no longer meets the eligibility criteria for election to Parliament485 or because she simultaneously holds another office incompatible with membership of Parliament.486 The right to invoke the court’s jurisdiction in this respect is given to the deputy or senator who stands to lose her seat, the president of the relevant House of Parliament and 20 deputies or 10 senators.487 France In contrast to its counterparts in Germany and the Czech Republic, the French Conseil constitutionnel not only hears challenges to the results of elections to Parliament, but also plays a role in presidential elections. The 1958 constitution gives the Conseil constitutionnel the exclusive competence to decide on contested elections for the National Assembly and the Senate, including the candidate’s eligibility to stand for election.488 This marked a change from the situation that had prevailed in the immediate past, where the relevant House of Parliament would rule on petitions regarding parliamentary elections. This form of internal control was considered not to have the desired effect since decisions taken in this regard were often inspired by partisan political concerns instead of legal and constitutional considerations. The 1958 480 BVerfG, 2 BvC 1/07 7 (2008). The case arose out of a peculiar feature of the German voting system (which allows each voter to cast two votes, one for a nation-wide list and one for a Land list): it could happen that a vote in favour of a Land party list actually had a negative impact on the overall electoral position of the party or that abstaining from voting exerted a positive effect on the party to be supported. While the unconstitutionality of the Federal Electoral Act had affected the composition of the Bundestag, the court decided against dissolving the latter. The amended provisions of the Federal Electoral Act were also declared unconstitutional by the Bundesverfassungsgericht in a ruling of 25 July 2012, 2 BvF 3/11. 481 Czech constitution, Art 87(1)(e). 482 Act on the Constitutional Court, § 85. 483 ibid, § 89. 484 Czech constitution, Art 87(1)(f). 485 ibid, Art 25(d). One of these requirements is that candidates for a seat in the lower House of Parliament must be 21 years of age, with those seeking election to the upper House of Parliament required to be at least 40 years old (Czech constitution, Art 19). Other eligibility criteria can be found in ordinary legislation. 486 Czech constitution, Art 25(f), which refers to Art 22, stipulating that the office of president and judge as well as other posts designated by statute are incompatible with membership of Parliament. 487 Act on the Constitutional Court, § 92. 488 French constitution, Art 59. Ineligibility of a candidate may arise due to a failure to respect the applicable age requirements, loss of electoral rights or failure to register on the list of candidates.

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constitution accordingly transferred responsibility for hearing parliamentary electoral petitions to the newly established Conseil constitutionnel. The right to file electoral petitions is given to registered voters as well as candidates restricted to the constituency they are contesting or within which they are registered as voters.489 Neither political parties nor state officials have standing.490 The petition must be submitted within 10 days of the declaration of the election result.491 Petitions do not have suspensive effect.492 Before the full Conseil constitutionnel rules on the electoral controversies referred to it, the petition is examined by smaller sections, comprising three members each, which adopt draft judgments regarding both the merits of the case and possible measures for redress.493 In its rulings, the Conseil constitutionnel has insisted that it only decides on the validity of the particular election to which the petition relates and that it does not review the constitutionality of the underlying electoral legislation.494 That having been said, the Conseil constitutionnel has held that it can verify the compatibility of electoral legislation with international agreements.495 When it finds in favour of the petitioner, the Conseil constitutionnel voids the disputed election or rescinds the decision of the electoral commission and proclaims the correct winner of the contested seat in Parliament.496 It should be noted, though, that the standard of review is strict: the irregularities complained of must both be serious and have had a decisive influence on the outcome of the election before the Conseil constitutionnel will be persuaded to annul the contested election result.497 Since 1962, the French president has been directly elected and by universal suffrage.498 The Conseil constitutionnel is involved at various points in time during the presidential elections and, interestingly, does not always act in a purely adjudicative capacity.499 First, it is charged with drawing up the list of eligible contenders for the presidential office and examining whether prospective candidates meet the requisite conditions to participate in the race.500 Second, the government may consult the Conseil constitutionnel on the proper organisation of the presidential election. Further, within 48 hours of the election having taken place, the Conseil constitutionnel may receive petitions submitted by voters, state officials or candidates alleging the occurrence of irregularities in the conduct of the presidential election.501 When Ordinance no 58-1067 on the Constitutional Council (as amended), s 33. Décision no 88-1040/1054 AN of 13 July 1988; Décision no 88-1043 AN of 21 June 1988. 491 Exceptionally, the Conseil constitutionnel may also admit electoral complaints before elections take place. 492 Ordinance no 58-1067 on the Constitutional Council (as amended), ss 33, 35 and 41-1. 493 ibid, ss 36–38. In deciding on the composition of each section, separate lots are drawn from among members of the Conseil constitutionnel appointed by the president, by the president of the National Assembly and by the president of the Senate. 494 Décision no 88-1046 AN of 21 October 1988. 495 Décision no 88-1082/1117 AN of 21 October 1988. The willingness of the Conseil constitutionnel to do so has been explained by pointing out that the Conseil acts as an ordinary court in this context: instead of reviewing the constitutionality of a law in the abstract, it judges the application of this law in a particular case. See Rousseau, Droit du contentieux constitutionnel (n 57) 420. 496 Ordinance no 58-1067 on the Constitutional Council (as amended), s 41. 497 Décision no 88-1081 AN of 21 October 1988; Décision no 88-1093 AN of 25 November 1988. 498 French constitution, Art 6. 499 ibid, Art 58. 500 These conditions can be found in Act 62-1292 of 6 November 1962 (as amended) on the election of the president of the republic by universal suffrage, s 3. The powers of the Conseil constitutionnel in the unusual situation where one of the presidential candidates passes away or becomes incapacitated in the run-up to or during the course of an election are laid down in the French constitution, Art 7. 501 Decree 2011-213 of 8 March 2001 implementing Act 62-1292 of 6 November 1962 relating to the election of the president of the republic by universal suffrage, s 30. Petitions submitted by voters are only admissible if they have also had their complaint recorded in the official report drawn up by the competent electoral bureau. 489 490

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the Conseil constitutionnel considers that irregularities have impeded the free or fair quality of the election, it will annul the results of the electoral bureau where the irregularity has taken place; otherwise, it will merely declare the infringement of one of the electoral rules, without imposing a sanction.502 Finally, it is the Conseil constitutionnel that officially proclaims the results of the presidential election. Comparative Remarks When comparing the competences of the three constitutional courts to hear electoral petitions, it is clear that the French Conseil constitutionnel has the most extensive jurisdiction in this regard. It plays a role in verifying the validity of both parliamentary and presidential elections503 and, in doing so, does not act solely in an adjudicatory capacity. Furthermore, within the French legal order, only the Conseil constitutionnel is competent to rule on parliamentary and presidential electoral petitions, and in practice, it delivers dozens of rulings in response to such claims every election year.504 In contrast, the German Bundesverfassungsgericht and the Czech Ústavní Soud act as appeal bodies: before eligible petitioners can invoke their jurisdiction in electoral matters, they must have contested the validity of the election before Parliament, which is competent in first instance to decide on the validity of parliamentary elections. Another, more general, point of note is that in terms of access, individuals can file petitions contesting the regularity of elections, making this one of the few procedures that gives natural persons direct access to the constitutional court. ii. Adjudicating Presidential Impeachment Constitutional courts can be given jurisdiction to adjudicate presidential impeachment cases. When performing this task, these courts are also concerned with safeguarding the integrity of political office – not by examining whether the conditions for entry have been satisfied, as when hearing electoral petitions – but by scrutinising whether the conduct of the incumbent warrants her removal from presidential office. Of the countries under examination, Italy, Germany, the Czech Republic and Hungary have entrusted their constitutional court with the power to hear impeachment proceedings. In addition, constitutional courts in Austria,505 Bulgaria,506 Lithuania,507 Portugal,508 Slovakia509 and Slovenia510 can adjudicate presidential impeachment cases.511 Rousseau, Droit du contentieux constitutionnel (n 57) 435. While Germany and the Czech Republic also have a president as their head of state, the German president is not directly elected (German Basic Law, Art 54) and although following a 2012 constitutional amendment (Czech constitution, Art 54(2)) her Czech counterpart is elected by popular vote, the Czech Ústavní Soud has not been given the power to adjudicate claims alleging that irregularities have occurred in a presidential election. 504 For instance, following the 2008 elections to the French National Assembly, 116 out of a total of 140 rulings delivered by the Conseil constitutionnel in that year concerned electoral petitions. 505 Austrian constitution, Arts 142(2)(a) and 143; Constitutional Court Act, §§ 72–81. 506 Bulgarian constitution, Arts 103(3) and 149(8); Constitutional Court Act, Arts 23–24. 507 Lithuanian constitution, Arts 74, 86(2), 105(3) and 107(3); Law on the Constitutional Court, Art 73(4). 508 Portuguese constitution, Arts 129 and 130; Law of the Constitutional Court, Art 7(b). 509 Slovak constitution, Arts 107 and 129(5); Act on the Organisation of the Constitutional Court of the Slovak Republic, on the Proceedings before the Constitutional Court and the status of its Judges, § 74. 510 Slovenian constitution, Art 109; Constitutional Court Act, Arts 63–67. 511 In Romania, the constitutional court may give an advisory opinion on a proposal by Parliament to suspend the president from office (Romanian constitution, Art 95). In Poland, the Trybunał Konstytucyjny used to be involved in impeachment proceedings, but this particular task was eliminated from its portfolio in 1992. 502 503

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Italy On application of the Parliament in joint session, and by absolute majority of its members,512 the Italian Corte costituzionale can be asked to determine whether the president of the republic has committed high treason or is guilty of an attempt to overthrow the constitution.513 The precise scope of either crime is unclear. The constitution does not further clarify what sort of behaviour amounts to high treason or an attempt to overthrow the constitution, and at the time of writing, the procedure had never been applied so there is also no case law that sheds more light on this fundamental definitional question. In addition, it is not clear what sanctions could be imposed by the Corte costituzionale if it were to find that impeachable conduct had taken place. For these reasons, it has been suggested by Italian academics that the procedure warrants revision.514 Germany The German Basic Law empowers the Bundesverfassungsgericht to rule on the impeachment of the federal president.515 Impeachment motions can be lodged by either the Bundestag or the Bundesrat, acting by a two-thirds majority of their members, and must be based on the allegation that the president has committed a ‘wilful violation’ of the Basic Law or another federal law. After the Bundestag or Bundesrat has become aware of impeachable conduct having taken place, they have only three months to bring the matter to the attention of the Bundesverfassungsgericht.516 However, once proceedings have been properly instituted, they can only be halted if the applicant House of Parliament decides to revoke the impeachment motion: the resignation or retirement of the president, or the dissolution of the Bundestag have no bearing on the proceedings.517 If the Bundesverfassungsgericht returns a guilty verdict, it may declare that the president has forfeited her office518 and issue an injunction preventing her from carrying out her functions.519 At the time of writing, this procedure had never been initiated.520 Czech Republic The Czech president enjoys a high degree of immunity, with the constitution prohibiting her detention and criminal or administrative prosecution. She may however be charged with high treason or gross violation of the Czech constitutional order by the upper House of Parliament (the Sénat), acting with the consent of the Lower House.521 Such indictments Italian constitution, Art 90(2). ibid, Art 134 third indent read together with Art 90(1). Another, related question in Italian constitutional law concerns the grant of judicial immunity to the Prime Minister. On this, see eg F Fabbrini, ‘Prime Minister Berlusconi, the Judiciary and the Duty of Loyal Cooperation in a Recent Decision of the Italian Constitutional Court’ (2011) 2 Nederlands Tijdschrift voor Constitutioneel Recht 214. 514 R Bifulco, ‘Landesgericht Italien’ in Von Bogdandy, Huber and Grabenwarter, Ius Publicum Europaeum – Band VI (n 346) under g), bb), referring to A Ruggeri and A Spadaro, Lineamenti di giustizia costituzionale, 4th edn (Turin, Giappichelli, 2009) s 3.16–3.19. 515 German Basic Law, Art 61; Law on the Bundesverfassungsgericht, Art 49(1). 516 Law on the Bundesverfassungsgericht, Art 50. 517 ibid, Art 51. 518 ibid, Art 56(2). 519 ibid, Art 53. 520 However, President Christian Wulff voluntarily stepped down from office in February 2012 over allegations that he had accepted financial favours, in the wake of calls by prosecutors for the Bundestag to lift the president’s immunity in order for criminal proceedings to be initiated against him (German Basic Law, Art 60(4) read together with Art 46(2)). 521 Both Houses of Parliament must vote in favour of the indictment with a three-fifths majority, and the Lower House must moreover give its consent within three months from the day the Upper House submitted the proposal 512 513

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are adjudicated by the Ústavní Soud, and must take priority over all other petitions before it.522 Unlike in Italy, the term ‘high treason’ is fleshed out in the statute on the Ústavní Soud as denoting behaviour by the president ‘directed against the sovereignty and territorial integrity’ and the ‘democratic order’ of the republic.523 The charges brought against the president will be dismissed only if the Sénat withdraws the application or if the incumbent passes away before the proceedings have drawn to a close.524 As is the case in Germany, resignation from the presidential office is immaterial in this respect.525 In the event that the Ústavní Soud examines the case on its merits, it may either acquit the president or find her guilty of high treason.526 In the latter event, the president automatically loses her office as well as her eligibility to run for the presidency in the future.527 In addition, she forfeits all benefits normally enjoyed by former incumbents of the post after their term of office has come to an end.528 This procedure was recently initiated for the first time. On 4 March 2013, the Czech Senate voted to commence impeachment proceedings against outgoing president Václav Klaus, in what was widely seen as a politically inspired and largely symbolic move. In a decision adopted later that same month, the Ústavní Soud however refused to examine the Senate’s petition on its merits.529 It did so on the basis that the petition was moot, since the main purpose of the procedure is to impeach a sitting president, whereas Mr Klaus had left office three days after the petition was filed. Hungary Lastly, the Hungarian constitutional court too may determine whether the president should be removed from office.530 The conduct that may warrant a motion for impeachment is defined as a wilful violation of the Fundamental Law or an ordinary statute that concerns the exercise of the president’s official functions.531 In addition, the president’s removal from office may be sought if the incumbent has committed a wilful criminal act.532 One-fifth of all Members of Parliament may propose to begin impeachment proceedings, but the decision to formally indict the head of state requires a two-thirds majority vote.533 for impeachment proceedings to it (Czech constitution, Art 65(3)). The current requirements came about following a 2012 constitutional revision, which also introduced direct popular elections for the office of the president. Until the 2012 amendment, the Sénat could decide on the initiation of impeachment proceedings without consultation with the Chamber of Deputies, acting by simple majority vote. 522 Czech constitution, Art 87(1)(g) read together with Art 65(2). 523 Act on the Constitutional Court, § 96. 524 ibid, § 98(1) and (2). However, the surviving relatives may insist that the proceedings are nevertheless continued. 525 ibid, § 98(3). 526 ibid, § 104(1). 527 Czech constitution, Art 65(2). The convicted ex-president may request that the proceedings be re-opened if the judgment of the Ústavní Soud was influenced by the criminal act of another person or if she adduces new facts or evidence that she was unable to present during the initial proceedings. Should the Ústavní Soud overturn its initial ruling, the person concerned is however not able to reclaim the lost presidency: Act on the Constitutional Court, §§ 105 and 107. 528 Act on the Constitutional Court, § 104(2). 529 Judgment Pl ÚS 17/13 of 27 March 2013. 530 Hungarian Fundamental Law, Art 13; Act CLI of 2011 on the Constitutional Court, Art 35. The Alkotmánybíróság also enjoyed this power under the previous Hungarian constitution, Art 31/A(5) and the procedure prescribed by that provision was virtually the same as that currently found in Art 13. 531 Failure to mention one of these grounds in the motion for impeachment means that the constitutional court will immediately terminate the proceedings without examining the merits of the case. 532 Hungarian Fundamental Law, Art 13(2). In addition, proceedings under ordinary criminal law can be initiated against the president after her mandate has come to an end. 533 ibid, Art 13(2) and (3). The vote in Parliament should be held by secret ballot.

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The Fundamental Law explicitly bars the president from exercising her duties and responsibilities while impeachment proceedings are ongoing.534 The Alkotmánybíróság must decide by a two-thirds majority of its judges whether it confirms the charges and establishes the constitutional liability of the president, with the result that the latter may indeed have to step down. The Hungarian court has, to date, never been asked to adjudicate a presidential impeachment case. Comparative Remarks Impeachment procedures are – understandably – arduous to initiate and complete. Parliamentary motions for impeachment usually need to be carried by a substantial majority in the competent House(s) of Parliament and there is a very high threshold in terms of the behaviour that is considered impeachable. Since the relevant provisions are to a lesser or greater degree imprecise in articulating this threshold, this means that the different constitutional courts all have some leeway in determining exactly what form of gross misconduct must have taken place for impeachment petitions to be successful. This is most notably the case for the Italian Corte costituzionale, but even the Czech Ústavní Soud will have to determine the meaning of the term ‘democratic order’ before it can assess whether the president’s behaviour amounts to high treason. In addition, it is important to note that the formulations of the impeachment standard in Germany and Hungary may require their respective constitutional courts to interpret and apply ordinary law next to the pertinent provisions of the constitution. It is certainly not common practice for constitutional courts to be asked to preside over impeachment trials. A rare example of a successful impeachment case did however take place in Lithuania. The relevant constitutional provisions stipulate that the Lithuanian Parliament (the Seimas) can set the procedure in motion by filing a petition with the Lithuanian constitutional court (Konstitucinis Teismas), which must determine whether the conduct complained is impeachable because it grossly violates the constitution or the presidential constitutional oath.535 If the Konstitucinis Teismas finds that the threshold for impeachment has been met, Parliament can decide to remove the president from office.536 In early 2004, the Seimas petitioned the Konstitucinis Teismas for a determination as to whether the then president, Rolandas Paksas, had breached the constitution. More specifically, President Paksas was accused of granting Lithuanian citizenship to a Russian businessman in return for contributions to his electoral campaign,537 informing said businessman of a state security investigation into his dealings, and interfering in a privatisation deal for the financial benefit of people close to him. The Konstitucinis Teismas found that these acts amounted to impeachable offences538 and the Parliament thereupon voted to oust Mr Paksas.539 ibid, Art 13(4). Lithuanian constitution, Art 105(3); Law on the Constitutional Court, Art 73(4). 536 Lithuanian constitution, Arts 74, 86(2) and 107(3). Parliament cannot reject, change or amend the decision of the constitutional court that the president has commit a breach of the constitution: Case no 14/04 of 31 March 2004. 537 This act was carried out by means of a special presidential decree, which Parliament referred to the constitutional court for examination and which was found to be unconstitutional on various grounds in Case no 40/03 of 30 December 2003. 538 Case no 14/04 of 31 March 2004. 539 This incident also had an interesting aftermath, involving the European Court of Human Rights. Shortly after the successful impeachment process, Parliament amended the Presidential Elections Act to ban persons who had been removed from office from standing in presidential elections for a five-year period. When this amendment was referred to the constitutional court for scrutiny, the time limit was declared unconstitutional: the court held that a person who has successfully been impeached may never again hold an office that requires her to take an oath in accordance with the constitution, explicitly listing as examples of such offices that of president, 534 535

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iii. Proscribing Political Parties Political parties are important structures for the exercise of the right of freedom of association, the realisation of the political aspirations of individuals and facilitating popular involvement in shaping state policy. At the same time, a number of countries also recognise that there may be a need to verify the constitutionality of political parties,540 usually to protect the very existence of their democratic order from being endangered by perceived non- democratic parties541 – whereby the determination of what qualifies as such may differ by country, in light of its past experiences. Of the countries examined in this book, Germany, the Czech Republic, Poland and Spain contemplate a role for their constitutional court in deciding whether political parties can (continue to) participate in the political life of the country. Their counterparts in Bulgaria,542 Portugal,543 Slovakia544 and Slovenia545 also enjoy jurisdiction in this respect. Germany Pursuant to Article 21(2) of the Basic Law, the Bundesverfassungsgericht may declare unconstitutional political parties that seek to harm or eradicate the free democratic basic order546 or threaten the existence of the Federal Republic of Germany. In determining whether such is the case, the German court may consider both the stated objectives of the party and the actual conduct of its members. Petitions for the banning of a party may be submitted by the Bundestag, the Bundesrat or the federal government, and if the party’s activities are confined to a single Land, also by the Land government.547 This procedure has been initiated on only a handful of occasions. In 1952 and 1956, the Bundesverfassungsgericht declared the Nazi Socialist Reich Party and the Communist Party unconstitutional in response to motions filed by the federal government.548 Subsequent applications to have a party declared unconstitutional have all been unsuccessful. Thus, in 1994 party-banning procedures initiated by the federal government and the Bundesrat to outlaw the Free German Workers Party and by the Land Hessen to prohibit the National List were rejected as inadmissible, because the associations concerned did not qualify as political parties within the meaning of Article 21 of the Basic Law.549 Most recently, in 2000, the Bundestag, the Bundesrat and the federal government sought a constitutional ban on

member of the government, MP and national audit officer: Case no 24/04 of 25 May 2004. Some time later, Parliament also amended the Parliamentary Elections Act disqualifying impeached persons from standing as candidates in parliamentary elections. Mr Paksas filed a challenge with the European Court of Human Rights, which decided in his favour, holding that ‘the permanent and irreversible nature of the disqualification’ was disproportionate: Paksas v Lithuania App no 34932/04 (ECtHR, 6 January 2011). 540 This book will not discuss other requirements with which political parties may have to comply, for instance when it comes to their financing, on which see eg V Gasca, The Individual and Political Participation in the EU and its Member States (Oxford, Hart Publishing, 2014). 541 This head of jurisdiction is closely related to notions of militant democracy. On this notion, see eg A Sajó (ed), Militant Democracy (Utrecht, Eleven International, 2004). 542 Bulgarian constitution, Art 149(5); Constitutional Court Act, Art 12(1)(5). 543 Portuguese constitution, Art 223(e); Law of the Constitutional Court, Art 9. 544 Slovak constitution, Art 129(4). 545 Slovenian constitution, Art 160; Constitutional Court Act, Art 68. 546 This refers to Arts 1, 20 and 79(3) of the German Basic Law. 547 Law on the Bundesverfassungsgericht, Art 43. 548 BVerfG 2, 1 (1952) Socialist Reich Party Case; BVerfG 5, 85 (1956) Communist Party Case. 549 BVerfG 91, 276 (1994) Free German Workers Party; BVerfG 91, 262 (1994) National List. See also Art 2(1) of the Political Parties Act.

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the extreme right-wing National Democratic Party. The Bundesverfassungsgericht however dismissed their petition, without ruling on the merits of the case, after it transpired that the evidence relied on in the petition was partly based on statements made by informants for the German secret service.550 As a result, three of the judges expressed their concern that a fair process could no longer be guaranteed and this meant that it was no longer possible to reach the two-thirds majority (six out of eight justices) that is required for decisions in party-banning proceedings.551 When the Bundesverfassungsgericht finds that the application is well-founded, it must declare the party unconstitutional.552 This entails that the party is dissolved and is furthermore barred from continuing its activities in any alternative manifestation, for instance through substitute or successor organisations.553 In addition, the banned party’s property can be confiscated for the public benefit and those persons who represent the party in the federal Parliament or in legislative assemblies at the Land level will lose their seat.554 Czech Republic In the Czech Republic, the government is responsible for maintaining a register of political parties and deciding whether to allow the registration of new parties or changes to their statutes. Its decisions in this context can be challenged before the supreme court. In addition, the government is the only State organ competent to apply to the supreme administrative court to have a political party banned.555 The role of the Czech Ústavní Soud consists of hearing appeals against the decisions taken by the two supreme courts at the behest of the affected political party.556 The Ústavní Soud will examine whether the impugned judgment comports with the Czech constitutional order and relevant parliamentary statutes.557 Political parties must file their claim with the constitutional court within 30 days of the supreme court’s ruling; and the initiation of such proceedings has suspensive effect.558 The Ústavní Soud is required to sit as a full court when adjudicating party-banning cases.559 If it confirms the ruling of the supreme administrative court, the affected party loses its legal personality and is removed from the register of political parties. When the Ústavní Soud upholds the finding of the supreme court, the party in question may not be entered onto the register. 550 BVerfG, 2 BvB 1/01 (2003) National Democratic Party Germany. Ironically, the agency involved was the Bundesamt für Verfassungsschutz (the federal agency charge with protecting the constitution). German newspapers were scathing in their criticism of the conduct of the authorities. 551 Law on the Bundesverfassungsgericht, Art 15(4). In December 2012, the Bundesrat again voted in favour of submitting a request to the Bundesverfassungsgericht to ban the National Democratic Party. 552 ibid, Art 46(1). 553 See also the Political Parties Act, Art 33. 554 For the Bundestag, see Federal Electoral Law, Art 46(1) sub 5. 555 The parameters for deciding requests for party-banning can be found in the Czech constitution, Art 5 and Law 424/1991 on association in political parties and political movements, Arts 4–5. The supreme administrative court applies a four-part test: (i) the party must have engaged in illegal activities (ii) which are attributable to the party (iii) and represent an imminent and sufficiently grave threat to the Czech political system; and (iv) dissolution must be a proportionate measure to neutralise this threat: judgment Pst-1/2008. In addition, political parties may be dissolved for failing to submit annual financial statements to the Chamber of Deputies. 556 This procedure is designed as a specific version of the general constitutional complaint procedure: the relevant rules can be found in the same section of the Act on the Constitutional Court and several provisions of the latter act apply both to complaints filed by individuals alleging an encroachment upon their fundamental rights by a public authority and to complaints filed by political parties disputing refusals to register or banning orders. 557 Czech constitution, Art 87(1)(j); Act on the Constitutional Court, § 73. 558 Act on the Constitutional Court, § 79(1). 559 ibid, § 11(2)(e).

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To date, the Ústavní Soud has been asked to verify the legality of judgments pertaining to the constitutionality of political parties and their activities on two occasions. In 2001, the Liberal Party (Liberální Strana) challenged a ruling of the supreme court upholding the decision of the ministry to refuse to formally register it. The Ústavní Soud however declared the petition manifestly ill-founded, holding that the ministry and the supreme court had not violated the party’s constitutional rights in their respective decisions.560 Nine years later, the Czech Workers’ Party (Dělnická strana) sought to have the judgment of the supreme administrative court ordering its dissolution quashed. The constitutional court also rejected this complaint, endorsing the findings of the supreme administrative court that the party propagated neo-Nazi ideology and had ties to illegal militant groups.561 Having lost before the constitutional court, both the Liberal Party and the Workers’ Party subsequently took their case to the European Court of Human Rights. Although the former has won in Strasbourg, with the European Court of Human Rights finding that its right to freedom of association had been violated, it never continued its activities on the Czech political plane.562 No decision has as yet been handed down regarding the application filed by the Workers’ Party.563 Poland There are two ways in which the Polish Trybunał Konstytucyjny can become involved in litigation concerning the constitutionality of political parties and their programs. First, it can receive petitions asking for a review of the constitutionality of the statute and activities carried out by parties that are already active on the political scene.564 A large number of public bodies is granted access to the Trybunał Konstytucyjny for this purpose. More specifically, claims can be filed by the same institutions and officials that are entitled to challenge the constitutionality of laws in the abstract, namely: the president, the presidents of both Houses of Parliament, the prime minister, 50 deputies or 30 senators, the chief justices of the supreme court and of the chief administrative court, the public prosecutor general, the president of the supreme chamber of control (the central audit body), and the commissioner for citizens’ rights (basically, an ombudsman). The Trybunał Konstytucyjny is enjoined to decide petitions concerning the alleged unconstitutionality of a party’s articles of association or program using the procedure for adjudicating abstract constitutionality challenges.565 When the claim relates to the perceived unconstitutionality of activities carried out by a political party, the Polish tribunal applies the relevant provisions laid down in the Code of Criminal Procedure by analogy.566 Second, in the only case on party-banning to have reached it to date, the Trybunał Konstytucyjny has clarified that it can also evaluate the constitutionality of programs of polit Judgment of 6 November 2002. Judgment Pl ÚS 13/10 of 27 May 2010. The government had initially made a request for the dissolution of the party on 5 December 2008, which was rejected by the supreme court on 4 March 2009 as ill-founded, because the government had failed to discharge its burden of proof. A second request was filed later that same year, which was successful. On this case and the procedure leading up to the judgment of the constitutional court, see M Mares, ‘Czech Militant Democracy in Action: Dissolution of the Workers’ Party and the Wider Context of this Act’ (2011) 20 East European Politics and Societies 1. 562 Linkov v Czech Republic App no 10504/03 (ECtHR, 7 December 2006). 563 Deˇlnická Strana and Tomáš Vandas v Czech Republic App no 70254/10, lodged on 25 November 2010. 564 Polish constitution, Art 188(4); Constitutional Tribunal Act, Art 2(1)(6). 565 Constitutional Tribunal Act, Art 56. 566 ibid, Art 57(1). The Trybunał Konstytucyjny may ask the public prosecutor to conduct a criminal investigation into the activities of a political party for evidentiary purposes (Constitutional Tribunal Act, Art 59). 560 561

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ical parties a priori at the request of the Warsaw district court.567 The latter maintains a record of all duly registered Polish political parties. If the Warsaw district court receives an application for registration or for amendment of a program, and it is uncertain about the conformity of the new statute or modification thereof with the constitutional order, it must refer the matter to the Trybunał Konstytucyjny.568 To be clear, the Warsaw district court is thus only entitled to ask the constitutional tribunal for preventive review of a party’s program: it cannot request the latter to supervise the conduct of political parties during their existence. The grounds on which the Trybunał Konstytucyjny examines the constitutionality of the aims and activities of political parties are set out in Articles 11, 13 and 58 of the Polish constitution. These provisions stipulate that membership of political parties should be voluntary and pay respect to the equality of all Polish citizens; and that parties are conceived as structures enabling democratic participation in the exercise of state power. Party programs based upon totalitarianism, National Socialism, Fascism and Communism and those that are contrary to the constitution are explicitly outlawed. The same applies to political parties that, either in their articles of association or behaviour, approve of racial or national hatred, condone the use of force to gain power or influence state policy, and those whose internal structure and membership are kept secret. In the only ruling in a party-banning case to date, the Trybunał Konstytucyjny further explained that there must be a ‘clear and unambiguous inconsistency’ with the constitutional provisions just mentioned before it will find a violation of the constitutional clauses just mentioned.569 As in the Czech Republic, party-banning cases are determined by a full bench, comprising all judges of the Trybunał Konstytucyjny.570 When the Polish tribunal hands down a declaration of constitutional non-conformity, the political party concerned is refused registration (in the case of preventive scrutiny) or removed from the registry of political parties and liquidated. Spain In Spain, a special chamber of the supreme court (Tribunal Supremo) is invested with jurisdiction to order the dissolution of political parties that by their activities repeatedly and seriously violate democratic principles or seek to impair or destroy the system of fundamental rights and freedoms.571 Applications seeking the banning of political parties can be brought by the public prosecutor or the government, of its own motion or at the request of one of the Houses of Parliament.572 Rulings delivered by the special chamber of the Tribunal Supremo upon completion of the proceedings are not subject to appeal, but the affected 567 Decision of 8 March 2000, Pp 1/99, Chairman’s powers within the ‘Christian Democratic Party of the Third Polish Republic’. The overarching legal question in that case was whether the fact that the Political Parties Act, permitting constitutionality control of political parties at the time they seek registration, had entered into force prior to the entry into force of the 1997 constitution, meant that its provisions had been superseded by those in the constitution. The Trybunał Konstytucyjny answered in the negative. 568 Political Parties Act, Arts 14 and 21. 569 Decision of 8 March 2000, Pp 1/99, Chairman’s powers (n 567). On the facts of the case, the Trybunał Konstytucyjny found that while the compatibility of the party’s articles of association with the constitution was questionable, the threshold of a clear and unambiguous inconsistency was not met. 570 Constitutional Tribunal Act, Art 25(1)(1)(c). 571 Organic Law 6/2002 on political parties of 27 June 2002. In addition, the Spanish public prosecutor may ask the criminal chamber of the supreme court to suspend and declare illegal political parties that have committed criminal offences. For a description of this legislation and its background, see L Turano, ‘Spain: Banning Political Parties as a Response to Basque Terrorism’ (2003) 1 International Journal of Constitutional Law 730. 572 Organic Law 6/2002, Art 11(1).

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party is able to lodge a constitutional complaint (amparo) with the Tribunal Constitucional asserting that the decision ordering its dissolution breaches its fundamental rights.573 Similar to its Czech counterpart, the Spanish constitutional tribunal thus lacks original jurisdiction to decide on the banning of political parties; and it can only examine whether the judges principally responsible for evaluating the conduct of such parties have done so while respecting constitutionally protected fundamental rights. There are furthermore no provisions in the law governing its organisation and functioning that have been crafted with a view to adjudicating recursos de amparo brought against party-banning decisions delivered by the supreme court, and the normal admissibility requirements applicable to constitutional complaints must thus be observed by affected parties seeking to invoke the Tribunal Constitucional’s jurisdiction. The Tribunal Constitutional has handed down several prominent rulings related to the supervision of political parties. In sentencia 48/2003, it rejected an abstract constitutionality challenge that was brought by the Basque government against the party proscription provisions.574 After upholding the legislation as constitutional, the Tribunal Constitucional subsequently dismissed two amparo appeals brought by the Basque separatist Herri Batasuna Party and the Batasuna Party against the first decisions taken by the supreme court in application of this law, which had ordered the dissolution of both parties and the liquidation of their assets.575 Comparative Remarks When looking at the role of the constitutional courts just surveyed in supervising political parties in comparative perspective, we see that the scope of their powers is generally broad: the German, Polish and Czech courts can evaluate the program of political parties (and the ideology enshrined therein) as well as their activities for conformity with the constitutional order. Conversely, the relevant Spanish legislation seeks to maintain a clear distinction between the organisation and beliefs of political parties on the one hand, and their actual behaviour on the other: the Spanish Tribunal Supremo is only empowered to dissolve parties found guilty of carrying out activities that are prejudicial to the democratic system and constitutional values – and this limitation by implication also applies to the Tribunal Constitucional when adjudicating constitutional complaints brought against judgments handed down by the supreme court in this regard. It is further noteworthy that decisions taken in the exercise of this task require strict quorums or voting requirements: the Polish Trybunał Konstytucyjny and the Czech Ústavní Soud adjudicate such matters en banc, while the German Bundesverfassungsgericht requires a two-thirds majority in the competent Senate to be able to render judgment. This can be understood as a reflection of the important role that political parties play in democratic life and in giving expression to the political will of individuals, and the fact that the court in these types of cases is effectively determining whether a party can participate in a country’s

ibid, Art 11(7). Sentencia 48/2003 of 12 March 2003. 575 Sentencia 5/2004 and sentencia 6/2004, both handed down on 16 January 2004. Herri Batasuna and Batasuna subsequently took their case to the European Court of Human Rights, where the chamber hearing their complaint unanimously found that their dissolution could be considered necessary in a democratic society and proportionate in view of the specific Spanish context, and accordingly concluded that there had been no violation of the applicants’ right to freedom of association as protected under Art 11 of the ECHR: Herri Batasuna and Batasuna v Spain App nos 25803/04 and 25817/04 (ECtHR, 30 June 2009). 573 574

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political system and in the exercise of governmental power.576 The serious and fundamental character of such determinations is also reflected in the requirement for a ‘clear and unambiguous’ breach articulated by the Polish constitutional tribunal and the dismissal by the Bundesverfassungsgericht of the petition to ban the National Democratic Party over flaws in the collection of the evidence placed before it. There is more variety when looking at how the four constitutional courts can become involved in evaluating the constitutionality of party programs and party activities. The Czech Ústavní Soud acts as an appeals body and reviews judgments handed down by the two supreme courts, which have primary jurisdiction to decide on the refusal to register political parties and order their dissolution; and similarly, the role of the Spanish Tribunal Constitucional is limited to hearing constitutional complaints challenging party-banning decisions of the supreme court on fundamental rights grounds. In contrast, the German Bundesverfassungsgericht and the Polish Trybunał Konstytucyjny are the only judicial bodies competent to pronounce on the conformity of the aims and actions of political parties with the constitutional order. Focusing on the latter two courts, we further see that there is a difference in the rules on standing: in Germany, only the government and the two Houses of Parliament can submit petitions to have a party outlawed, whereas in Poland a considerably longer list of public institutions and officials is entitled to challenge the constitutionality of parties and their activities. Finally, it was mentioned earlier that the reason for countries to contemplate the banning of political parties on constitutional grounds is often linked to their particular historical experience. The grounds on which constitutional courts can declare that a party’s program or its actual behaviour is unconstitutional may reflect this history: the relevant provisions of the Polish constitution, for instance, refer explicitly to totalitarian methods, Communism and secrecy when it comes to the membership and organisation of the party. iv. Examining the Regularity and Constitutionality of Referendums This last subsection inquires into the role of constitutional courts in supervising referendums. This entails that these courts determine whether the conditions for the direct participation of the people in the exercise of public power have been met. Of the EU Member States systematically examined in this book, France, Italy and Hungary have given their constitutional courts certain responsibilities in relation to referendums.577 Their colleagues 576 The Spanish Tribunal Constitucional is the only exception. Since appeals concerning party-banning decisions by the supreme court are referred to it through the constitutional complaint procedure, the rules governing this procedure apply and this includes those stipulating the number of judges that will decide the case. Constitutional complaints (recursos de amparo) are in principle decided by one of the chambers of the Tribunal Constitucional, which comprise six judges – although it is possible to refer complaints to the full Tribunal if questions arise concerning the constitutionality of the legislation applied in the concrete dispute that led the complainant to lodge an amparo (Organic Law 2/1979 on the Constitutional Tribunal, Arts 10–11). 577 The Czech constitutional court was also entrusted with a specific function as regards the holding and organisation of referendums by Constitutional Act no 515/2002 Sb. Under the old text of Art 62 of the Czech constitution, the president had to call for a referendum on the country’s accession to the EU. The Ústavní Soud was given jurisdiction to decide on remedial action in the event that the president refused to hold such a referendum, and could furthermore examine claims alleging that the organisation of the referendum was not in accordance with Constitutional Act no 515/2002 Sb (Czech constitution, Art 87(1)(l) and (m); Act on the Constitutional Court, § 125a and § 125d). The referendum was duly held on 12–14 June 2003, with close to 80% of Czech voters in favour of accession. While the Ústavní Soud received several petitions challenging the validity of the referendum – mostly for reasons related to the technical conditions surrounding its organisation – it dismissed all of these as inadmissible. Having become superfluous, the relevant provisions governing the jurisdiction of the Czech constitutional court in relation to the referendum on accession to the EU were abolished as of 1 October 2012.

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in Romania578 and Slovakia579 have similarly been entrusted with particular tasks pertaining to the organisation and outcome of referendums. France The French constitution contemplates two tasks for the Conseil constitutionnel when it comes to referendums.580 First, the Conseil constitutionnel is involved in the preparation of referendums. At the government’s request, it gives its opinion on the proposed organisation of the referendum and the question to be put to the voters.581 As to the latter aspect, the Conseil constitutionnel has indicated that la question posée aux populations intéressées doit satisfaire à la double exigence de loyauté et de clarité de la consultation; que s’il est loisible aux pouvoirs publics, dans le cadre de leurs compétences, d’indiquer aux populations intéressées les orientations envisagées, la question posée aux votants ne doit pas comporter d’équivoque, notamment en ce qui concerne la portée de ces indications.582

The Conseil constitutionnel can also make observations as regards the list of entities eligible to use public funds for advertising purposes.583 The advice provided to the government is kept confidential. Second, the Conseil constitutionnel supervises the actual holding of the referendum and proclaims the results thereof. As such, and in cooperation with the relevant ministry, it designates the magistrates who will be present at the polling stations to monitor the operations on its behalf.584 After the referendum, it may receive complaints from individual voters or state officials asserting that the referendum has been marred by irregularities.585 When examining such petitions on their merits, the Conseil constitutionnel considers whether the problems complained of have affected the universality, equality and secrecy of the referendum.586 Finally, the Conseil constitutionnel declares the results of the referendum, although it 578 Romanian constitution, Art 146(i). The constitutional court decides whether the procedure for organising a referendum has been properly observed and proclaims the outcome. 579 Slovak constitution, Art 129(3); Act on the Organisation of the Constitutional Court of the Slovak Republic, on the Proceedings before the Constitutional Court and the status of its Judges, §§ 3 and 9. The constitutional court adjudicates complaints against results of referendums and may decide whether the subject matter of a referendum is in conformity with the constitution or a constitutional law. 580 French constitution, Art 60. Three types of referendum are covered. First, referendums on bills dealing with the organisation of public authorities, reforms of national economic, social or environmental policy or of services contributing to these policies, or the authorisation of a treaty that would affect the functioning of the state institutions, held on the initiative of either the president or one-fifth of MPs supported by one-tenth of registered voters (French constitution, Art 11). Second, referendums on bills containing a constitutional amendment (French constitution, Art 89). Third, referendums on government bills authorising the ratification of a treaty concerning accession of a state to the European Union (French constitution, Art 88-5). 581 Ordinance no 58-1067 on the Constitutional Council (as amended), s 46. 582 Décision no 87-226 DC of 2 June 1987, Loi organisant la consultation des populations intéressées de la Nouvelle-Calédonie et dépendances prévue par l’alinéa premier de l’article 1er de la loi no 86-844 relative à la Nouvelle-Calédonie, para 7. [Translation: ‘The question posed to the people concerned must satisfy the dual requirement of honesty and clarity of the consultation; if the public authorities are, within their competences, free to indicate to the people concerned the direction envisaged, the question put to the voters must not contain any ambiguity, notably as regards the scope of these indications.’] 583 Ordinance no 58-1067 on the Constitutional Council (as amended), s 47. 584 ibid, s 48. 585 ibid, s 50; Décision Règlement référendum du 5 octobre 1988, Rec 278. 586 Décision Résultats référendum 1988 du 9 novembre 1988, Rec 199. If it finds that there indeed have been such irregularities, the Conseil constitutionnel will determine whether they affected the outcome of the referendum; if so, the holding of the referendum may have to be annulled in whole or in part (Ordinance no 58-1067 on the Constitutional Council (as amended), s 50).

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is for the president to officially promulgate the legislation concerned (in the event of a positive outcome) within 15 days.587 It has been suggested that by stipulating this time limit, the constitutional draftsmen may have intended to provide the president with the opportunity to refer the relevant law to the Conseil constitutionnel for an assessment of its constitutionality before it is promulgated.588 However, in one of its first decisions, the Conseil constitutionnel refused to accept that it has jurisdiction to verify whether laws adopted by way of a referendum are in harmony with the constitution.589 Italy Article 75 of the Italian constitution provides for the option to (partially) repeal legislation by means of a popular referendum, the so-called referendum abrogativo, at the behest of 500,000 voters or five regional councils. The same clause also stipulates that such referendums are not allowed in relation to statutes dealing with taxation and the State budget, amnesties and pardons and those by which Italy authorises or ratifies international treaties. The Corte costituzionale is conferred the power to determine whether requests for a referendum abrogativo respect these constitutional limits and hence whether they can be submitted to the electorate for a vote.590 In what has been described as ‘one of the most controversial areas in 50 years of constitutional jurisprudence’,591 the Corte costituzionale has broadly interpreted its role in relation to referendums.592 In its landmark Decision 16/1978, it recognised new ‘implicit’ limits in addition to those set out in Article 75 of the constitution.593 According to the Corte costituzionale, it is not permissible to submit to an abrogative referendum statutes strictly connected to statutes that are explicitly exempted from popular repeal by the constitution itself; laws whose substantive content is prescribed by constitutional provisions; and legal provisions that have a special (constitutional) status, typically by virtue of having been adopted by means of a special procedure, different from that governing the enactment of French constitution, Art 10. Rousseau, Droit du contentieux constitutionnel (n 57) 442. 589 Décision no 62-20 DC of 6 November 1962, Loi relative à l’élection du Président de la République au suffrage universal direct, adoptée par le référendum du 28 octobre 1962, a position that was reiterated in eg Décision no 92-313 DC of 23 September 1992 (Treaty on European Union III) para 2. This position has been criticised as ‘scarcely defensible in a State that claims to be governed by the rule of law’, because it could weaken the (structure of the) constitution and its institutions, and could undermine the case law of the constitutional court: see N Olszak, ‘Constitutional Justice and Democracy by Referendum: Opening Speech’ in Venice Commission, Constitutional Justice and Democracy by Referendum (Strasbourg, 23–24 June 1995) (Strasbourg, Council of Europe Publishing, 1996) 16. 590 This task is not entrusted to the Corte costituzionale by the Italian constitution, but by a later constitutional law adopted in 1953, namely Constitutional Law no 1/1953, Art 2. The procedure for calling an abrogative referendum and relevant procedural requirements are set out in law no 352 of 25 May 1970. Another body that is involved in this procedure is the central referendum office of the court of cassation (Corte di cassazione), which examines the legality of a given request and its compliance with procedural conditions before the request is transferred to the Corte costituzionale for an examination of its constitutional admissibility. This central office must complete this examination by 15 December of the year in which it receives the request for an abrogative referendum. In the event of a positive decision by the latter, the president of the Corte costituzionale sets a deadline before 20 January of the following year for written submissions on the question of constitutionality and the court will hand down its decision on the constitutional permissibility of the referendum by 20 February of the same year. 591 C Fusaro, ‘Italy’ in D Oliver and C Fusaro (eds), How Constitutions Change: A Comparative Study (Oxford, Hart Publishing, 2011) 225. 592 It should be acknowledged that the constitution and the relevant legislation regulating referendums do not provide clear guidance to the Corte costituzionale on carrying out its task of deciding whether proposals for a referendum abrogativo are admissible, with the draftsmen thereby accepting that it is for the Corte costituzionale to flesh out Art 75 of the constitution and the pertinent legislative provisions. 593 Sentenza 16/1978 of 2 February 1978. 587 588

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ordinary legislation.594 Later case law has clarified that referendums are further not permitted for laws strictly necessary for the fulfilment of obligations deriving from Italy’s membership of the EU.595 The Corte costituzionale has furthermore elaborated the drafting criteria that must be observed by those proposing a referendum abrogativo – in particular, the question to be put to the voters should be homogeneous (ie, it cannot cover a plurality of distinct items), rational and coherent596 – and it considers itself competent to reject proposals for referendums that do not comply with these requirements.597 In sum, it has been observed that ‘The jurisprudence developed by the [Italian constitutional court] gives it complete control over what questions will be asked, and many proposals with the required number of signatures do not get to the electorate’.598 Hungary Under Hungary’s Fundamental Law, requests for the holding of a referendum must be submitted to Parliament, which decides whether a plebiscite will indeed be organised.599 Initiatives supported by at least 200,000 citizens with voting rights must be accepted by Parliament, whereas Parliament has discretion in deciding whether to call a referendum if the request emanates from the president, the government or 100,000 citizens with voting rights.600 As in Italy, the Hungarian Fundamental Law identifies several issues that may not be submitted to a referendum. These include constitutional amendments, issues pertaining to the State budget, parliamentary elections, obligations arising from international treaties, the dissolution of Parliament, declaring war or a state of emergency, matters related to participation in military operations, and the granting of general amnesty.601 The Hungarian constitutional court is given jurisdiction to determine both the legality and conformity with the Fundamental Law of resolutions adopted by the Parliament either calling a referendum or rejecting requests that meet the threshold for a referendum to be mandatory.602 Anyone can refer such parliamentary resolutions to the Alkotmánybíróság for scrutiny within 15 days of their publication. The Alkotmánybíróság is not authorised to take cognisance of claims asserting that the content of the question to be submitted to the people or the authentication of the signatures is constitutionally defective.603 Further, it may only examine parliamentary resolutions on their merits if two cumulative conditions are met: 594 This covers, for example, constitutional amendments and constitutional acts that implement or otherwise give effect to specific constitutional provisions and that have been adopted according to the procedure laid down in Art 138 of the Italian constitution. These constitutional acts can also be used as grounds for review by the Corte costituzionale when assessing the constitutionality of ordinary legislation. 595 Sentenza 41/2000 of 3 February 2000 and sentenza 45/2000 of 3 February 2000 – so-called leggi comunitariamente necessarie. 596 This is taken to denote that the question must be clear, simple and essential to enable the voters to answer with a straightforward ‘yes’ or ‘no’. 597 Sentenza 16/1978 of 2 February 1978. To be clear, the Corte costituzionale cannot redraft the question to ensure that it satisfies the drafting criteria fleshed out in its case law. In addition, the Italian court sometimes also examines whether the normative result in the event of a positive referendum is unconstitutional and if it finds that this is indeed the case, it will declare the proposal for a referendum inadmissible: see sentenza 50/2000 of 3 February 2000. 598 M Mandel, ‘Legal Politics Italian Style’ in C Tate and T Vallinder (eds), The Global Expansion of Judicial Power (New York, New York University Press, 1995) 280. 599 Hungarian Fundamental Law, Art 8(1). 600 Although the text of the Fundamental Law is not unequivocal on this point, it would appear that if the request comes from between 100,001 and 1999,999 citizens, Parliament will have discretion in deciding whether to hold a referendum. 601 ibid, Art 8(3). 602 Act CLI of 2011 on the Constitutional Court, Art 33(1). 603 ibid, Art 33(3).

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first, there must have been a significant change in circumstances between the authentication of the signatures of those supporting the proposal for a referendum and the decision to call the plebiscite, and second, it must not have been possible for the national election committee or the supreme court (the Curia) to take these changes into account when performing their respective tasks in relation to the organisation of national referendums.604 Comparative Remarks From a comparative perspective, two comments are in order. First, the role of the French Conseil constitutionnel in supervising referendums encompasses activities that are advisory or declaratory in nature, which mirrors the wide array of tasks that it performs in relation to presidential elections, as we saw earlier. Its broad scope of jurisdiction in this context sets it apart from the Italian Corte costituzionale and the Hungarian Alkotmánybíróság, whose responsibilities in supervising referendums are purely adjudicatory in nature. Second, in terms of the type of judicial scrutiny, the Conseil constitutionnel and the Alkotmánybíróság are primarily concerned with ensuring the regularity of (the organisation of) referendums and enforcing compliance with more procedural requirements. Conversely, the Corte costituzionale can engage in more substantive review and verify whether it is constitutionally permissible to put the proposed question, including its draftsmanship, to the people for a vote.

IV. FINAL COMPARATIVE REMARKS AND REFLECTIONS ON THE COURT OF JUSTICE

During a symposium organised by the Venice Commission that sought to discuss the role of constitutional courts in the consolidation of the rule of law, its then president Antonio La Pergola remarked, ‘It goes without saying that the powers of Constitutional Courts may, and do in fact vary, even significantly, from one case to another’.605 This chapter has explored the various aims of constitutional adjudication in selected European countries by describing the tasks that their constitutional courts have been entrusted with, thereby showing the ways in which the powers of these courts differ, while also identifying similarities where these exist. The purpose of this final section is twofold. The first part brings the lines from the national comparative study together and offers some overarching observations on the type and scope of constitutional jurisdiction that we find in the countries that have been studied. In the second part, we will examine the functions performed by the Court of Justice and explore the extent to which these are redolent of the functions assigned to national constitutional courts.

A. National Comparative Analysis: Some General Comments As central guardians of the constitution, constitutional courts have been given jurisdiction to determine a variety of issues that are more, or less, closely linked to the actual text of this ibid, Art 33(2). A La Pergola, ‘Introductory Statement’ in Venice Commission, The Role of the Constitutional Court in the Consolidation of the Rule of Law (Bucharest, 8–10 June 1994) (Strasbourg, Council of Europe Press, 1994) 12. 604 605

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foundational document. More precisely, this chapter has identified and examined four different functions that these courts may be able to engage in, namely: placing limits on the legislature’s exercise of powers; protecting the fundamental rights of individuals in specific cases; resolving institutional disputes between different organs or echelons of the State; and ensuring the integrity of political office and related processes. The table below shows which functions can actually be performed by the selected constitutional courts as well as the procedural gateways allowing petitioners to invoke their jurisdiction. Looking at the table, we see that every constitutional court surveyed in this chapter has the power to enforce constitutional provisions and principles against the legislature. This is unsurprising: the ability to review the constitutionality of laws (and sometimes also other norms passed by lawmakers) is usually considered the ‘basic and defining competence’606 of Kelsenian constitutional courts. That these courts themselves also conceive of this power as a particularly salient characteristic is for instance apparent when we see that membership of the Conference of European Constitutional Courts can only be granted to judicial bodies ‘which exercise constitutional jurisdiction, in particular reviewing the conformity of legislation [with the constitution]’.607 At the same time, it is common for those European countries that have constitutional courts to assign additional tasks to these institutions. In particular, many of the selected courts are empowered to decide jurisdictional disputes and/or given responsibility to act as ultimate defenders of individuals’ fundamental rights in specific cases. The reasons for doing so are often linked to the historic impetus for the constitutional designers in a given country to establish a special constitutional court and the role that they envisaged this institution ought to play within the (new) constitutional order.608 Upon closer inspection, there are also some variations among the European countries. A first difference relates to the observation made by La Pergola: notwithstanding the tendency to give constitutional courts other tasks besides keeping the legislature in check, there is, formally speaking, no uniform approach as regards the precise combination of constitutional functions exercised by these courts. This observation requires qualification, however. Constitutional courts tend not to use all their powers all the time. For instance, those courts that are competent to adjudicate presidential impeachment cases or verify the constitutionality of political parties are rarely (if at all) asked to actually decide these issues – which means that certain variations concerning the precise configuration of tasks assigned to constitutional courts are more apparent than real. The reverse is also true: apparent commonalities between the functions of these courts may turn out be less common than initially expected. In particular, although all constitutional courts have been given jurisdiction to keep the legislature in check, this task does not always generate the most work for each and every one of these courts.609 In fact, we have seen that constitutional courts that can act as the ultimate champions of individuals’ fundamental rights expend most of their resources on this function. Furthermore, it has been pointed out that L Lopez Guerra, ‘The Role and Competences of the Constitutional Court’ in Venice Commission, ibid, 23. Statute of the Conference of European Constitutional Courts, Art 6. The Conference itself is discussed in more detail in ch 7, section IV-A. 608 This issue is discussed in more detail in ch 2, section III. 609 At the same time, the frequency with which courts perform a particular constitutional function has no necessary or direct correlation with the constitutional significance of the decisions that result from the performance of that function. 606 607

Ensuring the integrity of political office and processes

Resolving institutional disputes

Protecting fundamental rights in specific cases

5 5

Political parties

Referendums

5

5

Presidential impeachment

5

5

5

Electoral disputes

Horizontal disputes

Vertical disputes

Constitutional complaint procedure

Abstract interpretation

Preliminary references 5

5

By individuals

5 5

Czech Republic

A posteriori

Abstract constitutionality

Keeping the legislature in check

Belgium

A priori

Procedural avenues

Function

5

5

5

5

5

France

5

5

5

5

5

5

5

5

5

Germany

5

5

5

5

5

5

5

5

5

Hungary

5

5

5

5

5

5

Italy

5

5

5

5

5

5

Poland

5

5

5

5

5

5

5

Spain

FINAL COMPARATIVE REMARKS AND REFLECTIONS 187

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‘the practical focus of constitutional courts seems to change somewhat over time’.610 The extent to which this is the case appears to be linked to more general constitutional and political developments, including constitutional reforms such as the devolvement of State powers to the lower echelons of government that took place in Italy and Spain, which in turn redirected the attention of the Corte costituzionale and the Tribunal Constitucional respectively towards the adjudication of vertical competence disputes. Second, there are variations in the availability and design of the procedures that have been established with a view to allowing constitutional courts to perform a certain function. For example, the French Conseil constitutionnel can only engage in abstract review of statutes before they are promulgated and Belgium does not provide for a procedural avenue tailored to the resolution of competence disputes between the territorial entities, but instead relies on the procedures for controlling the legislature in this regard. Having said this, the constitutional legislature may decide to enlarge or curtail the powers of the constitutional court and accordingly introduce new procedures or restrict the ability to invoke the court’s jurisdiction as compared to what was originally possible. For instance, until relatively recently, the French Conseil constitutionnel could only review the compatibility of statutes with the constitution prior to their promulgation, but following a 2010 constitutional revision ordinary courts can now refer to it preliminary questions concerning the constitutionality of laws that have been promulgated, thereby enhancing the Conseil constitutionnel’s ability to perform its task of controlling the legislature. Conversely, Hungary’s new Foundational Law and related legislation have circumscribed the procedures that give access to the Alkotmánybíróság in several respects, as a result of which the latter’s power to act as a check on the legislature is directly curtailed. Constitutional courts can also engage in jurisdictional self-empowerment: to give an example, the German Bundesverfassungsgericht expounded a broad understanding of its function of enforcing the constitution against the legislature when it accepted that it is competent to receive petitions challenging the constitutionality of laws approving international treaties prior to their promulgation. A related point concerns the question of who can invoke the court’s jurisdiction. A common aspect of the procedures that have been established in the various European countries is that most of them can be activated by public institutions. In several instances, standing is given to the same or similar State organs: preliminary questions always emanate from the regular judiciary and both the central level and federated (or regional) entities have access to the court to complain about alleged encroachments upon their powers by the other level. We have seen, however, that there are variations in the rules on standing in the context of the procedure for abstract review of legal norms, notably as regards the choice of public institutions that can submit claims under the a posteriori version of this procedure. Besides State organs, the various legal systems under examination all provide private individuals with some form of access to the constitutional court. Sometimes individuals can directly invoke the court’s jurisdiction. This is the case when a country has established a constitutional complaint procedure (Germany, the Czech Republic, Spain, Hungary and Poland), when it allows the constitutional court to hear electoral petitions (Germany, France and the Czech Republic), or, more unusually, when individuals with a justifiable interest are entitled to file abstract constitutionality challenges (allowed in Belgium). On other occasions, individuals may enjoy indirect access to the constitutional court. They can ask the regular judges to raise preliminary questions concerning the validity of the statute Harding, Leyland and Groppi, ‘Constitutional Courts: Forms, Functions and Practice’ (n 39) 6.

610

FINAL COMPARATIVE REMARKS AND REFLECTIONS 189

otherwise applicable in a specific controversy to which they are a party. Alternatively, they can present their objections to a given legal measure to one of the public institutions authorised to submit claims to the constitutional court in the hope that it will commence proceedings on their behalf. This latter strategy seems to be particularly promising in those countries that have an ombudsman and have granted this body the right to refer constitutional issues to the court for resolution. The Venice Commission has insisted on the importance of individuals being given access to constitutional courts, either directly or indirectly, in recognition of the increasing importance of constitutional protection of human rights.611 In addition, Ferreres Comella puts forward an instrumental argument in support of this view: [I]f [individuals and groups] are harmed by a law, they have an incentive to look for the best arguments to mount and attack. More importantly, their intervention is necessary to compensate for the passivity of political institutions in some cases. It may happen, for example, that the latter do not realise the extent to which a law can negatively affect the rights and individuals of certain minorities in society. It may also happen that it is unpopular to challenge particular types of statutes.612

In light of the foregoing, it is clear that in terms of their jurisdiction and the rules on access, there is no archetypal European constitutional court. While we have seen that the selected courts share several traits as regards the tasks that they can perform and as regards the petitioners that are eligible to refer constitutional issues to them for determination, so too are there differences in the precise scope of their responsibilities, the standing requirements and their actual focus and composition of their docket. These differences are in part historically determined and linked to the original raison d’être of particular constitutional courts, as explained in chapter two. They are also shaped by contemporary factors and circumstances, including the configuration of a country’s political and social landscape, since these can act as triggers or incentives for those that have the capacity to mobilise the court to actually bring a claim under one of the available procedures, bearing in mind that constitutional courts are as a general rule unable to exercise their competences on their own motion.

B. The Court of Justice in Comparative Perspective The final question to consider is how the functions allotted to the Court of Justice compare with those that can be exercised by the various national constitutional courts.613 This includes looking at the various procedures for legal redress that are set out in the European Treaties. We saw in the previous chapter that the Court of Justice conceives of the treaties (today complemented by the Charter of Fundamental Rights of the EU) as the Union’s ‘constitutional charter’614 and explicitly accepts that it can be characterised as a constitutional court – a label 611 Venice Commission, Study No 538/2009 on Individual Access to Constitutional Justice (CDL-AD(2010)039 rev, Venice, 17–18 December 2010). 612 Ferreres Comella, Constitutional Courts & Democratic Values (n 8) 64. 613 In what follows, the focus will primarily be on the Court of Justice, although occasional reference will be made to the two other judicial bodies that together make up the Court of Justice of the European Union after the entry into force of the Lisbon Treaty, ie the General Court and specialised courts (Art 19(1) TEU). 614 Case 294/83 Parti écologiste ‘Les Verts’ v European Parliament [1986] ECR 1339, para 23; Opinion 1/91 on the draft agreement relating to the creation of the European Economic Area [1991] ECR I-6079, para 21.

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that is by now quite commonplace in writings about the Court. At the same time, it will become clear that while there is considerable overlap between the functions performed by national constitutional courts and the Court of Justice, there are also marked variations, not least the fact that the Court has been assigned additional functions that are not usually considered ‘constitutional’ in nature. i. Ensuring that the Legislature Does Not Overstep its Boundaries Since its establishment, the Court of Justice has been competent to review the validity of measures with a legislative character adopted by the European institutions. Like constitutional courts at the national level, the Court of Justice can thus be said to ensure that the Council and Parliament, which have the power to enact legislative acts at Union level,615 do not overstep the boundaries set by the European constitutional framework.616 In terms of procedures, claims alleging the invalidity of Union legislative measures can be submitted either by filing an action for annulment under Article 263 TFEU or through the preliminary reference procedure laid down in Article 267 TFEU. The action for annulment can be likened to the procedure for abstract review that exists at national level: there is no need for an actual legal controversy as a prerequisite for the legislative measure to be referred to the Court of Justice for scrutiny.617 Looking at the standing rules under Article 263 TFEU in comparative perspective, three comments are warranted.618 First, and similar to the approach taken by national legal systems, the European treaties allow public institutions – including those with a clear political role – to bring annulment actions. The European Parliament, Council, Commission and Member States are so-called ‘privileged applicants’ who will always be admitted to court, whereas the Court of Auditors, the European Central Bank and the Committee of the Regions may initiate the annulment procedure in order to protect their prerogatives. Second, the rules on standing are more dynamic than tends to be the case at national level, in that access to the Court has progressively been extended. This has in part been the Court’s own doing: in two well-known cases decided in the 1980s, the Court of Justice accepted that acts adopted by the European Parliament producing legal effects for third 615 This term refers to acts that have been adopted pursuant to the ordinary or the special legislative procedure (Art 289(3) TFEU). See further Arts 14(1) and 16(1) TEU, stating that the European Parliament and the Council jointly exercise legislative functions. 616 In analogy to the competence of several constitutional courts to verify the constitutionality of international agreements prior to ratification, the Court of Justice can also be asked to give advisory opinions on the compatibility of proposed international agreements with the treaties. In the event of a conflict, the agreement can only enter into force after it has been modified or after the treaties have been revised to eliminate the incompatibility: Art 218(11) TFEU. 617 It is important to point out that the treaties still not do envisage a general role for the Court in enforcing the Union’s constitutional charter in relation to acts adopted in implementation of the EU’s common foreign and security policy (CFSP): Art 24 TEU and Art 275 TFEU. This exclusion has been criticised, because ‘there is a lot more going on in the CFSP than the mere adoption of foreign-policy positions and the making of diplomatic démarches’ and it has been argued that while the main instruments that can be adopted are formally non-legislative in character, ‘Indirectly, however, and in a material sense, many CFSP measures do have a legislative character’: P Eeckhout, Does Europe’s Constitution Stop at the Water’s Edge? Law and Policy in the EU’s External Relations, Fifth Walter van Gerven Lecture (Leuven, Europa Law Publishing, 2005) 18–19. A more general treatment of the evolving role of the Court in the CFSP domain and the field of justice and home affairs is offered by A Hinarejos, Judicial Control in the European Union: Reforming Jurisdiction in the Intergovernmental Pillars (Oxford, Oxford University Press, 2009). 618 As in Belgium and Spain, there is a deadline by which annulment actions must be brought. The deadline is set at two months (Art 263(6) TFEU) and once this has passed, it is no longer possible to directly contest the validity of Union (legislative) acts.

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parties were susceptible to challenge619 and subsequently held that the Parliament could also itself commence annulment actions,620 even though the text of the treaty at the time did not list the Parliament as either a possible applicant or defendant. The Member States endorsed the Court’s bold approach in the Maastricht Treaty621 and over the course of the years further relaxed the standing rules by recognising the capacity of other European institutions and bodies to bring actions for annulment.622 Third, the European legal system is unusual in that individuals are, subject to various conditions, also entitled to initiate such actions. It will be remembered that of the various European countries, only Belgium adopts a similar approach in law and recognises that individuals can ask the constitutional court to review statutes in the abstract. More precisely, Article 263 TFEU stipulates that natural and legal persons can contest the validity of Union legislative measures if they are directly and individually concerned by such measures.623 Legally speaking, the requirement that individuals must be personally affected by the legislative act before they are accorded standing is analogous to the Belgian admissibility criterion, which reserves access to the Cour constitutionnelle to persons with an identi fiable interest. The Court of Justice has however adopted a far more restrictive approach in deciding on the meaning of the term ‘direct and individual concern’ than the Belgian constitutional court did in fleshing out the notion of ‘identifiable interest’.624 Direct concern has been interpreted to require a direct causal link between the contested act and the legal position of the petitioner.625 To this day, the 1963 ruling in Plaumann & Co v Commission626 is still the authority for ‘individual concern’, which will exist when the legislative measure that individuals seek to challenge ‘affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed’. Unsurprisingly, this judicial interpretation of the treaty text means that in the great majority of cases, individuals are unable to show individual concern and obtain access to the Court. As such, the possibility for natural and legal persons to directly challenge the validity of Union legislative acts exists on paper, Les Verts (n 614). Case C-70/88 Parliament v Council (‘Chernobyl’) [1990] ECR I-2041, in which the Court initially only accepted that Parliament had the capacity to bring annulment actions for the protection of its prerogatives. It should be pointed out that two years prior to this ruling, the Court had rejected Parliament’s argument that it should be able to initiate actions for annulment in Case 302/87 Parliament v Council (‘Comitology’) [1988] ECR 5615. 621 That is to say, the European Parliament was given standing for the purpose of protecting its prerogatives. The Treaty of Nice (2000) gave the Parliament its current status of privileged applicant. 622 For instance, the Lisbon Treaty has added the Committee of the Regions to the list of semi-privileged applicants that have standing to defend their prerogatives. 623 The same test applies when individuals seek to challenge the validity of regulatory acts that entail implementing measures. ‘Regulatory acts’ were defined as non-legislative acts of general application in Case T-18/10 Inuit Tapiriit Kanatami v European Parliament and Council [2011] ECR II-5599, under appeal to the Court of Justice (Case C-583/11P). More lenient standing rules apply when natural or legal persons seek to attack acts addressed to them or when they bring annulment actions against regulatory acts that do not entail implementing measures. 624 See section III-A(i)(c) above. 625 Joined Cases 41–44/70 NV International Fruit Company v Commission [1971] ECR 411, paras 24–27; Case 11/82 SA Piraiki-Patraiki v Commission [1985] ECR 207; Joined Cases C-68/94 and C-30/95 French Republic and Société commerciale des potasses et de l’azote (SCPA) and Entreprise minière et chimique (EMC) v Commission (‘Kali and Salz’) [1998] ECR I-1375, paras 49-52; Case C-386/96P Société Louis Dreyfus & Cie v Commission [1998] ECR I-2309, para 43; Joined Cases T-172/98, T-175 to 177/98 Salamander AG v Parliament and Council [2000] ECR II-2487. 626 Case 25/62 Plaumann & Co v Commission [1963] ECR Sp Ed 95. 619 620

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but not quite in reality.627 Although the Court’s approach has met with considerable criticism,628 it has so far chosen not to discard its Plaumann test in favour of a more lenient reading of the admissibility criteria for individuals.629 So why has the Court of Justice been so strict about accepting that individuals have the requisite capacity to bring actions for annulment? The answer is probably linked to its assumption that the treaties have established ‘a complete system of legal remedies and procedures’630 for the review of, amongst other things, legislative acts adopted by the Union institutions.631 Individuals who do not have standing to directly contest the validity of a European legislative act before the Court of Justice can instead initiate proceedings in the national courts against the measures taken by authorities of the Member States implementing or applying this act and incidentally assert the latter’s invalidity.632 According to established case law, national courts are not able to decide on the validity of Union legislative measures,633 but must refer any doubts they have in this regard to the Court of Justice by raising a preliminary question under Article 267 TFEU. Indeed, and as mentioned earlier, the preliminary reference procedure that exists in every country that has a constitutional court can also be found in the European legal system. Article 267 TFEU allows, and sometimes requires, ‘any court or tribunal of a Member State’ to ask the Court of Justice for guidance on issues of European law.634 The test applied by the Court in deciding whether a national body qualifies as such strongly resembles that used by national constitutional courts: the Court ‘takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent’.635 In the same way that regular judges must refer questions regarding the conformity of acts of parliament with the constitution to the constitutional 627 In those limited instances where individuals are able to show both direct and individual concern, their annulment actions will be heard by the General Court, with the possibility of an appeal on points of law to the Court of Justice: Art 256(1) TFEU read together with Statute of the Court of Justice of the European Union, Art 51. 628 Including from its Advocates General and the General Court. See in particular the Opinion of AG Jacobs in Case C-50/00P Unión de Pequeños Agricultores (UPA) v Council [2002] ECR I-6677 and the ruling of the General Court in Case T-177/01 Jégo-Quéré SA v Commission [2002] ECR II-2365, reversed on appeal by the Court of Justice in Case C-263/02P Commission v Jégo-Quéré & Cie SA [2004] ECR I-3425. 629 See in particular UPA (n 628), where the Court pointed out that it would be for the Member States as masters of the treaty to reform the standing rules. This shifting of responsibility to the Member States is not entirely fair, however, as the main problem lies not so much with the inclusion of the concept ‘individual concern’ in Art 263 TFEU, but rather with the meaning given by the Court to that notion. 630 This term was first used by the Court in Les Verts (n 614) para 23. 631 The accuracy and tenability of this assumption has been questioned, however; see in particular the critical reflections of AG Jacobs in his Opinion in UPA (n 628). 632 When the Commission (or other Union bodies or agencies) takes decisions in implementation of EU legislation, individuals can bring annulment actions under Art 263 TFEU against such measures that are more likely to be admissible, as the rules on standing are more lenient and they can at the same time incidentally contest the validity of the underlying EU legislative instrument by raising a plea of illegality under Art 277 TFEU. 633 Case 314/85 Foto-Frost v Hauptzollamt Lübeck-Ost [1987] ECR 4199; Case C-461/03 Gaston Schul Douaneexpediteur BV v Minister van Landbouw, Natuur en Voedselkwaliteit [2005] ECR I-513. 634 See also 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 [2012] OJ C338/1. 635 See eg Case C-54/96 Dorsch Consult Ingenieurgesellschaft mbH v Bundesbaugesellschaft Berlin mbH [1997] ECR I-4961. Under this test, arbitral bodies are excluded from the personal ambit of Art 267 TFEU: Case 102/81 Nordsee Deutsche Hochseefischerei GmbH v Reederei Mond Hochseefischerei Nordstern AG & Co KG and Reederei Friedrich Busse Hochseefischerei Nordstern AG & Co KG [1982] ECR 1095, [8]–[13]; Case C-126/97 Eco Swiss China Time Ltd v Benetton International NV [1999] ECR I-3055. The extent to which constitutional courts have made use of Art 267 TFEU is touched upon in ch 7, section V-A.

FINAL COMPARATIVE REMARKS AND REFLECTIONS 193

court, national courts and tribunals must consult the Court of Justice when they are uncertain about the compatibility of EU legislative acts with the Union’s constitutional charter.636 The obligation to make preliminary references regarding the possible invalidity of EU legislative acts is absolute and, in contrast to the situation that prevails in several national legal systems, there are neither exceptions (as is for instance the case in Belgium) nor a filtering mechanism based on the novelty or serious nature of the issue proposed for referral before the Court of Justice should become involved (as is for instance the case in France).637 Another noteworthy feature of the European preliminary reference procedure is that national courts and tribunals are able to send questions asking for a clarification of the correct interpretation of acts adopted by the Union institutions or provisions laid down in the European Treaties.638 It will be remembered that this possibility does not exist in the various countries that have a mechanism of preliminary referrals from the regular to the constitutional judiciary. While allowing national courts or tribunals to ask the Court of Justice for guidance on the interpretation of EU law is not really necessary for the latter to be able to keep the Union legislature in check, we will see below that this possibility has been instrumental in allowing the Court to perform some of the other functions conferred on it. When looking at its overall body of case law, the Court of Justice cannot be considered particularly activist in enforcing the Union’s constitutional charter against the Union legislature. It is not a very common occurrence for measures with a legislative character to be totally or partially struck down: rather, the Court generally seems supportive of the acts adopted by the Council and the European Parliament. ii. Protecting the Fundamental Rights of Individuals in Specific Cases The European Treaties do not provide a legal avenue purposely designed to enable individuals to obtain redress from the Court of Justice for alleged breaches of their fundamental rights in the context of a specific controversy by lodging the European equivalent of the German Verfassungsbeschwerde or the Spanish recurso d’amparo. Historical reasons may account for the absence of a constitutional complaint procedure in the original Treaty of 636 Foto-Frost (n 633); Schul (n 633). In the latter case, the Court declined to allow national courts to declare acts adopted by the Union institutions invalid that are analogous to acts that it had previously struck down. There is further a temporary restriction on the Court’s competence to receive questions regarding the validity of measures adopted under what used to be the Third Pillar (dealing with police and judicial cooperation in criminal matters): until 1 December 2014, it is only competent to adjudicate such questions if the Member State in which the referring court is located has accepted the Court’s jurisdiction to do so: Protocol (No 36) on transitional provisions [2010] OJ C83/322, Art 10(1) and (3). 637 The only prerequisite for requests for a preliminary ruling to be admissible – aside from the referring body being categorised as a court or tribunal in the sense of Art 267 TFEU – is that a decision of the Court of Justice is necessary for a ruling to be given in the main proceedings at the national level. Accordingly, the Court declines to accept references that contain hypothetical questions, questions that are manifestly irrelevant for the purpose of handing down a judgment in the main proceedings, questions that do not sufficiently explain why a preliminary ruling is sought, and those that do not clearly set out the factual and legislative context of the questions referred. For more detail, with references to case law, see P Craig and G de Búrca, EU Law: Text, Cases, and Materials, 5th edn (Oxford, Oxford University Press, 2011) 467–71. 638 National courts ruling at final instance are in principle obliged to refer questions concerning the interpretation of EU law to the Court of Justice, whereas lower courts have discretion in this regard. The obligation for the former category of national courts to refer is subject to two exceptions, however, namely the acte éclairé (the Court has already addressed the same point of law in earlier judgments) and the acte clair (the application of EU law is so obvious as to leave no scope for any reasonable doubt): Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECR 3415.

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Rome. According to Weiler, ‘The judicial review provisions of the treaty were intended in large measure to protect against encroachments by the Community of the rights of the Member States, rather than the rights of individuals’.639 As is well known, the treaty as adopted in the 1950s did not contain a list of fundamental rights for the protection of the individual from the powers of the newly established European institutions, and it was the Court of Justice that in the 1970s began to fashion an unwritten Bill of Rights for the European legal order in its case law, which has since been complemented by a written and today legally binding catalogue of rights in the form of the Charter of Fundamental Rights of the European Union. We have also seen that the decision of constitutional designers to give private persons access to the constitutional court for the purpose of claiming that the public authorities have breached their fundamental rights is intimately connected with the particular country’s historical experience. In that vein, it has been observed that ‘As the Community lacks a comparable historical record, it is difficult to reach a consensus among Member States about the appropriate degree of scrutiny by Community courts in this field of individual protection’.640 To be fair, the option to introduce a mechanism akin to the constitutional complaint procedure available in some Member States has occasionally been mentioned in the past,641 although there does not appear to have been any serious consideration of this idea.642 Having said this, it is undeniable that the Court of Justice can, and does, act in defence of fundamental rights in the context of those procedures that are available within the European legal system, including at the behest of individuals. Actions for annulment under Article 263 TFEU can be based on a perceived incompatibility between the act under review and one or more fundamental rights. Such actions can not only be used to challenge legislative measures, but are also available to contest the validity of non-legislative acts adopted by the institutions, bodies, offices or agencies of the Union with legal effects for third parties, including on fundamental rights grounds.643 Yet, it should be remembered that the 639 J Weiler, ‘Eurocracy and Distrust: Some Questions concerning the Role of the European Court of Justice in the Protection of Fundamental Human Rights within the Legal Order of the European Communities’ (1986) 61 Washington Law Review 1103, 1111. 640 Observation by judges Arthur Chaskalson and Pedro Cruz Villalón, reported in F Hoffmeister, ‘The Constitutional Functions of the European Court of Justice’ in I Pernice, J Kokott and C Saunders (eds), The Future of the European Judicial System in a Comparative Perspective, European Constitutional Law Network Series, vol 6 (Baden-Baden, Nomos, 2006) 144. 641 See eg H-W Rengeling, ‘Brauchen wir die Verfassungsbeschwerde auf Gemeinschaftsebene’ in O Due, M Lutter and J Schwarze (eds), Festschrift für Ulrich Everling (Baden-Baden, Nomos, 1995). The advantages and downsides of this option are also canvassed by B De Witte, ‘The Past and Future Role of the European Court of Justice in the Protection of Human Rights’ in P Alston (ed), The EU and Human Rights (Oxford, Oxford University Press, 1999), who ultimately concludes that ‘despite its prima facie appeal, the creation of a European amparo is not to be recommended’. 642 See in particular Working Group II of the European Convention, Working Document 021, ‘The Question of Effective Judicial Remedies and Access of Individuals to the European Court of Justice’ (Brussels, 1 October 2002) paras 5–7. According to the Final Report of Working Group II (CONV 354/02 of 22 October 2002) 15, the majority of working group members had reservations about this idea and it was accordingly not recommended for debate in the full Convention. The idea of giving individuals direct access to the Court for the protection of their fundamental rights was also mooted in the Report of the Court of Justice on certain aspects of the application of the treaty on European Union (Luxembourg, May 1995) at point 20 and by the Italian government, which at the time held the presidency of the Council, in its first progress report on the IGC (Conference of the Representatives of the Governments of the Member States, CONF 3860/1/96 (Brussels, 17 June 1996) 5), although it was noted in the report that enabling individuals to bring actions directly before the Court for fundamental rights violations had attracted ‘little support’. 643 This includes the ability to review decisions adopted by the Council imposing sanctions or other restrictive measures on natural or legal persons, typically as part of the EU’s anti-terrorism policy: see Art 275 TFEU, which follows the Court’s ruling in Joined Cases C-402/05P and C-415/05P Yassin Abdullah Kadi and Al Barakaat

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case law on standing makes it difficult for natural and legal persons to mount an attack against legislative measures and, as such, the Court of Justice may need to relax its inter pretation of the conditions for access, amongst other things to be better able to protect fundamental rights and freedoms from transgressions. The admissibility conditions are somewhat more lenient for individuals who seek to bring annulment actions against nonlegislative acts, however.644 Additionally, when national courts have reservations about the compatibility of EU legislation (or other acts adopted by the Union institutions) with one or more fundamental rights, they must refer such issues to the Court of Justice by means of Article 267 TFEU.645 It may be the case that the national judge herself believes that a European act impinges on fundamental rights and freedoms, but it can also happen that the parties before her raise the possible invalidity of the pertinent act and ask the judge to make a preliminary reference. Furthermore, the Member States must observe European fundamental rights when they are acting within the scope of Union law646 and any perceived breaches can be referred to the Court of Justice for examination. Such referrals can be made either by the Commission under Article 258 TFEU or by national courts raising preliminary questions regarding the interpretation of those fundamental rights under Article 267 TFEU.647 The way in which these procedures are available more generally to ensure that Member States comply with the Union’s constitutional charter – its fundamental rights component included – is elaborated below. For now, it should be pointed out that the Court of Justice has accepted that it cannot review acts of the Member States that fall outside the scope of Union law and that this limitation of the scope of its jurisdiction is interesting when considered in a comparative perspective: International Foundation [2008] ECR I-6351. Several such decisions have been attacked on fundamental rights grounds in recent years, initially before the General Court with the possibility of an appeal on points of law to the Court of Justice: see eg Case T-284/08 People’s Mojahedin Organisation of Iran v Council [2008] ECR II-3487, appealed to the Court of Justice as Case C-27/09P France v People’s Mojahedin Organisation of Iran [2011] ECR I-0000. 644 Persons seeking to challenge acts addressed to them are immediately admitted to court, and individuals who wish to bring annulment actions against regulatory acts that do not entail implementing measures only need to show direct concern. The term ‘regulatory act’ has been interpreted to denote non-legislative acts of general application: Inuit Tapiriit Kanatami (n 623). 645 Two quite recent cases in which the Court found, in response to preliminary references made by national courts, that EU legislative acts were in part incompatible with fundamental rights are Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen [2010] ECR I-11063 (striking down a provision in a regulation that prescribed the publication of personal information of beneficiaries of agricultural aid on the grounds of violating the right to the protection of personal data) and Case C-236/09 Association belge de Consommateurs Test-Achats ASBL v Conseil des ministres [2011] ECR I-773 (finding that a derogation in a directive on gender equality was incompatible with the principle of equal treatment between men and women). 646 This covers situations where Member States are implementing or enforcing acts adopted by the Union institutions (see Case 5/88 Wachauf v Germany [1989] ECR 2609) as well as cases where they seek to derogate from, or restrict, the exercise of EU law rights or freedoms (see Case C-260/89 Elliniki Radiophonia Tileorassi AE (ERT) v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas [1991] ECR I-2925). Article 51(1) of the EU Charter of Fundamental Rights muddied the waters somewhat, as it is formally addressed to the Member States only when they are ‘implementing’ Union law, although the explanations relating to the Charter state that it is binding for the Member States when they ‘act in the scope of Union law’ and refer to the Court’s ruling in ERT. In its judgment in Case C-617/10 Åklagaren v Hans Åkerberg Fransson [2013] ECR I-0000, the Court provided clarification and held that the fundamental rights guaranteed by the Charter must be observed where national measures fall ‘within the scope of European Union law’ (para 21). 647 Under Art 7 TEU, the European Council may determine that there exists a serious and persistent breach by a Member State of the values enshrined in Art 2 TEU, which include respect for human rights, and such a determination constitutes grounds for the Council to decide to suspend some of the State’s voting and other rights. Under Art 269 TFEU the Court of Justice is competent to verify compliance with the procedure prescribed in Art 7 TEU.

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It is as if the Bundesverfassungsgericht or the Spanish Constitutional Tribunal could scrutinise all central state acts and those acts of the regional and local authorities which those authorities perform as ‘agents’ of the central State, but not the autonomous acts performed by those authorities.648

It is important to note that the Court of Justice has in the past been criticised for adopting too lax a standard of review when scrutinising the compatibility of EU legislation (as well as other acts) with fundamental rights, the upshot being that these rights are in effect insufficiently protected from transgression by the Union institutions.649 With the entry into force of the Lisbon Treaty on 1 December 2009, the Charter of Fundamental Rights of the European Union – which had been proclaimed in 2000 but was initially not given binding force650 – acquired the ‘same legal value as the Treaties’.651 The hope has been expressed that the Court of Justice is thereby induced to become more vigilant and adopt a more vigorous approach in defending fundamental rights in the performance of the tasks allotted to it, notably keeping the Union legislature in check.652 It will be interesting to see whether this expectation actually materialises: quantitatively speaking, the Charter is reported to be making increasing appearances in the Court’s rulings,653 but there is as yet little evidence to suggest a qualitative change in the case law, in the sense of the Court of Justice adopting a more hands-on approach in controlling whether measures of the EU institutions in actual fact duly respect fundamental rights. iii. Resolving Vertical and Horizontal Institutional Disputes Like several constitutional courts, the Court of Justice performs the function of judicial umpire in institutional conflicts and, as such, it polices both the vertical and horizontal division of powers within the European legal order. As a preface to a discussion of the Court’s task in ordering the relations between the Union and the Member States,654 it may be helpful to say something about the nature of the competence-sharing arrangement between the two levels. The Union can qualify as a federation under several definitions of that concept655 and the EU has been profitably analysed in federal terms.656 It certainly has a number of features which allow it to be considered as belonging to the federal type, such as the division of competences between the Union and its Member States, which is laid down in a document that is beyond the reach of either level

De Witte, ‘The Past and Future Role of the European Court of Justice’ (n 641) 869. See, for example, the classic article by J Coppel and A O’Neill, ‘The European Court of Justice: Taking Rights Seriously?’ (1992) 29 CML Rev 669; the reply by JHH Weiler and N Lockhart, ‘“Taking Rights Seriously” Seriously: The European Court and its Fundamental Rights Jurisprudence’ (1995) 32 CML Rev 51 (Part I) and 579 (Part II); U Everling, ‘Will Europe Slip on Bananas? The Bananas Judgment of the Court of Justice and National Courts’ (1996) 33 CML Rev 401. 650 See Case C-540/03 European Parliament v Council (‘Family Reunification’) [2006] ECR I-5769, para 38. 651 Art 6(1) TEU. 652 See eg A Albi, ‘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?’ (2010) 47 CML Rev 791, 823. 653 European Commission, 2011 Report on the Application of the EU Charter of Fundamental Rights, at 6. 654 Parts of the following text draw on Claes and De Visser, ‘The Court of Justice as a Federal Constitutional Court’ (n 391). 655 Consider for instance the American tradition, which allows for the recognition of treaty-based federations. 656 See eg R Schütze, From Dual to Cooperative Federalism: The Changing Structure of European Law (Oxford, Oxford University Press, 2009); A Menon and MA Schain, Comparative Federalism: The European Union and the United States in Comparative Perspective (Oxford, Oxford University Press, 2006); M Burgess, Federalism and the EU: Building of Europe 1950–2000 (New York, Routledge, 2000). 648 649

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to change using ordinary legislative procedures. At the same time, the Union’s federal character is contested. The German Bundesverfassungsgericht has explicitly renounced the use of this concept in relation to the EU.657 The treaties make no mention of it, and one might even say that the typology of the EU as a federal-like structure has been blacklisted in the political debate. The reason for this lies in the keen desire to avoid an implicit choice for an existing prototype, which may open wounds or result in protracted debates as to the finalité of the European integration project. As a general observation, it is however accurate to say that the division of competences between the Union and its Member States continues to change over the course of time and at a more rapid pace than in those countries that also are not mature federal systems, but that practise a certain form of geographical decentralisation and vest lower entities with (increasingly significant) powers. Turning to the task of the Court of Justice in enforcing the allocation of powers between the Union and the Member States, a first point of note is that the European Treaties do not provide for a special procedure to assert that either level has overstepped its competences. As such, the Union legal system resembles the Belgian one, which also makes do without a separate procedure for such competence disputes. In contrast, most other countries that have similarly conceived of their constitutional courts as arbiters of institutional conflicts have introduced procedures tailored to this constitutional function, although it may also be possible in those countries to refer such conflicts to the court by filing abstract constitutionality challenges, with the petitioner asserting that the objectionable legal act is invalid on the grounds that it was adopted in violation of the constitutional division of competences.658 Nearly all of the most commonly used procedural avenues included in the treaties enable the Court of Justice to arbitrate conflicts regarding the vertical balance of powers. Under Article 258 TFEU, the Commission may bring Member States before the Court alleging a violation of their obligations under EU law, and this can include the failure to respect the division of powers between the two levels. In addition, the Member States can bring actions for annulment when they believe that acts adopted by the Union’s institutions should be declared invalid for breaching the division of powers, given that lack of competence is one of the grounds that can be pleaded in the context of this procedure. Mention should also be made of the important role played by the preliminary reference procedure, and by implication by national courts, in sanctioning the improper exercise of powers by either of the levels. It has already been explained that national courts which harbour doubts about the validity of acts adopted by the European institutions must refer such matters to the Court of Justice for decision. Their doubts may stem from a perceived incompatibility between the Union measure and a certain fundamental right, but can of course equally be caused by the belief that the European institutions acted ultra vires. As far as laws or other acts of the Member States are concerned, it has become clear following several landmark rulings by the Court of Justice that national courts are empowered under EU law to disregard incompatible national legislative provisions – for instance because these provisions unwarrantedly encroach upon the powers of the Union or are otherwise in breach of the Union’s constitutional charter.659 In such cases, national courts can ask the Court for guidance by inquiring about the correct interpretation of the pertinent European norms to enable them BVerfG 89, 155 (1993) Maastricht Treaty. This is for instance the case in Spain, Italy and Germany: see the discussion in section III-C(i). 659 Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ECR 13; Case 6/64 Flaminio Costa v ENEL [1964] ECR 585; Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 629. 657 658

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to decide whether the contested provision of national law is indeed incompatible with EU law.660 While the procedure laid down in Article 258 TFEU formally speaking is ‘the frontdoor option of reviewing the compatibility of national legislation with [Union] law’,661 the preliminary reference procedure ‘serve[s] in fact as the principal way of constitutional review of State action’.662 When comparing the powers of the Court of Justice with those of national constitutional courts that are also entrusted with the function of adjudicating conflicts arising from the division of competences between various levels of government, there is a noticeable difference. While it can invalidate legislative acts and other measures adopted by the Union institutions (ie, the central level) due to lack of competence, the Court lacks the power to strike down laws adopted by the Member States (ie, equivalent to the lower level). Its judgments delivered in the context of Article 258 TFEU, to the effect that a Member State has committed a breach of EU law, are purely declaratory in nature. Similarly, the Court of Justice can only pronounce on matters of Union law in its preliminary rulings: national courts cannot ask it to interpret national statutes or rule on their compatibility with the Union’s constitutional framework.663 Although the Court’s preliminary rulings may be ‘a proxy for constitutional review’664 and can be quite detailed in answering the questions raised, it is ultimately for the national courts to decide whether the provisions of national law in issue in the main proceedings are in breach of the Union’s constitutional charter.665 There is thus an asymmetry in the way that the Court of Justice can deal with objectionable acts adopted at the European and national levels. Another important difference between the Court of Justice in its capacity as arbiter of competence conflicts and national constitutional courts that can perform a similar function concerns the issue of final authority. Judgments of the latter that resolve conflicts between the different tiers of government are recognised as binding and it is accepted that State organs at all levels must comply with such decisions. In contrast, the claim of the Court of Justice that it alone is the judge of questions regarding the allocation of competences between the Union and its Member States is not generally recognised by several national constitutional courts, which instead approach such matters from the national constitutional perspective. Looking at the way in which the Court has conducted itself in the performance of its function as umpire of the vertical balance of powers, it becomes clear that there is a noticeable reticence to patrol this balance to the benefit of the Member States. The Court has endorsed an expansive reading of the harmonisation competences conferred on the Union 660 In the event of a conflict, it is for the competent authorities in the Member State (which includes the national courts, administrative authorities and the legislature) to draw the necessary consequences, which can include refraining from applying the pertinent national legal provisions to the main proceedings. 661 H Schepel and E Blankenburg, ‘Mobilizing the European Court of Justice’ in G de Búrca and JHH Weiler (eds), The European Court of Justice (Oxford, Oxford University Press, 2001) 14. 662 T Tridimas, ‘Constitutional Review of Member State Action: The Virtues and Vices of an Incomplete Jurisdiction’ (2011) 9 International Journal of Constitutional Law 737, 738. 663 Also, the Court is not competent to check the validity or proportionality of operations carried out by the police or national law enforcement services or actions taken by the Member States to maintain law and order and safeguard internal security: Art 276 TFEU. 664 Tridimas, ‘Constitutional Review of Member State Action’ (n 662) 738. 665 This applies a fortiori in those cases where national courts believe that they can come to a decision on the compatibility of national law with Union law without requiring the assistance of the Court of Justice. For more detail on the role of national courts in enforcing the Union’s constitutional charter against national legislatures and executives, see eg M Claes, The National Courts’ Mandate in the European Constitution (Oxford, Hart Publishing, 2006); A-M Slaughter, A Stone Sweet and JHH Weiler (eds), The European Courts and National Courts: Doctrine and Jurisprudence (Oxford, Hart Publishing, 1998).

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level: while its ruling in Tobacco Advertising666 seemed to suggest a shift towards stricter judicial control of the Union’s competence to adopt Europe-wide legislation to regulate the internal market, later judgments show that this was perhaps more a case of one swallow that did not a summer make.667 Also, the Court has interpreted the treaty provisions on the four freedoms (goods, workers, services and capital) very broadly, thereby circumscribing the legislative autonomy left to the Member States.668 Further, it has until now refrained from breathing ‘constitutional life into subsidiarity’,669 the principle according to which the Union should only exercise the lawmaking powers conferred on it if it can better achieve the objectives of the proposed action than the Member States.670 It is also part of the functions of the Court of Justice to decide conflicts that have arisen between the different European institutions, that is to say, that relate to the horizontal balance of powers.671 The European Treaties yet again do not contain a procedure geared specifically to the resolution of such disputes, analogous for instance to the Organstreitverfahren that we find in Germany. And yet again, the main procedural avenue for accessing the Court in the event of perceived infringements of the horizontal division of competences is the action for annulment.672 Claims can be brought by the petitioners listed earlier: that is to say, the European Parliament, Council and Commission have unlimited access, while the Court of Auditors, the European Central Bank and the Committee of the Regions673 can go to the Court to protect their prerogatives.674 In addition, Member States and individuals (on condition that the restrictive rules on standing are complied with) are also able to refer perceived violations of the horizontal balance of powers to the Court of Justice. As such, the set of petitioners is larger than under most procedures that have been established Case C-376/98 Germany v Parliament and Council (‘Tobacco Advertising’) [2000] ECR I-8419. See eg Case C-210/03 R, on the application of Swedish Match AB and Swedish Match UK Ltd v Secretary of State for Health [2004] ECR I-11893; Case C-434/02 Arnold André GmbH & Co KG v Landrat des Kreises Herford [2004] ECR I-11825; Case C-58/08 Vodafone, O2 et al v Secretary of State [2010] ECR I-4999. See also S Weatherill, ‘The Limits of Legislative Harmonisation Ten Years after Tobacco Advertising: How the Court’s Case Law Has Become a “Drafting Guide” ’ (2011) 12 German Law Journal 827. 668 See eg S Weatherill, ‘Pre-Emption, Harmonisation and the Distribution of Competence to Regulate the Internal Market’ in C Barnard and J Scott (eds), The Law of the Single European Market: Unpacking the Premises (Oxford, Hart Publishing, 2002). 669 D Wyatt, ‘Is the European Union an Organisation of Limited Powers?’ in A Arnull, C Barnard, M Dougan and E Spaventa (eds), A Constitutional Order of States? Essays in EU Law in Honour of Alan Dashwood (Oxford, Hart Publishing, 2011) 19. 670 Art 5(3) TEU and Protocol (No 2) on the application of the principles of subsidiarity and proportionality [2006] OJ C83/206. See generally on this principle A Estella, The EU Principle of Subsidiarity and its Critique (Oxford, Oxford University Press, 2002). 671 The relationship among these institutions and the allocation of competences among them is organised in a way that differs in some respects from the configurations that are common in most States that belong to the EU. For instance, the right to propose new legislative measures is almost exclusively in the hands of the Commission (Art 17(2) TEU and Art 289(4) TFEU), not the European Parliament, and under the text of the treaties, the European Parliament lacks the power to propose a vote of no confidence in relation to individual Commissioners (Art 17(8) TEU and Art 234 TFEU). 672 In addition, there is also the possibility of bringing a claim for a wrongful failure to act under Art 265 TFEU, but this procedure is not often initiated and will accordingly not be discussed here. For a general overview see Craig and De Búrca, EU Law (n 637) 512–15. Further, disputes between the Union institutions can be raised and adjudicated more indirectly in the context of preliminary references in which the referring court questions the validity of a given EU act or when the Court is asked to give advisory opinions on the compatibility of proposed international agreements with the treaties (Art 218(11) TFEU). 673 According to the treaties, the Committee of the Regions does not have the official status of a Union institution: it is not included in Art 13 TEU which lists the Union’s institutions. 674 While the European Council – which has the official status of a Union institution under Art 13 TEU – can be sued under Art 263 TFEU, it is not mentioned in that provision as having standing to bring annulment actions against acts adopted by the other institutions or bodies of the Union. 666 667

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in the various European countries whose constitutional courts can also act as judicial umpires in boundary conflicts between central State organs. Two notions that are central to litigation regarding the relationship between the various European institutions and their powers are those of institutional balance and legal basis. The principle of institutional balance is the EU’s version of Montesquieu’s classic notion of the separation of powers675 and for instance entails that the Union institutions must not encroach upon each other’s powers, must practise mutual respect in their dealings with each other and may not unconditionally assign powers conferred on them by the treaties to other bodies or organs.676 The principle of legal basis denotes that every legislative act adopted by the institutions must be based on an article of the treaties. The relevant treaty provisions not only define the scope of the Union’s powers in a given field of law, but also prescribe the applicable legislative procedure, which in turn impacts on the precise role played by the European Parliament and the Council (and to a lesser extent the Commission) and the voting requirements. Although the Lisbon Treaty has been important in reducing and streamlining the large variety of legislative procedures in place to date, there is still no single procedure that is generally applicable across all fields, which means that incentives to litigate over the choice of legal basis and the particular configuration of the horizontal balance of powers as regards the adoption of new Union legislative acts continue to exist.677 It has been observed that, practically speaking, the function of acting as judicial umpire in disputes between the Union institutions is of much greater significance for the Court of Justice than similar functions are for those national constitutional courts also empowered to maintain the division of competences between central State organs. The reason given is that: the institutions of the European Union have different sources of legitimacy. The Council represents the governments of the Member States, acting under the control (theoretically at least) of the national parliaments, whereas the European Parliament emerges from separately held direct elections. The Council or the Commission cannot count on the support of a majority in the European Parliament; the interests of the three institutions are often conflicting and, hence, those institutions are tempted to use the available means of litigation as another instrument in their political struggle.678

Additionally, the relationship between the different Union institutions and the allocation of powers between them changes at a much faster pace than the institutional configura675 In Chernobyl (n 620) para 21, the Court of Justice defined the principle of institutional balance as ‘a system for distributing powers among the different Community institutions, assigning to each institution its own role in the institutional structure of the Community and the accomplishment of the tasks entrusted to the Community’. On this principle, see eg P Craig, ‘Institutions, Powers and Institutional Balance’ in P Craig and G De Búrca (eds), The Evolution of EU Law, 2nd edn (Oxford, Oxford University Press, 2011); J-P Jacqué, ‘The Principle of Institutional Balance’ (2004) 41 CML Rev 383; K Lenaerts and A Verhoeven, ‘Institutional Balance as a Guarantee for Democracy in EU Governance’ in C Joerges and R Dehousse (eds), Good Governance in Europe’s Integrated Market (Oxford, Oxford University Press, 2002). On the added value of using the traditional separation of powers as a normative framework in the context of the EU, see G Conway, The Limits of Legal Reasoning and the European Court of Justice (Cambridge, Cambridge University Press, 2012) ch 4. 676 See also Art 13(2) TEU. 677 In addition, the Union’s common foreign and security policy (CFSP) has retained a special status, with its own set of institutional and procedural rules. The Court does not have unlimited review powers in this domain, but is competent to determine whether the correct legal basis has been used for measures adopted in implementation of the CFSP and whether there has been a circumvention of the procedures or encroachment upon the powers of the institutions concerning the exercise of the Union’s powers in all other policy fields: Art 24(1) TEU read together with Art 40 TEU and Art 275 TFEU. 678 B De Witte, ‘Interpreting the EC Treaty like a Constitution: The Role of the European Court of Justice in Comparative Perspective’ in R Bakker, AW Heringa and F Stroink (eds), Judicial Control: Comparative Essays on Judicial Review (Antwerp, Maklu, 1995) 143–44.

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tions at national level do, both as a result of regular treaty amendments and as a matter of institutional practice. This calls for relatively frequent negotiations and bargaining over the new position of each institution and its competences, the upshot likely being a greater need to involve the Court of Justice to authoritatively decide on the correctness of competing interpretations of the horizontal balance of powers. iv. Ensuring the Integrity of Political Office and Related Processes We have seen that the national constitutional courts examined in this chapter are all empowered to control the constitutionality of the legislature’s work and that the majority have also been given responsibility for protecting individuals’ fundamental rights and/or arbitrating institutional disputes. It is somewhat less common for these courts to be assigned the function of ensuring the integrity of political office and related processes. From a comparative perspective, then, it is not surprising that this latter function comprises only a very small part of the Court of Justice’s overall portfolio of duties and responsibilities.679 The Court is given jurisdiction to determine whether individual Commissioners should be compulsorily retired because they no longer fulfil the requirements for the performance of their office or because they are guilty of serious misconduct.680 There is a certain analogy here with the competence of several national constitutional courts to preside over presidential impeachment trials, although it should be noted that the Court of Justice lacks the power to decide whether other incumbents of important political positions within the EU – most notably the president of the European Council – have forfeited their office.681 Petitions may be submitted by the Council or the Commission itself, though it must be pointed out that the Court has thus far not ordered the compulsory retirement of any member of the Commission.682 v. Other ‘Non-Constitutional’ Functions Performed by the Court of Justice The most striking difference when comparing the functions carried out by the Court of Justice and national constitutional courts is that the former has been assigned additional tasks that at the national level are typically regarded as ‘non-constitutional’ in nature. First, the Court is responsible for ensuring the uniform interpretation and application of Union law across the Member States and can accordingly be said to act as a supreme court of 679 In addition to the possibility mentioned in the main text, it should be pointed out that the European Parliament can determine that a political party at European level no longer observes the principles on which the EU is founded (namely, liberty, democracy, respect for human rights and fundamental freedoms and the rule of law), as a result of which this party forfeits this status and is excluded from funding: Regulation (EC) No 2004/2003 of the European Parliament and of the Council of 4 November 2003 on the regulations governing political parties at European level and the rules regarding their funding [2003] OJ L297/1, Art 5(3) read together with Art 3(c) and Rules of Procedure of the European Parliament (7th parliamentary term – January 2013), rr 209(6) and 210. Decisions to that effect would appear to qualify as challengeable acts within the scope of Art 263 TFEU, meaning that the Court of Justice could be asked to review such decisions. 680 Arts 247 and 245(2) TFEU. The Court may alternatively decide that the Commissioner will be deprived of her right to a pension or other benefits in the event of a breach of the duties incumbent on her that was committed during or after her term of office, including any breach perpetrated during the term of office but that only came to light after this term had expired: see Case C-432/04 Commission v Edith Cresson [2006] ECR I-6387. 681 It is for the European Council to decide whether to end its president’s term of office due to the existence of an impediment or serious misconduct: Art 15(5) TEU. 682 In Cresson (n 680), the Court of Justice was asked to order that former Commissioner Cresson should be deprived of her right to a pension and/or any benefits for having acted in breach of the obligations arising from her office during her time as a member of the Santer Commission. While the Court found that she had indeed infringed these obligations, it concluded that this finding of itself constituted an appropriate remedy and that there was accordingly no need to impose further penalties.

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general jurisdiction. The principal mechanism that enables the Court of Justice to carry out this function is the preliminary reference procedure, which, as we have seen, allows national courts to refer questions concerning the validity as well as the interpretation of EU law to the Court. In contrast, in countries with Kelsenian constitutional courts, the task of preserving consistency is given to the supreme court(s), located at the apex of the regular judiciary.683 A second function performed by the Court of Justice involves keeping the Union’s executive in check. In particular, it plays the role of an administrative court in ensuring that the Commission and other bodies competent to adopt non-legislative acts exercise their powers in accordance with the Union’s constitutional charter.684 The Court does so in fields such as competition law or State aid, where firms and other interested parties are able to contest the validity of Commission decisions by filing annulment actions under Article 263 TFEU,685 or when deciding disputes relating to the Union’s non-contractual liability.686 Third, it must not be forgotten that the Court of Justice is also an international court.687 This is evident, amongst other indicators, in the ability of Member States to sue each other over alleged breaches of European law under Article 259 TFEU.688 The competence to adjudicate such claims is reminiscent of the power to take cognisance of inter-State disputes enjoyed by international judicial bodies, most prominently the International Court of Justice. Looking at the practical relevance of these non-constitutional functions, it is clear that the last two cannot today be said to enjoy any pre-eminence. While determining the lawfulness of acts adopted by the Union’s executive initially was an important function of the Court of Justice, the responsibility for hearing ‘administrative’ cases has today largely been transferred to the General Court.689 The Court’s involvement in such cases is now reduced to deciding appeals brought against rulings of the General Court on the grounds of lack of competence, a breach of procedure that has adversely affected the rights of the petitioner or the infringement of Union law.690 Further, over the course of the years, States have only sporadically referred perceived violations of Union law committed by other countries that belong to the EU to the Court of Justice.691 683 As such, the position of the Court of Justice is more akin to that of the regular (supreme) courts in countries that have adopted a decentralised model of constitutional adjudication or that are hybrids, such as Cyprus or Estonia, where the ordinary highest courts are ultimately entrusted with guaranteeing the uniform interpretation of non-constitutional legislation and are also at final (or only) instance competent to decide constitutional issues, notably pronouncing on the constitutionality of legislation. 684 But recall that the Czech constitutional court and, to a lesser extent, its counterparts in Poland and Hungary have also been granted jurisdiction to review the constitutionality of legal provisions adopted by the executive in the abstract, and accordingly can also be said to serve as an administrative court of some sort in certain instances. 685 In such instances, the rules on standing are more relaxed than when annulment actions are brought against legislative measures, and most legal persons will be admitted to court, as explained in n 639. 686 Art 268 read together with Art 340(2) TFEU. 687 See eg Claes, The National Courts’ Mandate (n 665) 399–400. 688 Member States can also bring disputes relating to the subject matter of the treaties before the Court under a special agreement: Art 273 TFEU. 689 Art 256 TFEU read together with Statute of the Court of Justice of the European Union, Art 51. The same is true for disputes concerning the Union’s non-contractual liability. Furthermore, disputes between the Union institutions and their servants (so-called staff cases) are now adjudicated by the European Union Civil Service Tribunal (set up by Council Decision 2004/752/EC, Euratom of 2 November 2004 establishing the European Union Civil Service Tribunal [2004] OJ L333/7). Under Art 257 TFEU, the European Parliament and the Council may establish more specialised courts to hear at first instance certain classes of action in specific areas, which would allow for a transfer of more ‘administrative’ cases initiated by individuals from the General Court to such specialised courts. 690 Art 256(1) TFEU; Statute of the Court of Justice of the European Union, Arts 56 and 58. Such appeals must be filed within two months of the notification of the contested ruling of the General Court. 691 For a recent example, see Case C-364/10 Hungary v Slovak Republic [2012] ECR I-0000, where the Court found that the Slovak Republic had not violated EU law, more particularly the rules setting out the rights of Union

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Matters are different as far as the Court’s ability to act as the supreme court of the Union legal order is concerned. It has described safeguarding the uniformity of Union law as ‘its essential task’, in recognition of the link between the uniform application and interpretation of EU law and the overall effectiveness of European integration.692 Preliminary references, notably those inquiring about the correct interpretation of rules of EU law, make up the bulk of its workload and in fact threaten to overwhelm the Court of Justice. However, the Court has so far been reluctant to share its jurisdiction to provide guidance to national judges on matters of Union law with the General Court693 or contemplate a tightening of the conditions under which references would be admissible.694 It must be acknowledged that in the specific context of the European legal order, the functions of ensuring the uniformity of the law and upholding the Union’s constitutional charter cannot be entirely separated: ‘constitutional’ and ‘ordinary’ cases are intertwined; there is neither a special court nor special procedures for the former type of cases. This is due at least in part to the origins and evolution of the Court and the European legal order, and in part to the atypical character of the Union’s constitutional charter, which includes provisions that – at the national level – are not to be found in the constitution, but rather in ordinary legislation. To conclude, the Court of Justice has several constitutional functions analogous to those assigned to national constitutional courts. Yet, the treaties have not given the Court the same array of powers when it comes to carrying out those constitutional functions – notably as regards enforcing the vertical balance of powers – and have at the same time entrusted it with more functions than are commonly given to national constitutional courts. Accordingly, even though the Court of Justice may in its case law continue to progressively expand its constitutional role – for instance by enforcing the Union’s constitutional charter more strictly vis-à-vis the European legislature – there are limits to the changes it can itself effect in its portfolio of powers and responsibilities. As the Court emphasised in a 1995 report prepared for the Intergovernmental Conference that led to the signing of the Amsterdam Treaty: ‘it is essentially the Member States who have the task of drawing up and approving such amendments [concerning the Union’s judicial system] as are deemed necessary to meet the requirements of a Union which is, necessarily, always in a state of evolution.’695 What is important to note is the Court’s astute observation that its role and jurisdiction must remain dynamic and in tune with changes to the Union legal order; and, relatedly, that the normative choice as to the functions that the Court of Justice ought to perform along with the attendant powers it ought to possess at any given stage in the process of European integration should be made by the Union’s constituent Member States.

citizens to move within the Member States, by prohibiting the Hungarian president from entering its territory on what it considered to be a sensitive date. 692 It should also be noted that many rulings of the Court of Justice that have been of particular importance for the development of the EU legal order were delivered in response to preliminary questions raised by national courts. 693 A possibility that is recognised in Art 267(3) TFEU, introduced by the Nice Treaty but so far not implemented. 694 For instance, in Opinion 1/09 on the draft agreement on the European and Community Patents Courts [2011] ECR I-1137, the Court underscored the importance it attributes to Art 267 TFEU and was loath to admit of any incursions into its competence to receive requests for preliminary rulings. 695 Report of the Court of Justice on certain aspects of the application of the treaty on European Union (Luxembourg, May 1995) at 1.

Chapter 4 The Constitutional Bench I. INTRODUCTION

As the ultimate guardians of the constitution, it is not uncommon for constitutional courts to find themselves having to decide politically controversial questions or for their decisions to influence the political branches of government. Chapter three has shown that these courts have the competence to censure the legislature’s work, rule on the distribution of competences between State organs, and decide whether a political party should be banned, to name just a few of the functions exercised by European constitutional courts; and it is clear that in so doing, these courts may have to confront ‘political’ issues. Constitutional courts do not always decide the constitutional questions placed before them to the liking of the political branches of government, which may make their discontentment known in various ways. This may entail trying to change the court’s composition in an effort to secure a bench more amenable to the legislature’s or executive’s agenda. As explained by Grabenwarter in his keynote speech delivered on the occasion of the second World Conference of Constitutional Justice in 2011: The more powerful reaction to the case-law of a court may be exercised by nominating judges that are closer to politics. The effect and the possibilities in this respect depend largely on the national rules on nominating judges. . . . From a general perspective, professional requirements, long terms of office and a fixed age-limit, the division of rights to present candidates among different state organs and qualified majorities in election proceedings will reduce the possibilities of influencing the composition of a constitutional court as a reaction to certain case law.1

The threat of ‘court-packing’ was famously voiced by US president Roosevelt in response to perceived reactionist behaviour displayed by the US Supreme Court when examining the validity of ‘New Deal’ legislation.2 In more recent times, concern has been expressed about the rules regarding the hiring and firing of constitutional judges or decisions taken in this regard in several central and eastern European countries.3 More generally, this and other aspects pertaining to the composition of constitutional courts are important in determining 1 C Grabenwarter, ‘Keynote Speech: Separation of Powers and the Independence of Constitutional Courts and Equivalent Bodies’, 2nd Congress of the World Conference on Constitutional Justice, Rio de Janeiro, January 2011, 5. 2 On which, see eg J Shesol, Supreme Power: Franklin Roosevelt vs the Supreme Court (New York, WW Norton, 2010); B Solomon, FDR v the Constitution: The Court-Packing Fight and the Triumph of Democracy (New York, Walker & Co, 2009). 3 Consider, for instance, Venice Commission, Opinion 665/2012 on Act CLI of 2011 on the Constitutional Court of Hungary (CDL-AD(2012)009, Venice, 15–16 June 2012). Also, in late 2012, the European Commission expressed concern about two new appointments to the Bulgarian constitutional court which had taken place without any parliamentary debate, claiming that the integrity of one of the candidates was in serious doubt as a result of allegations of corruption and declaring, ‘The Commission [was] therefore concerned that the reputation of the Constitutional Court . . . is at stake’, reported in ‘Commission Warns Bulgaria over Judicial Independence’, Euractiv (31 October 2012), www.euractiv.com/central-europe/commission-threatens-bulgaria-ex-news-515795.

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the performance, status and perception of these institutions. The aim of the present chapter is to take stock of the various issues that are relevant in understanding the composition of selected European constitutional courts. To this end, we will first inquire into the selection and appointment process for constitutional justices (section II). Next, the qualifications that prospective members of constitutional courts must possess and the size of these institutions are examined (section III). This is followed by a discussion of constitutional judges’ terms of office and the ways in which they may be removed from the bench (section IV). Finally, there will be some closing comparative remarks and reflections on how the European Court of Justice fares when measured against the selected constitutional courts (section V).4 In the course of the discussion, it will become apparent to the reader that, on the whole, the approach taken by the legal systems is similar, though of course variances are apparent: this alone underscores the fact that there are different ways to establish and maintain both judicial legitimacy and independence within any given institutional setup.

II. SELECTION AND APPOINTMENT PROCEDURES

When it comes to the selection and appointment of constitutional judges, the different European countries under examination do not subscribe to a single model. Instead, three models can be distinguished.5 The first model places the decision on appointment entirely in the hands of the legislature, in many cases involving a special parliamentary election committee. In Germany, the two Houses of Parliament – the Bundestag and the Bundesrat – each select half of the judges of the Bundesverfassungsgericht.6 The Bundestag elects its quota of judges indirectly through an electoral committee (the Wahlmännerausschuss).7 This committee comprises 12 members, divided among the political parties in accordance with the proportion of seats that these parties hold in the Bundestag.8 Eight votes are required to elect a judge.9 The Bundesrat decides by a two-thirds majority vote in a plenary session on the election of its proportion of constitutional justices.10 The process of appointing new judges to the Hungarian Alkotmánybíróság commences with a special nominating committee of the Parliament 4 This chapter will not address the composition of the European Court of Human Rights, as set out in Arts 20–31 of the European Convention on Human Rights. For more information, see eg E Voeten, ‘Politics, Judicial Behaviour, and Institutional Design’ in J Christoffersen and M Madsen (eds), The European Court of Human Rights between Law and Politics (Oxford, Oxford University Press, 2011); E Voeten, ‘The Politics of International Judicial Appointments: Evidence from the European Court of Human Rights’ (2007) 61 International Organization 669. 5 These models are also prevalent in countries outside the sample discussed here, including countries that are not members of the European Union: see eg A Harding, P Leyland and T Groppi, ‘Constitutional Courts: Forms, Functions and Practice in Comparative Perspective’ (2008) 3 Journal of Comparative Law 1, 12–14. 6 German Basic Law, Art 94(1); Law on the Bundesverfassungsgericht, Art 5(1). In this process they are assisted by the federal ministry of justice, which maintains a list of suitable federal judges and candidates proposed by parliamentary factions of the Bundestag or the federal or a Land government who possess the necessary qualifications for appointment to the Bundesverfassungsgericht. This list is sent to the presidents of the Bundestag and the Bundesrat at least one week before the election of a new constitutional justice: Law on the Bundesverfassungsgericht, Art 8. For a more detailed examination of the judicial selection process, see D Kommers and R Miller, The Constitutional Jurisprudence of the Federal Republic of Germany, 3rd rev edn (Durham, NC, Duke University Press, 2012) 23–24. 7 Law on the Bundesverfassungsgericht, Art 6(1). 8 ibid, Art 6(2). 9 ibid, Art 6(5). 10 ibid, Art 7. It is generally considered unconstitutional for the Bundestag to have delegated responsibility for the election of new judges to this parliamentary committee: see H Jarass and B Pieroth, Grundgesetz für die Bundesrepublik Deutschland: Kommentar (Munich, CH Beck, 2006) 900 and the references therein.

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proposing candidates considered eligible for appointment.11 This parliamentary committee has between nine and 15 members who, as is the case in Germany, are appointed by the parties with representation in Parliament in proportions commensurate with the number of seats held by these parties.12 Prospective candidates are subsequently heard by the Parliament’s standing committee on constitutional matters.13 Bearing in mind the opinion delivered by this committee, the full Parliament will vote to appoint the new judge by a two-thirds majority of its component members.14 In Poland, the election process is the preserve of the lower House of Parliament, the Sejm.15 A group of at least 50 deputies or the presidium of the Sejm can propose candidates for appointment to the Trybunał Konstytucyjny. The actual appointment decision is taken by the Sejm as a whole, and requires an absolute majority of votes with no fewer than half of the MPs present.16 Under the second model, selection and appointment are the joint prerogative of the legislature and the (head of the) executive. Of the countries under examination, Belgium and the Czech Republic adhere to this system, although there are differences in the way in which cooperation between the political institutions is organised. Appointments to the Belgian constitutional court are effected by the government, which must select one of two candidates proposed alternatively by the House of Representatives and the federal Senate.17 Each House of Parliament must decide on its nominations for the Cour constitutionnelle by a two-thirds majority vote. In contrast, in the Czech Republic, it is the president, as head of the executive, who initiates the procedure and selects the candidates for appointment to the Ústavní Soud.18 The prospective judges are subsequently presented to the Senate, the upper house of the Czech Parliament, for approval. Its standing committees on legal and constitutional affairs and on education, science, culture, human rights and petitions will first scrutinise the nominations and recommend whether the Senate as a body should confirm the appointment. This is followed by a plenary hearing before the Senate, at which the rapporteurs of the two parliamentary committees as well as the candidate are present. The decision to confirm (or reject) candidates for appointment to the Ústavní Soud is taken by the Senate by a simple majority vote.19 The collaborative model of appointment can result in a deadlock, however, as has happened in the Czech Republic: Act CLI of 2011 on the Constitutional Court, Art 7(1). Each party that holds seats in Parliament is legally entitled to appoint at least one member of the nominating committee: Act CLI of 2011 on the Constitutional Court, Art 7(1). While the current appointment procedure resembles that in place under the pre-2011/2012 constitutional framework, a noticeable difference is that the nominating committee used to comprise only (instead of ‘at least’) one member of each political party that was represented in Parliament: Hungarian constitution, § 32/A(4). 13 Act CLI of 2011 on the Constitutional Court, Art 7(2). 14 Hungarian Fundamental Law, Art 24(4). In the event that Parliament fails to elect the proposed candidate, the nominating committee must suggest another person for appointment to the constitutional court within 15 days: Act CLI of 2011 on the Constitutional Court, Art 8(2). 15 Polish constitution, Art 194(1). 16 Constitutional Tribunal Act, Art 5(4). The Sejm is composed of 460 deputies (Polish constitution, Art 96(1)), so any votes on the appointment of constitutional judges require the presence of at least 230 deputies. 17 Special Act on the Constitutional Court, Art 32. Although the text speaks of the monarch selecting the successful candidate, in actual fact this decision is taken by the government. 18 Czech constitution, Art 84(2); Act on the Constitutional Court, § 6. 19 The Act on the Constitutional Court, § 6(2) states that if the Senate fails to vote on the candidate nominated by the president within 60 days, it is deemed to have given its approval for appointment. The selection and appointment procedure applicable to justices in the Czech Ústavní Soud is similar to the system that prevails in the United States for the nomination and confirmation of justices to the US Supreme Court. This similarity is attributed to the influence of US constitutional thinking during the drafting the 1920 Czechoslovak constitution, which in turn served as a model for the post-Communist Czechoslovak and later Czech constitutions. 11 12

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[B]etween 2003 and 2005, the President and the Senate could not achieve accord on the new appointments. The nominees presented to the Parliament by President Klaus were repetitively rejected. As a result, between summer 2003 and autumn 2004, the Court was not able to decide on the constitutionality of laws [due to lack of the necessary quorum for decision-making, MdV] . . . In reality, the main cause of the conflict was the difficult relationship between the President, formerly a party leader, and the Senate controlled by rival parties.20

Under the third model, the power to select constitutional justices is distributed among several public institutions, which independently of each other appoint a portion of the constitutional bench. In France, the president of the republic, the president of the National Assembly and the president of the Senate each appoint an equal number of members of the Conseil constitutionnel.21 Originally, members of the two Houses of Parliament had no part to play in this process and the unbridled discretion enjoyed by the three presidents in the exercise of their power of appointment was criticised as politicising the selection process and concomitantly also the composition of the Conseil constitutionnel.22 To ameliorate this situation, the 2008 comprehensive revision of the French constitution introduced some degree of parliamentary control over the appointment process. Nominees chosen by the president of the National Assembly and the president of the Senate must be presented to the relevant standing committee, which can give non-binding advice. The president of the republic must exercise his power of appointment in consultation with the competent standing committees in both Houses of Parliament. In the event that these committees reject the proposed candidate by at least three-fifths of the total number of votes cast, the president is vetoed from confirming his choice for a seat on the Conseil constitutionnel.23 However, it does not appear that the introduction of greater parliamentary involvement has thus far had a significant practical impact on the process for appointment to the Conseil constitutionnel.24 In Italy, the quota for appointing judges to the Corte costituzionale is shared equally between the president, Parliament meeting in joint session and by various senior courts (the court of cassation, the council of state and the court of auditors).25 Each of these can select and appoint five justices. Parliament takes its decisions in this regard by means of a two-thirds majority vote.26 The design of the Italian shared appointment system is prompted by the desire to ensure ‘the presence, within the Court, of a range of different institutional sensitivities, corresponding to each of the various entities entrusted with the 20 K Lach and W Sadurski, ‘Constitutional Courts of Central and Eastern Europe: Between Adolescence and Maturity’ (2008) 3 Journal of Comparative Law 212, 223. More generally on the appointment of constitutional justices in the Czech Republic, including in historical perspective, see Z Kühn and J Kysela, ‘Nomination of Constitutional Justices in Post-Communist Countries: Trial, Error, Conflict in the Czech Republic’ (2006) 2 European Constitutional Law Review 183. 21 French constitution, Art 56; Ordinance no 58-1067 on the Constitutional Council (as amended), s 1. 22 D Rousseau, Droit du contentieux constitutionnel, 9th edn (Paris, Montchrestien, 2010) 59. 23 French constitution, Art 56 read together with Art 13, final paragraph. 24 See P Wachsmann, ‘Sur la composition du Conseil constitutionnel’ (2010) 5 Ius politicum: revue de droit politique 1, who offers a more general critique of the procedure for selecting and appointing members of the Conseil constitutionnel. 25 Italian constitution, Art 135(1). As for the selection of judges by the three senior Italian courts, Law no 87/1953, Art 2 provides that the court of cassation can appoint three judges and that the Council of State and the court of auditors can each elect one judge. 26 Law no 87/1953, Art 2. If, after the third vote on a candidate, the requisite two-thirds majority cannot be attained, the threshold is relaxed to a three-fifths majority in favour: constitutional law no 2/1967, Art 3. On the appointment of the very first judges to the Italian court by parliament, see S Alito, An Introduction to the Italian Constitutional Court (Woodrow Wilson School Scholar Project for Professor Walter Murphy, 1972), www.princeton. edu/~mudd/news/Alito_thesis.pdf, 56–83.

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selection of judges’.27 Finally, of the various European countries under study, Spain has divided the power to take staffing decisions regarding the Tribunal Constitucional among the greatest number of bodies.28 Each House of Parliament – ie the congress of deputies and the Senate – selects four judges and does so by a three-fifths supermajority. Before the actual voting takes place, the relevant parliamentary committees are expected to hold a hearing on the nomination.29 It is further envisaged that the Senate’s nominees for the post of constitutional justice are chosen from a list drawn up by the legislative assemblies of the Spanish autonomous communities.30 The central government and the general council of the judiciary each select two further members of the Tribunal Constitucional.31 Following their nomination, the king will formally appoint the new judges.32 Reflecting on the selection and appointment procedure for constitutional justices, the European countries all envisage the participation of Parliament in this process, although its precise involvement varies. Parliament can act primarily in an advisory capacity, as in France, or may have the power to make unilateral appointments, as happens for instance in Germany and Hungary. Allowing Parliament to participate in the hiring of constitutional court judges can be considered to enhance the democratic credentials of the new appointments and the court as a body.33 Furthermore, in light of the powers given to constitutional courts, notably their responsibility for reviewing the constitutionality of statutes, it may be appropriate to give Parliament a say in the staffing of the body that should keep it in check. At the same time, Parliament’s involvement in the process of selecting and appointing constitutional judges is not without risk. In particular, the governing party or parties may bring an excessive influence to bear on the choice of candidates put forward for elevation to the bench. To counteract this danger, most countries prescribe that appointment decisions must be taken by a special majority vote, usually with either two-thirds or even three-fifths of all Members of Parliament voting in favour. The upshot is that there will normally have to be negotiations and compromises between the ruling party and the parties in opposition. This is expected to result in choices for new constitutional justices being acceptable to parliamentarians across the political spectrum and should ideally also mean that a country’s main political persuasions are represented in the constitutional court. We should, however, realise that the national political and constitutional culture is an important factor in determining the extent to which such expectations will actually materialise. Consider the 27 Constitutional Court of the Italian Republic, Constitutional Justice: Functions and Relationship with the Other Public Authorities, National Report for the XVth Congress of the Conference of European Constitutional Courts (2011), 1. For a description of alternative approaches to the selection of judges that were debated at the time of the drawing up of the post-fascist Italian constitution, see M Volcansek, ‘Bargaining Constitutional Design in Italy: Judicial Review as Political Insurance’ (2010) 33 West European Politics 280, 285–86. 28 Spanish constitution, Art 159(1). 29 Organic Law 2/1979 on the Constitutional Tribunal, Art 16(2). Although this provision stipulates that such hearings are mandatory, it refers to the parliamentary standing orders to take care of the necessary organisational aspects. Since those of the congress of deputies at the time of writing do not contain any provisions governing the hearing of prospective constitutional judges, such hearings do not in actual fact take place. 30 Organic Law 2/1979 on the Constitutional Tribunal, Art 16(1). 31 The general council of the judiciary also decides with a three-fifths majority vote on its nominees: Organic Law 6/1985 on the judiciary, Art 107(2). 32 Organic Law 2/1979 on the Constitutional Tribunal, Art 16(1). 33 This rationale is often mentioned in relation to the German Bundesverfassungsgericht: see eg K von Beyme, ‘The German Constitutional Court in an Uneasy Triangle between Parliament, Government and the Federal Laender’ in W Sadurski (ed), Constitutional Justice, East and West: Democratic Legitimacy and Constitutional Courts in Post-Communist Europe in a Comparative Perspective (The Hague, Kluwer Law International, 2002) 103; K Schlaich and S Korioth, Das Bundesverfassungsgericht: Stellung, Verfahren, Entscheidungen (Munich, CH Beck, 2007) 25.

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following excerpt, in which a former judge of the Polish Trybunał Konstytucyjny argues that between 1989 and 2002, a constitutional practice emerged in Poland whereby the governing party would unilaterally decide who to appoint to the country’s constitutional tribunal: In twenty seven cases the elected candidates were put forward by the groups belonging to the then parliamentary majority. Even though in most cases the opposition also proposed some candidates, they never received the required majority. This means that the majority parties, regardless of their political provenance, believed that they did not have to share decisions concerning appointments with the Opposition, and as this political behaviour turned into a custom it became increasingly apparent that each change of political configuration of the Sejm will be reflected in future appointments.34

III. NUMBER OF JUDGES AND ELIGIBILITY CRITERIA

This section features a discussion of the number of judges in the selected European courts, followed by an examination of the criteria that candidates must meet to be considered eligible for appointment as a judge in the constitutional court.

A. Number of Judges The different European countries do not subscribe to a single approach when it comes to the size of their constitutional courts. The Bundesverfassungsgericht formally has the largest number of judges, 16 in total.35 Having said that, it should be mentioned that the German court consists of two Senates of eight members each and that judges are not appointed to the Bundesverfassungsgericht as such but specifically to one of these Senates.36 The two Senates have their own sphere of exclusive jurisdiction and they cannot in principle exercise powers that have been attributed to the other Senate.37 The plenum comprising all 16 judges takes very few substantive decisions, so that the Bundesverfassungsgericht in effect performs its various constitutional functions with eight judges.38 Counting down, the 34 L Garlicki, ‘The Experience of the Polish Constitutional Court’ in Sadurski, Constitutional Justice, East and West (n 33) 268. On the important role that the governing party plays in practice as regards the selection and appointment of new judges in Germany, see Kommers and Miller, The Constitutional Jurisprudence of the Federal Republic of Germany (n 6) 23–24. But see Kühn and Kysela, ‘Nomination of Constitutional Justices in PostCommunist Countries’ (n 20) 187, who argue that the Trybunał Konstytucyjny is staffed by the best Polish academics and that ‘despite the absence of any checks and balances [the appointment procedure has] generated the most respected post-communist constitutional court’. 35 At the time of its establishment, the Bundesverfassungsgericht was expected to comprise 24 judges. This number was revised downwards to 20 in 1956 and then further reduced in 1962 to the current number of 16 judges. 36 Law on the Bundesverfassungsgericht, Art 2(1) and (2). As a rule, judges cannot participate in the deliberations of the other Senate, unless that Senate does not have its quorum of six judges in a particularly urgent matter, in which case judges can act as temporary substitutes in the other Senate to enable it to take decisions: Law on the Bundesverfassungsgericht, Art 15(2). 37 The precise division of jurisdiction between the two Senates can be found in the Law on the Bundesverfassungsgericht, Art 14. The plenum may readjust the internal allocation of tasks to prevent either of the Senates from being systemically overburdened. 38 In addition, each Senate is further subdivided into chambers of three judges each, which are primarily responsible for deciding on the admissibility (and occasionally also the merits) of constitutional complaints. For further detail, see ch 3, section III-B.

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constitutional courts in the Czech Republic, Hungary,39 Italy and Poland all comprise 15 judges.40 In Spain and Belgium there are 12 constitutional justices,41 although the Cour constitutionnelle in fact hears and decides the cases submitted to it by a bench comprising seven judges.42 The French Conseil constitutionnel seems the smallest of the constitutional courts under examination, with only nine appointed members.43 However, a peculiarity of the French system is that former presidents of the republic are ex officio life members of the Conseil constitutionnel should they choose to accept this office.44 A number of former presidents have indeed done so45 and at the time of writing, the Conseil had three such members: Valéry Giscard d’Estaing (de jure member since 1981), Jacques Chirac (de jure member since 16 May 2007) and Nicolas Sarkozy (de jure member since 2012).46

B. Qualifications that New Judges Must Possess To obtain a more complete picture of the nomination and appointment of new constitutional justices, it is also important to consider the qualifications that potential members of the court must possess. In what follows, the eligibility criteria that apply in the selected European countries are set out. We will start with the most liberal regime and conclude with a description of the most complex and demanding set of requirements for candidates for appointment to the constitutional court. 39 Before the constitutional reforms that took place in 2011 and 2012, the Hungarian constitutional court had 11 judges (Hungarian constitution, § 32/A(4); Act XXXII of 1989 on the Constitutional Court, Art 4). 40 Czech constitution, Art 84(1); Hungarian Fundamental Law, Art 24(4); Italian constitution, Art 135(1); Polish constitution, Art 194(1). In certain instances, these four courts will adjudicate claims submitted to them with fewer or conversely more than 15 judges. The Czech Ústavní Soud can decide cases brought under Art 87(1) (c)–(f), (i) and (k) – notably including constitutional complaints and petitions related to electoral disputes – by panels of three judges (Act on the Constitutional Court, § 15 read together with § 11). While the Hungarian Alkotmánybíróság is expected to hear most cases as a full court, it can also sit in panels comprising at least five members or give decision-making powers to a single judge (Act CLI of 2011 on the Constitutional Court, Arts 47 and 50(2)). The Italian Corte costituzionale is enlarged for the purposes of hearing impeachment proceedings, with 16 additional members. These additional members must be ordinary citizens eligible to stand as candidates in elections for the Senate (ie be at least 40 years of age: Italian constitution, Art 58(2)) and are drawn by lot every nine years (Italian constitution, Art 135(7)). Finally, the Polish Trybunał Konstytucyjny can sit as a full bench or in panels of five or three judges. In particular, the five-member bench is used in cases concerning the alleged incompatibility of statutes with the constitution or ratified international agreements as well as those involving alleged conflicts between such agreements and the constitution: Constitutional Tribunal Act, Art 25. 41 Special Act on the Constitutional Court, Art 31; Spanish constitution, Art 159(1). While the Spanish Tribunal Constitucional in principle hears cases brought under its various heads of jurisdiction as a full court, it may also sit in chambers of six judges or as three-judge benches (Organic Law 2/1979 on the Constitutional Tribunal, Art 6). The smaller formations are used mainly for hearing constitutional complaints. See also ch 3, section III-B. 42 Special Act on the Constitutional Court, Art 55. See further below, text between n 73 and n 79. 43 French constitution, Art 56 first paragraph. 44 French constitution, Art 56 second paragraph. 45 For a brief discussion of the strategic refusal of such membership to make a political point, see Rousseau, Droit du contentieux constitutionnel (n 22) 60–61. 46 The Balladur Commission (named after its chair), which was asked to prepare the 2008 constitutional revision, had proposed to abrogate this right of de jure membership of the Conseil constitutionnel for former presidents. It argued that doing so would recognise and reinforce the Conseil’s increasingly important judicial role and character and that former presidents typically continue to take part in public life, which can sometimes be difficult to reconcile with the obligations of discretion and restraint that are to be expected of members of the Conseil constitutionnel: Report of the comité de réflexion et de proposition sur la modernisation et le rééquilibrage des institutions de la Ve République, Une Ve République plus démocratique. This suggestion was, however, not taken up by Parliament.

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The rules governing appointments to the French Conseil constitutionnel are exceptional, in that they do not lay down any eligibility criteria for future members: there is no age limit, no need for legal qualifications or a particular type of past work experience or even a general condition that new judges should be of high moral character. The three presidents who decide on selection and appointment are thus largely unencumbered and may choose whomever they would like,47 subject to whatever influence the standing parliamentary committees can exert on their choice when advising on the suitability of the nominees. The upshot is that ‘As a matter of fact, more than two thirds of the 60 members of the [Conseil constitutionnel] to date have been active in politics before joining it, as members of government (about one third), members of Parliament, or direct advisers of major politicians’.48 In addition, many former members of the Conseil d’État and judges in the Cour de cassation have been nominated to serve on the Conseil constitutionnel. Further, a sizeable proportion of members of the Conseil constitutionnel in fact hold law degrees, although very few professors of law have been appointed.49 In Poland, the constitution stipulates that judges of the Trybunał Konstytucyjny are to be selected from amongst ‘persons distinguished by their knowledge of the law’.50 In addition, the Polish Constitutional Tribunal Act provides that ‘a person who possesses the necessary qualifications to hold the office of a judge of the Supreme Court or the Chief Administrative Court’ is eligible for membership of the constitutional court.51 These qualifications include at least 10 years of work experience as a judge, public prosecutor, lawyer, legal advisor or notary public,52 which serves to reduce the likelihood of career MPs being appointed. In contrast to the situation in France, it has been noted that in Poland, an academic career is the most common prerequisite for candidacy for the office of judge at the constitutional court.53 Future members of the Czech constitutional court must be Czech citizens of irreproachable character.54 They should also meet the requirements for standing as a candidate in Senate elections, which means that they should have the right to vote and be at least 40 years old.55 Further, prospective judges should have a university degree in law and have a minimum of 10 years’ experience working in the legal profession. This last condition is not further defined, but it can be assumed that it will include having been a judge or public prosecutor or having practised as a lawyer or notary public.56 47 But see Wachsmann, ‘Sur la composition du Conseil constitutionnel’ (n 24) 16–17, who emphasises that it would not be legally permissible to appoint candidates who would be manifestly unsuited to the post of member of the Conseil constitutionnel with reference to the 1789 Declaration of the Rights of Man and of the Citizen, Art 6 (providing that all citizens ‘shall be equally eligible to all high offices, public positions and employments, according to their ability, and without other distinction than that of their virtues and talents’). 48 M-C Ponthoreau and F Hourquebie, ‘The French Conseil Constitutionnel: An Evolving Form of Constitutional Justice’ (2008) 3 Journal of Comparative Law 269, 273. 49 Further: Rousseau, Droit du contentieux constitutionnel (n 22) 62–70, which includes a table listing, amongst other things, the president responsible for the nomination, the age of new members at the time of their appointment, their previous occupation, and their involvement (if any) in political activities. 50 Polish constitution, Art 194. 51 Constitutional Tribunal Act, Art 5(3). 52 Act on the supreme court, Art 22. This requirement is waived for law professors working in Poland. In addition to the need for 10 years of legal practice, one must be (i) a Polish citizen in full enjoyment of civil and public rights; (ii) a person of integrity; (iii) having completed a legal university education; (iv) be distinguished by a high level of juridical knowledge; (v) have the necessary fitness levels to carry out the tasks of a justice of the supreme court. 53 See Garlicki, ‘The Experience of the Polish Constitutional Court’ (n 34) 269. 54 Czech constitution, Art 84(3). 55 ibid, Art 19(2). 56 See also K Klíma, ‘La justice constitutionnelle en république tchèque’ in M Verdussen (ed), La justice constitutionnelle en europe centrale (Brussels, Bruylant, 1997) 201.

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The qualifications that prospective members of the Hungarian constitutional court must possess are similar to those that must be satisfied by new Czech constitutional justices. Successful candidates must hold Hungarian citizenship, have reached the age of 45, be eligible to run for Parliament and have no criminal record.57 They should also have earned a degree in law. Future judges must be chosen from among ‘theoretical lawyers of outstanding knowledge’ – a term that is taken to denote university professors or doctors of the Hungarian Academy of Sciences – or other professionals (such as lawyers or high functionaries) with a minimum of 20 years’ experience in the legal field.58 Interestingly, the Hungarian rules also include a temporal ban on the appointment of certain professionals to the Alkotmánybíróság. It is not permissible to appoint to the court persons who have been a member of the government, a leading official in a political party or a leading state official in the four years prior to their nomination to take up a seat on the constitutional bench.59 In Italy, prospective constitutional judges should be selected from three professional groups: the regular judiciary (which may also include retired judges), university professors of law, and lawyers who have practised at the bar for at least 20 years. Unsurprisingly, the senior courts – which, it will be recalled, can appoint one-third of the Corte costituzionale’s justices – tend to nominate members of the ordinary judiciary in preference to persons belonging to the other two categories.60 Presidential nominees are often university professors.61 The qualifications for selection and appointment to the Corte costituzionale are seen as an important guarantee of the court’s independence. As explained by one of its former presidents: This provision [setting out the eligibility criteria] means not only that no justice can sit on the Court without being outstandingly competent in the field of law, but also that the justices are chosen from among people constrained by the tradition of their profession or their office to act independently and impartially.62

Turning to Spain, membership of the Tribunal Constitucional is restricted to Spanish citizens.63 More importantly, judges should be ‘jurists of recognised standing’ and have at least 15 years of relevant working experience.64 The Spanish constitution further indicates the different professional backgrounds from which the constitutional justices may be drawn. Candidates for judicial appointment must be chosen from among regular judges and prosecutors, university professors, public officials and practising lawyers.65 The composition of the Tribunal Constitucional has changed over the years: initially, the majority of judges were drawn from the ranks of academia, but these days the proportion of former 57 Act CLI of 2011 on the Constitutional Court, Art 6(1). The current eligibility criteria are largely the same as those applicable under the old constitutional framework, when they were laid down in Act XXXII of 1989 on the constitutional court, Art 5. 58 ibid. 59 Act CLI of 2011 on the Constitutional Court, Art 6(4). 60 Constitutional Court of the Italian Republic, Constitutional Justice: Functions and Relationship with the Other Public Authorities (n 27) 1. 61 For instance, all five judges appointed by the president to serve in the Corte costituzionale in 2012 were former law professors. 62 A Baldassarre, ‘Structure and Organization of the Constitutional Court of Italy’ (1995) 40 St Louis University Law Journal 649, 653–54. 63 Organic Law 2/1979 on the Constitutional Tribunal, Art 18. 64 Spanish constitution, Art 159(2). 65 ibid.

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law professors and the number of former magistrates (notably of the supreme court) is largely the same.66 The prerequisites for appointment to the German Bundesverfassungsgericht are, first, that the candidate has attained the age of 40 and is eligible to stand as a candidate in elections to the Bundestag.67 Future members must further be qualified to hold judicial office, which is assessed by examining whether they meet the conditions laid down in the German Judiciary Act.68 Unlike the countries examined so far, the Houses of Parliament – which, it will be recalled, hold the power to select and appoint judges to the Bundesverfassungsgericht – are somewhat restricted in their choice of candidates who possess the qualifications just listed. This is because the relevant rules prescribe that the five federal supreme courts must be represented in the Bundesverfassungsgericht.69 To be more precise, within each Senate, three of the eight members must be chosen from among the judges of these federal supreme courts,70 with the additional proviso that they should have served on the bench for at least three years before they can be considered for the post of constitutional justice. The remaining 10 judges may be drawn from the political establishment.71 However, following their appointment to the Bundesverfassungsgericht, their membership of a federal or Land legislative or executive institution will come to an end.72 In practice, justices with a strong academic background dominate the Bundesverfassungsgericht, with most members holding doctorates in law and several judges having enjoyed a prior career as well-established constitutional law scholars. Finally, the selection criteria governing appointment to Belgium’s Cour constitutionnelle are particularly detailed and designed so as to accommodate various interests and concerns. As with many of the other courts examined here, an age limit applies: candidates should be at least 40 years old.73 There is a language requirement that must be complied with, in recognition of Belgium having multiple linguistic regions.74 Half of the 12 judges on the Cour constitutionnelle must be Dutch-speaking and constitute the court’s Dutch language group; the other half should be French-speaking and form the French language group.75 Moreover, at least one of the 12 judges must have ‘adequate knowledge of German’.76 The language requirement also influences the practical operation of the Cour constitutionnelle: each language group selects its own president from among its members77 66 J Requejo Pagés, ‘Spanien’ in A Von Bogdandy, C Grabenwarter and P Huber (eds), Ius Publicum Europaeum – Band VI: Verfassungsgerichtsbarkeit im europäischen Rechtsraum (Heidelberg, CF Müller, forthcoming) no 27. 67 Law on the Bundesverfassungsgericht, Art 3(1). 68 ibid, Art 3(2) read together with the German Judiciary Act, Art 5(1). In brief, the conditions are that one must have successfully completed the first and second state bar examinations. 69 German Basic Law, Art 94(1); Law on the Bundesverfassungsgericht, Art 2(3). 70 These are: the federal court of justice (Bundesgerichtshof), the federal court of administration (Bundesverwalt ungsgericht), the federal finance court (Bundesfinanzhof), the federal labour court (Bundesarbeitsgericht) and the federal social court (Bundessozialgericht). 71 Parliamentary factions in the Bundestag, federal and Land governments are also explicitly given the power to propose candidates to the Bundesverfassungsgericht, provided of course that they meet the eligibility criteria mentioned above: Law on the Bundesverfassungsgericht, Art 8(2). 72 ibid, Art 3(3). 73 Special Act on the Constitutional Court, Art 34(1). 74 Art 4 of the Belgian constitution identifies four such regions: the Dutch-speaking region, the Frenchspeaking region, the bilingual region of Brussels-Capital, and the German-speaking region. 75 Special Act on the Constitutional Court, Art 31. The determination of the language of a particular judge is done either with reference to the language of his/her law degree or with reference to the language group in Parliament of which he/she was a member prior to appointment to the Cour constitutionnelle. 76 Special Act on the Constitutional Court, Art 34(4). 77 ibid, Art 33.

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and the court’s presidency is held alternately by the presidents of the Dutch and French language groups for a duration of one year, starting on the first day of September.78 The Cour constitutionnelle usually deliberates and decides in panels of seven judges, comprising three judges of each language group and the president, which gives the latter the decisive vote in the event of a tie.79 There have been repeated proposals over the years to adjust the current language parity to reflect the greater proportion of Dutch-speaking Belgians – the Flemish make up about 60 per cent of the Belgian population as compared to approximately 30 per cent of Walloons – but at the time of writing, none of these has been adopted.80 The composition of the Cour constitutionnelle is further determined by requirements regarding the prior professional experience of its judges. Half of the justices – three from each language group – must have a legal background. This means that the successful candidate must have been either a member of the Cour de cassation or the Conseil d’État, a clerk at the Cour constitutionnelle81 or a professor of law at a Belgian university, for at least five years.82 The other half of the judges – so again, three from each language group – should have at least five years of experience as members of either the federal Parliament or a community or regional legislative assembly.83 To be clear, these judges are not required to be in possession of a law degree. Finally, the Belgian selection criteria also address the question of gender in judicial appointments by requiring that the Cour constitutionnelle comprises members of both sexes.84 When looking from a comparative perspective at the prerequisites for becoming a constitutional judge, several remarks are warranted. The preponderance of the selected European countries require candidates for appointment to the constitutional court to be legally trained, although there is some variety in the precise threshold that must be crossed. This is readily understandable when considering that constitutional courts are conceived – and themselves eager to emphasise and cultivate their character – as judicial institutions, deciding issues that are presented as legal problems by making use of legal reasoning and judicial decision-making techniques. At the same time, it has been correctly observed that it is not self-evidently the case that all the constitutional court judges need to be legally trained. It can be maintained that too much of a premium is placed on this type of technical judicial experience. The tasks confronting a constitutional court will often be different from those that are faced by ordinary courts. While cases are presented in legal terms the court may find itself presiding over disputes with profound political, social/ethical and economic implications.85

It may thus be important for future candidates for appointment to the constitutional courts to possess other qualifications in terms of skills or knowledge that may have a beneficial effect on the courts’ ability to perform their constitutional functions, which in turn can contribute to their public and political legitimacy. Looking at the various European countries, it is clear ibid, Art 54. ibid, Art 55. 80 See, for instance, the proposal submitted by W Verreycken to the Belgian Senate on 4 November 1999 (session 1999–2000, 2-140/1). 81 The prerequisites for employment as a clerk are that one is at least 25 years old and holds a university degree in law: Special Act on the Constitutional Court, Art 36. 82 Special Act on the Constitutional Court, Art 34(1). 83 ibid, Art 34(2). 84 ibid, Art 34(5). 85 Harding, Leyland and Groppi, ‘Constitutional Courts’ (n 5) 14. 78 79

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that the cohort of constitutional justices in practice is not always (very) homogeneous, in particular as regards their prior professional experience and background. In a similar vein, we should consider which groups or interests are represented in European constitutional courts. First, in many countries candidates for appointment to the constitutional court are drawn from the regular judiciary. For instance, we have seen that future members of the Italian Corte costituzionale and the Spanish Tribunal Constitucional are recruited from the ordinary courts and that the participation of the regular judiciary in staffing decisions (through either the senior courts or the general council for the judiciary) ensures the presence of at least a certain number of regular judges on the constitutional bench. In Germany and Belgium, the relevant rules even require a specified quota of such judges among the overall cohort of constitutional justices. The rationale for this arrangement is presumably the wish to ensure a good modus vivendi between the regular judiciary and the constitutional court, since the latter is in a number of ways dependent on the cooperation of the former. For instance, the constitutional court relies on the regular judiciary for the supply of sufficient preliminary questions to enable it to carry out its task of assessing the validity of statutes and thereby keeping the legislature in check. Another issue is whether ordinary judges treat rulings of the constitutional court as binding or as persuasive authorities only.86 Secondly, many constitutional courts can count professors of law or persons with an academic background among their members. The excerpt below explains why this choice deserves to be endorsed: If, as Alexander Bickel said when justifying judicial review in the American context, judges should have ‘the leisure, the training, and the insulation to follow the way of the scholar in pursuing the ends of government’, it seems advisable to appoint some professors who have pursued theoretical inquiries in an academic atmosphere of peace and quiet.87

Having former academics on the bench may also exert an impact on the court’s style of reasoning in deciding constitutional issues. This can take the form of more or longer theor etical reflections on underlying constitutional notions or idea(l)s or, to the extent that this is accepted practice, a greater number of references to doctrinal works in the court’s rulings. Academics and in particular ordinary judges are apt to provide the constitutional court with the necessary technical legal expertise, and their presence may contribute to the court’s independence, along the lines suggested in relation to the Italian Corte costituzionale above. Matters are different when it comes to a third professional group represented in several constitutional courts: former politicians. In France, the composition of the Conseil constitutionnel is strongly tied to the political establishment, the Belgian Cour constitutionnelle is required by law to comprise six former politicians, and Spanish constitutional judges may amongst others be chosen from among public officials. Even where the relevant legal rules do not explicitly contemplate the possibility of including persons with political experience among the cohort of constitutional justices, there have been appointments of former Members of Parliament and government ministers to the constitutional 86 This is notably the case in Italy, where some types of judgments of the Corte costituzionale are not considered to produce erga omnes effects, as discussed further in ch 6, section III and section V-A. 87 V Ferreres Comella, Constitutional Courts & Democratic Values: A European Perspective (New Haven, Yale University Press, 2009) 41. The quote from Alexander Bickel comes from his The Least Dangerous Branch: The Supreme Court at the Bar of Politics (New Haven, Yale University Press, 1962) 25.

NUMBER OF JUDGES AND ELIGIBILITY CRITERIA 217

bench. The frequency with which this happens varies, however, depending in part on the amount of legal knowledge and length of legal experience that is demanded of every prospective judge in the given constitutional system. Selecting and appointing candidates with a political background to the constitutional court can be defended on various grounds. For one, it should help raise awareness within the court of the political dimension inherent in its work, which may call for a more lenient standard of review at times or at least point towards some manner of judicial sensitivity in crafting judgments with policy implications. Relatedly, the presence of former politicians on the constitutional bench may breed (more) acceptance of the court’s rulings by the political branches of government, whose work the constitutional court is frequently called upon to review.88 This may be beneficial for the court’s political legitimacy and its effectiveness in upholding the constitution. Another aspect that warrants consideration concerns the composition of those constitutional courts that are empowered to adjudicate jurisdictional disputes between the central level and the lower tiers of government. Is the selection and appointment process organised so as to ensure the representation of the concerns and interests of the (quasi)federated entities on the constitutional bench? Given the nature of this inquiry, and bearing in mind the choice of countries systematically examined in this book, this directs our attention to the composition of the constitutional courts in Germany, Belgium, Spain and Italy.89 Of these, the Belgian Cour constitutionnelle most clearly reflects a federal element in its composition, as the six justices who should have prior experience as lawmakers could have acquired their work experience either by having been members of the federal Parliament or through membership of the legislative assemblies at the level of the regions or the communities. In Germany, Article 36(1) of the Basic Law prescribes that civil servants employed by the highest federal authorities should be drawn from the various Länder in an appropriate proportion, so as to ensure that the Länder have an influence on federal organs. However, the Bundesverfassungsgericht is the only federal constitutional organ (Verfassungsorgan) not to be subject to this principle of regional proportionality. In both Germany and Spain, some degree of regional representation can however be achieved through the involvement of the Senate (as the representative of the lower echelon of government) in staffing decisions, as the Senate in both countries has the right to appoint a certain quota of the court’s membership. It has, for instance, been said that ‘the participation of the Bundesrat in the selection of the [Bundesverfassungsgericht’s] Justices was meant to ensure that the Court was, at least with respect to staffing, steeped in Germany’s federalism’.90 Turning to Spain, the organic law on the Tribunal Constitucional was revised in 2007, to require amongst other things that the Senate choose its nominees for appointment to the post of constitutional justice from a list proposed by the legislative assemblies of the autonomous communities. The validity of this modification was however challenged before the Tribunal Constitutional, on the ground that the Spanish constitution does not circumscribe the Senate’s power to select and approve candidates in any way. While the impugned provisions were upheld, the constitutional 88 Although it should be acknowledged that the presence of former politicians may also cast doubt on the true objectivity and independence of certain decisions. 89 For a more detailed comparison of these courts, the Austrian constitutional court and the Court of Justice of the European Union as far as their competence to resolve vertical competence disputes is concerned, including reflections on their composition in this light, see M Claes and M de Visser, ‘The European Court of Justice as a Federal Constitutional Court: A Comparative Perspective’ in E Cloots, G De Baere and S Sottiaux (eds), Federalism in the EU (Oxford, Hart Publishing, 2012). 90 D Kommers and R Miller, ‘Das Bundesverfassungsgericht: Procedure, Practice and Policy of the German Federal Constitutional Court’ (2008) Journal of Comparative Law 194, 199.

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judges also ruled that the Senate would regain full discretion to nominate candidates of its own choosing if those proposed by the autonomous communities fail to garner the requisite number of Senate votes.91 In some contrast to the approach adopted in the other countries, the rules governing appointment to the Italian Corte costituzionale appear to have been designed without any intention of ensuring that the interests of the regions are duly represented on the bench. Over the course of the years, the position of the regions vis-à-vis the central level has been strengthened in the context of a complex process of decentralisation, but there have so far been no proposals to change the selection and appointment system so that constitutional justices achieve some degree of regional representation. Finally, it is important to remember that, besides their professional qualifications and work experience prior to joining the court, constitutional justices will also have ideological and policy preferences. These and other factors (such as their background, education and environment) should be borne in mind when studying the behaviour of particular judges or the performance of the constitutional court as a body. Indeed, there is a growing body of sociological and political science literature that seeks to measure the dispositions of judges and understand what impact, if any, these have on the decisions made by constitutional courts.92

IV. TENURE OF JUDICIAL APPOINTMENTS AND TERMINATION THEREOF

This penultimate section addresses the duration of a constitutional justice’s term of office as well as the question of whether, and if so, how and on what grounds, membership of the constitutional court can come to an end.

A. Duration of Appointment Constitutional designers have a range of options as regards determining the term of office of members of the constitutional court. They may decide to appoint judges to the constitutional bench for life, as is perhaps most famously the case in the United States, where Supreme Court judges hold judicial office until their death or voluntary retirement. In the countries under study, only Belgium has chosen to appoint judges to its Cour constitutionnelle for an indeterminate period of time, subject to mandatory retirement at the age of 70.93 Giving constitutional justices life tenure is generally seen as an important guarantee of their independence, by reducing or even eliminating political pressure on the exercise of constitutional jurisdiction. It is further useful in ensuring institutional stability and in building an institutional memory that in turn should result in a consistent and predictable 91 Sentencia 49/2008 of 9 April 2008. See further V Ferreres Comella, ‘The Spanish Constitutional Court: Time for Reforms’ (2008) 3 Journal of Comparative Law 22, 24. 92 See eg N Garoupa, F Gomez-Pomar and V Grembi, ‘Judging under Political Pressure: An Empirical Analysis of Constitutional Review Voting in the Spanish Constitutional Court’ (2013) 29 Journal of Law, Economics, and Organization 513. More generally on the behaviour of judges, see the work of Richard Posner, such as his How Judges Think (Cambridge, MA, Harvard University Press, 2008) and (together with L Epstein and M Landes), The Behaviour of Federal Judges: A Theoretical and Empirical Study of Rational Choice (Cambridge, MA, Harvard University Press, 2013). 93 Special Act on the Constitutional Court, Art 32.

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body of case law. At the same time, however, there are potential downsides associated with judicial terms of office of unlimited duration. The State organs with the power of appointment will be aware that the stakes in filling vacancies are high, and this may serve to polit icise the nomination and election process. In addition, there are risks of over-ageing the court94 and of excessive rigidity in the approach that is taken to determining (novel) constitutional issues, with the upshot that the public perception of the constitutional court may be that it is an institution that is neither representative of nor in tune with today’s society. Alternatively, constitutional designers may choose to appoint judges to the constitutional court for a certain, fixed period of time. This approach is taken by the other European countries studied in this book, although there are variations as regards the precise duration of the judicial term of office. Members of the constitutional courts in Spain, Italy, Poland and France are all appointed for nine years.95 The judges on the Czech Ústavní Soud serve 10-year terms,96 and their brethren in Hungary and Germany sit on the constitutional bench for 12 years.97 An advantage of appointing judges for a fixed period of time is that this approach allows for a regular updating of the court’s membership, which includes the possibility of trying to ensure that current political and societal persuasions are represented on the institution that is expected to act as the ultimate guardian and authoritative interpreter of the national constitution. In view of their functions and responsibilities, the perception of sufficient representation may be more important for constitutional courts than for regular judges, who are normally appointed for life in the different European countries. Nevertheless, fixed-term appointments carry their own risks. In part depending on the brevity of the term of office, judges may only truly hone their skills and become accustomed to and experienced in dealing with the types of cases that can be presented to the constitutional court in the latter part of their term on the bench. Another concern relates to the career prospects of judges after their mandate has come to an end, and whether this has an effect on the behaviour of constitutional justices, consciously or unconsciously, in their final years on the bench. The salience of this issue increases when judges are eligible for reappointment. There are good reasons for not allowing renewable terms of office. In particular, it can be harmful for the (perception of the) judges’ independence – and indirectly damage the authority of the court as a body – since those in charge of the selection and appointment process may seek to use this as a means to put pressure on sitting judges. Relatedly, the latter’s concern about the renewal of their mandate can make them feel constrained in their decision-making or could even induce them to seek to curry 94 See Venice Commission, The Composition of Constitutional Courts (Strasbourg, Council of Europe Publishing, 1997) 19. 95 Spanish constitution, Art 159(3) and Organic Law 2/1979 on the Constitutional Tribunal, Art 16(3); Italian constitution, Art 135(3) – members of the Corte costituzionale were originally appointed for 12 years, but this term was reduced to nine years by Organic Law 2/1967; Polish constitution, Art 194(1) and Constitutional Tribunal Act, Art 5(2); French constitution, Art 56. In France, the provision stipulating fixed-term appointments is only applicable to appointed members: former presidents of the republic are granted membership of the Conseil constitutionnel for life. 96 Czech constitution, Art 84(1). 97 Hungarian Fundamental Law, Art 24(4) and Act CLI of 2011 on the Constitutional Court, Art 6(3); Law on the Bundesverfassungsgericht, Art 4(1). For both constitutional courts, the current 12-year term of office is a result of changes to the relevant legal rules. Members of the Hungarian Alkotmánybíróság used to be appointed to the bench for nine years before the 2011–12 constitutional reforms: Act XXXII of 1989 on the constitutional court, Art 8(3). The judges in the Bundesverfassungsgericht were originally appointed for life, but the rules were changed in 1970 as part of a compromise whereby the term of office was reduced to 12 years, but the constitutional justices in turn obtained the right to write dissenting opinions. See further Kommers and Miller, The Constitutional Jurisprudence of the Federal Republic of Germany (n 6) 22.

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favour with the appointing authorities by furthering their interests in the court’s decisions in an effort to remain on the bench.98 This is harmful for (perceptions of) the independence of constitutional judges, with concomitant risks for the legitimacy and prestige of the court as a whole. These tendencies can worsen if judges are authorised to write dissenting opinions, which enhances their public visibility.99 Those countries that have chosen to give constitutional justices tenure for a specific period of time do not adopt a uniform approach to the question of the renewability of mandates. Germany, France, Italy and Poland explicitly prohibit reappointment, either in their constitution or in the relevant legislation setting out in more detail the role and organisation of their constitutional courts.100 The Czech constitution is silent on the matter, which is interpreted not to preclude the renewal of the mandate of constitutional judges. Indeed, in 2012, three of the 15 members of the Czech Ústavní Soud were in their second term of office (Höllander, Janů and Güttler). The rules governing the Spanish Tribunal Constitucional prevent immediate reappointment:101 judges may only be nominated for a further term after a three-year interval following the expiry of their first term on the bench.102 Finally, the mandate of members of the Hungarian Alkotmánybíróság could originally be renewed once, provided that the judge in question had not yet reached the age of 70.103 This has been changed under the new constitutional framework, which contains an explicit prohibition on reappointing outgoing constitutional justices.104 Scheppele has poignantly illustrated the eagerness of some judges to remain on the constitutional bench with her description of the non-renewal of the mandate of the influential first chief justice of the Hungarian court: Given that a second term was possible, it seemed clear that the justices who had not yet turned seventy expected that they would be reelected to the Court. Sólyom [the first president of the Alkotmánybíróság] took the lead in arguing to the government and Parliament that the justices should be renewed, because otherwise virtually all of the experienced justices would have to step down within a short period, leaving the Court to absolute newcomers. Court staff often winced as Sólyom made an increasing number of pitches to renew the terms of all of the justices whose terms were due to expire. Many felt that Sólyom demeaned the Court by making such openly political pleas to stay in office. . . . When his reelection looked increasingly unlikely, Sólyom argued for an amendment to the Constitutional Court Act that would allow justices to sit for twelve years, without renewal. Neither the outgoing government nor the incoming government ever made a decision on Sólyom’s proposals; they simply failed to act. Without ever having a 98 See also the consolidated summary of the proceedings of the OSCE Human Dimension Seminar on Constitutional Justice, held in Warsaw on 14–16 May 2008, www.osce.org/odihr/33161, 20–21. 99 Constitutional judges in the Czech Republic (Act on the Constitutional Court, § 14), Germany (Law on the Bundesverfassungsgericht, Art 30(2)), Hungary (Act CLI of 2011 on the Constitutional Court, Art 66(2)), Poland (Constitutional Tribunal Act, Art 68(3)) and Spain (Organic Law 2/1979 on the Constitutional Tribunal, Art 90(2)) are permitted to write separate opinions. 100 Law on the Bundesverfassungsgericht, Art 4(2); French constitution, Art 56; Italian constitution, Art 135(3); Polish constitution, Art 194(1). 101 There was one exception to this rule. Since appointments to the Tribunal Constitucional are staggered, four of the original 12 members had their terms truncated and served for only three years. As a result, the prohibition on immediate reappointment did not apply to these four judges. 102 Organic Law 2/1979 on the Constitutional Tribunal, Art 16(4). 103 Act XXXII of 1989 on the constitutional court, Art 8(3). 104 Act CLI of 2011 on the Constitutional Court, Art 6(3). Notwithstanding the expiry of their mandate or having reached the mandatory retirement age, judges will (temporarily) remain on the bench in the event that Parliament fails to appoint a successor in time. In that case, the mandate of the sitting judge is extended until his or her successor is appointed: Act CLI of 2011 on the Constitutional Court, Art 15(3).

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formal vote on this continued tenure because the parliamentary committee that had to nominate him failed to reach a decision, Sólyom had to step down.105

B. Removal from the Bench A final point of discussion related to the constitutional bench concerns security of tenure or, to put it differently, the circumstances in which judges can be removed from office. Clearly, to preserve the independence of individual justices and the court as a whole, a basic principle of immunity from removal should apply, with only limited exceptions. A comparative examination of the European constitutional courts that make up our sample conforms to this perspective.106 First, when constitutional judges are appointed for a given period of time, their term of office will come to a natural end upon the expiry of this period. This scenario is explicitly mentioned in the rules governing the Czech, Hungarian, Italian, Polish and Spanish courts.107 A slight variation involves the situation where there is a mandatory retirement age, which a constitutional judge may attain before her term on the bench would otherwise come to an end. The members of the Hungarian Alkotmánybíróság and the German Bundesverfassungsgericht face such a compulsory retirement age, which is set at 70 and 69 years respectively.108 Second, constitutional justices may themselves decide to conclude their term of office by tendering their resignation, a possibility that is recognised in the Czech Republic,109 France,110 Germany,111 Hungary,112 Italy,113 Poland114 and Spain.115 Third, it is also common for the relevant legal rules to provide that the death or permanent illness or disability of a judge is a ground for terminating her membership of the constitutional court. This is the case in France,116 Germany,117 Hungary,118 Italy,119 Poland120 and Spain.121

105 KL Scheppele, ‘Guardians of the Constitution: Constitutional Court Presidents and the Struggle for the Rule of Law in Post-Soviet Europe’ (2006) 154 University of Pennsylvania Law Review 1757, 1785. 106 The basic rule of irremovability is explicitly laid down in Organic Law 2/1979 on the Constitutional Tribunal, Art 22. 107 Act on the Constitutional Court, § 7(3)(a); Act CLI of 2011 on the Constitutional Court, Art 15(1)(b)); Italian constitution, Art 135(4); Constitutional Tribunal Act, Art 6(6); Organic Law 2/1979 on the Constitutional Tribunal, Art 23(1) respectively. The present Hungarian rules governing the termination of judges’ term of office are largely the same as those in place under the old constitutional framework, when they could be found in Act XXXII of 1989 on the constitutional court, Art 15. 108 Act CLI of 2011 on the Constitutional Court, Art 15(1)(a); Law on the Bundesverfassungsgericht, Art 4. 109 Act on the Constitutional Court, § 7(1). 110 Ordinance no 58-1067 on the Constitutional Council (as amended), s 9. 111 Law on the Bundesverfassungsgericht, Art 12. 112 Act CLI of 2011 on the Constitutional Court, Art 15(2) read together with Art 16(1). 113 See the English pages on the Corte costituzionale’s website under 4.1. 114 Constitutional Tribunal Act, Art 11(1). 115 Organic Law 2/1979 on the Constitutional Tribunal, Art 23(1). 116 Ordinance no 58-1067 on the Constitutional Council (as amended), s 11. 117 Law on the Bundesverfassungsgericht, Art 105(1)(1). 118 Act CLI of 2011 on the Constitutional Court, Art 15(2)(a) and Art 15(2)(e) read together with Art 16(3). 119 Constitutional Law no 1/1948, Art 3; Organic Law no 1/1953, Art 7. 120 Constitutional Tribunal Act, Art 11(1) and (2). 121 Organic Law 2/1979 on the Constitutional Tribunal, Art 23(1).

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Fourth, under certain circumstances, constitutional judges may be dismissed. In the various European countries, forceful retirement from the bench is possible if a judge has failed to behave in accordance with the dignity of her office or has committed a (serious) breach of the duties incumbent on her by virtue of membership of the constitutional court.122 In a number of countries, the scope of ‘misconduct’ is fleshed out in greater detail. Czech, German, Hungarian, Polish and Spanish judges can be dismissed following a conviction for fraud or a criminal offence.123 Carrying on a profession or holding a position which is incompatible with membership of the constitutional court is a ground for discharge in France, Hungary and Spain.124 Somewhat similar is the scenario where a judge no longer meets (some of) the eligibility criteria. In the Czech Republic, France and Hungary, this is recognised as a reason for constitutional judges to be forced to step down.125 Lastly, for Italian and Hungarian justices, failure to perform their duties for a period of respectively six or 12 months leads to the loss of office.126 A further safeguard of a judge’s security of tenure lies in the identity of the body able to decide whether any of the grounds for removal from the bench has arisen. For all the courts studied here, such determinations are made by the constitutional justices themselves.127 While cases of resignation, death or illness are sometimes the preserve of the president of the court,128 the decision as to whether a judge has engaged in serious misconduct is taken by the full court, and often requires approval by a supermajority.129 This is important for the court’s independence: if legislative or executive organs could make such decisions, judges could rightfully be concerned that they may be removed for having delivered unpopular judgments, and this could affect their willingness to give rulings that cater to prevailing political interests. 122 For Belgium, Special Act on the Constitutional Court, Art 49; for the Czech Republic, Act on the Constitutional Court, § 7(3)(d); for France, decree 59-1292 on the Conseil constitutionnel, ss 1, 2, 5 and 7; for Germany, Law on the Bundesverfassungsgericht, Art 105(1)(2); for Hungary, Act CLI of 2011 on the Constitutional Court, Art 15(2)(f) read together with Art 16(4)–(5); for Italy, Constitutional Law no 1/1948, Art 3 read together with Organic Law 1/1953, Art 7; for Poland, Constitutional Tribunal Act, Art 11(1) read together with Art 8; for Spain, Organic Law 2/1979 on the Constitutional Tribunal, Art 23(1). 123 Act on the Constitutional Court, § 7(3)(c); Law on the Bundesverfassungsgericht, Art 105(1)(2); Act CLI of 2011 on the Constitutional Court, Art 16(5)(a); Constitutional Tribunal Act, Art 11(1); Organic Law 2/1979 on the Constitutional Tribunal, Art 23(1) respectively. 124 For France, Ordinance 58-1067 on the Constitutional Council (as amended), s 10; for Hungary, Act CLI of 2011 on the Constitutional Court, Art 15(2)(c) read together with Art 16(2) – but note that the judge concerned is given a 10-day period to eliminate the cause of the conflict of interest, failing which her mandate will be terminated; and for Spain, Organic Law 2/1979 on the Constitutional Tribunal, Art 23(1). 125 Act on the Constitutional Court, § 7(3)(b); Ordinance no 58-1067 on the Constitutional Council (as amended), s 10; Act CLI of 2011 on the Constitutional Court, Art 15(2)(d) respectively. 126 Organic Law 1/1953, Art 8; Act CLI of 2011 on the Constitutional Court, Art 15(2)(f) read together with Art 16(5) respectively. In addition, membership of the Hungarian constitutional court can come to an end when a judge intentionally fails to meet her obligations regarding the making of asset declarations: Act CLI of 2011 on the Constitutional Court, Art 15(2)(f) read together with Art 16(5) respectively. 127 For Belgium, Special Act on the Constitutional Court, Art 49; for the Czech Republic, Act on the Constitutional Court, § 144; for Germany, Law on the Bundesverfassungsgericht, Art 105(2) – the federal president formally takes this decision upon authorisation by the Bundesverfassungsgericht; for France, Ordinance no 58-1067 on the Constitutional Council (as amended), ss 10–11 read together with decree 59-1292 on the Conseil constitutionnel, s 5; for Hungary, Act CLI of 2011 on the Constitutional Court, Art 16(6); for Italy, Constitutional Law no 1/1948, Art 3 read together with Organic Law 1/1953, Art 7; for Poland, Constitutional Tribunal Act, Art 11(1) read together with Art 7; for Spain, Organic Law 2/1979 on the Constitutional Tribunal, Art 23(2). 128 For Hungary, Act CLI of 2011 on the Constitutional Court, Art 16(6); for Poland, Constitutional Tribunal Act, Art 11(2); for Spain, Organic Law 2/1979 on the Constitutional Tribunal, Art 23(2). 129 As regards the Czech constitutional court, nine out of 15 votes in favour are required; the German and Italian courts both decide with a two-thirds majority; and the Spanish Tribunal Constitucional decides with a three-quarters majority (in the event of disability or incompatibility, a simple majority suffices).

FINAL COMPARATIVE REMARKS 223

V. FINAL COMPARATIVE REMARKS AND REFLECTIONS ON THE COURT OF JUSTICE

This chapter has dealt with the composition of constitutional courts, which, in turn, goes towards the legitimacy and independence of these courts. In particular, the procedure for the selection and appointment of constitutional justices can be considered to provide the court with a certain type of ‘input legitimacy’.130 We have seen that the selected European countries all contemplate some form of parliamentary involvement in this process, which contributes to the democratic legitimacy of constitutional courts and the exercise of constitutional jurisdiction. In addition, the qualifications that prospective justices must possess to be eligible for appointment to the constitutional bench – such as the linguistic requirements set out in the Belgian rules governing membership of the Cour constitutionnelle or the presence of persons with a political background on the French Conseil constitutionnel – can similarly be appreciated as important in establishing the court’s authority vis-à-vis its interlocutors. At the same time, the fact that, once appointed, constitutional judges may only be removed from the bench on certain limited grounds and that dismissal decisions are taken by the court itself (and not by the political branches of government) helps to guarantee their independence.131 The table overleaf offers a comparative overview of the various aspects pertaining to the composition of the selected European constitutional courts. We can see that there are some variations among the European countries: there does not appear to be a uniform template or approach when it comes to the institutional design of constitutional courts. This is understandable: for each of the facets that, taken together, determine the composition and appearance of these courts, there are different ways to contribute to the realisation of the basic tenets of judicial legitimacy and judicial independence. The fact that the countries have each made their own selection from the various options on the institutional menu reflects the need to ensure that the design of the constitutional court fits the particular political community and constitutional system within which this institution performs its tasks. At the same time, when we consider selected aspects concerning the composition of these courts, we do observe similarities in approach, for instance as regards the choice of appointment model or the entry requirements for candidates to be appointed to the constitutional court. Having canvassed how the selected European countries have designed their constitutional courts and go about selecting and appointing new justices, the final issue to consider is the composition of the Court of Justice.132 The European Treaties vest the power to nominate and appoint judges to the Court of Justice exclusively in the governments of the Member States, which must take these decisions 130 The term was developed by Fritz Scharpf: see eg his Governing in Europe: Effective and Democratic? (Oxford, Oxford University Press, 1999). 131 Other aspects that are important in ensuring the independence of constitutional courts concern the status of the court and its members; and the availability of sufficient resources (including personnel) to perform the functions entrusted to them. 132 Since the entry into force of the Lisbon Treaty, the EU Courts comprise the Court of Justice, the General Court and specialised courts (Art 19(1) TEU). There is currently one such specialised court, namely the Civil Service Tribunal, which hears disputes between the European institutions and their officials: Council Decision 2004/752/EC, Euratom of 2 November 2004 establishing the European Union Civil Service Tribunal [2004] OJ L333/7.

Houses of Parliament alternate in making nominations, government appoints

12

– 40 years – Half Dutch, half Frenchspeaking judges – Half with legal, half with political background – Must be of both sexes

Life tenure

– Serious misconduct

No. of judges

Eligibility criteria

Length of tenure

Removal from the bench

Belgium

Selection and appointment procedure

– Expiry mandate – Resignation – Serious misconduct – Conviction – Eligibility criteria no longer met

10 years, renewable

– Citizen – Irreproachable character – Eligible for senate elections – Law degree – 10 years’ legal experience

15

President nominates, senate confirms

Czech Republic

– Resignation – Death/illness – Serious misconduct – Incompatibility – Eligibility criteria no longer met

9 years

No eligibility criteria specified

9

Presidents of the republic, of lower House and of upper House of Parliament each appoint 1 /3 of total membership

France

– Resignation – Death/illness – Serious misconduct – Conviction

12 years

– 40 years – Eligible for lower House election – Qualified to be judge – Min. 6 members of fed. supreme courts

16

Lower and upper House of Parliamet each appoint half of court’s membership

Germany

– Expiry mandate – Resignation – Serious misconduct – Conviction – Failure to perform duties – Eligibility criteria no longer met

12 years

– Citizen – 45 years – No criminal record – Law degree – Theoretical lawyers of outstanding knowledge or 20 years’ experience

15

Parliamentary committee nominates, full Parliament appoints

Hungary

– Expiry mandate – Resignation – Death/ illness – Serious misconduct – Failure to perform duties

9 years

– Drawn from ordinary judges/ professors/ lawyers with 20 years’ experience

15

President, parliament in joint session and senior courts each appoint 1/3 of court’s membership

Italy

– Expiry mandate – Resignation – Death/illness – Serious misconduct – Conviction

9 years

– Distinguished by knowledge of the law – Qualified to be a member of the supreme courts

15

Lower House of Parliament nominates and appoints

Poland

– Expiry mandate – Resignation – Death/illness – Serious misconduct – Conviction – Incompatibility

9 years, renewable after 3 year interval

– Citizen – Jurist of recognised standing – 15 years’ experience – Drawn from ordinary judges/ professors/public officials/lawyers

12

Lower and upper House of Parliament each appoint 4 judges government and council for the judiciary each appoint 2 judges

Spain 224 THE CONSTITUTIONAL BENCH

FINAL COMPARATIVE REMARKS 225

‘by common accord’.133 The executive domination of the appointment process has long been a sore point for the European Parliament, which would also like the opportunity to provide some input or scrutinise nominees.134 It accordingly suggested reforming the appointment system to include parliamentary hearings of the candidates, along the lines of the regime in place for the appointment of new European Commissioners.135 The Court of Justice, however, rejected such a change as ‘unacceptable’.136 Against this background, the Discussion Circle established by the Convention on the Future of Europe137 suggested the setting up of a panel to give opinions on the suitability of candidates to act as judge at the Court of Justice, notably as regards their professional qualifications.138 This proposal was taken up by the Member States and, following the entry into force of the Lisbon Treaty, they must now consult an advisory panel that will examine the suitability of persons suggested for the post of judge before the governments can proceed to confirm new members of the Court of Justice.139 The advisory panel consists of seven members chosen from among former members of the Court of Justice and the General Court, members of national supreme courts and lawyers of recognised competence.140 The European Parliament is given the right to nominate one of the panel members.141 The idea is that the panel will safeguard and perhaps even boost the quality of nominated candidates. As such, it is undoubtedly encouraging that the panel’s first activity report shows that it takes its role very seriously.142 However, only time will tell how effective this panel will truly be in practice and whether there will be more reforms to further improve the transparency and objectivity of the procedure for appointing judges to the Court of Justice.143 Art 19(2) TEU; Art 253 TFEU. R Barents, ‘The Court of Justice after the Treaty of Lisbon’ (2010) 47 CML Rev 709, 713. 135 Art 17(7) TEU; Rules of Procedure of the European Parliament, rr 105 and 106. 136 Report of the Court of Justice on certain aspects of the application of the treaty on European Union (Luxembourg, May 1995) at point 17. The reason given for this position was that ‘Prospective candidates would be unable adequately to answer the questions put to them without betraying the discretion incumbent upon persons whose independence must, in the words of the treaties, be beyond doubt and without prejudging positions they might have to adopt with regard to contentious issues which they would have to decide in the exercise of their judicial function’. 137 The Convention on the Future of Europe produced a draft of the failed Treaty establishing a Constitution for Europe, many elements of which have been taken over by the Lisbon Treaty. 138 Final Report of the discussion circle on the Court of Justice, CONV 636/03 (Brussels, 25 March 2003) at point 7. 139 Arts 253 and 255 TFEU. This modified appointment procedure is also applicable to the appointment of new Advocates General and judges of the General Court. The panel’s rules of procedure are set out in Council Decision 2010/124 of 25 February 2010 relating to the operating rules of the panel provided for in Article 255 on the TFEU [2010] OJ L50/18. 140 The first seven members of the panel were appointed by means of Council Decision 2010/125 of 25 February 2010 [2010] OJ L50/20. 141 Art 255 TFEU; Rules of Procedure of the European Parliament, r 107a. 142 Rapport d’activité du comité prévu par l’article 255 du Traité sur le fonctionnement de l’union européenne submitted to the Council of the European Union, 6509/11 (Brussels, 17 February 2011). See also the speech given by one of the members of the first advisory panel, Lord Mance: ‘The Composition of the European Court of Justice’ (London, UK Association for European Law, 19 October 2011). 143 Aside from the obvious point that the panel is not in a position to prevent the appointment of a candidate it considers to be unsuitable, it hears the candidates in private and individual opinions on nominees are treated as confidential. Further, it cannot choose between two or more possible candidates – it is limited to reviewing the merits of the candidate presented to it by the nominating Member State. Barents, ‘The Court of Justice after the Treaty of Lisbon’ (n 134) 713 also correctly points out that the modifications made to the appointment procedure have not addressed the general absence of selection procedures (let alone a uniform procedure or at least procedures based on similar principles) at the national level, although several Member States have begun to set up such procedures in recent years. 133 134

226 THE CONSTITUTIONAL BENCH

In terms of size, the Court of Justice comprises one judge per Member State.144 Following the accession of Croatia on 1 July 2013, this means that the Court has 28 members.145 As such, the Court is considerably larger than the constitutional courts examined in this chapter. Having said that, most cases are decided by Chambers consisting of three or five judges146 – that is, by judicial sections that are actually smaller than the selected constitutional courts.147 This can be explained with reference to the scope of the Court’s jurisdiction: as we saw in chapter three, its tasks are broader than those entrusted to constitutional courts and it is called upon to decide issues with no or only a marginal constitutional dimension. Its wide portfolio of responsibilities has generated a heavy workload and it seems uncontroversial to allow smaller sections of the Court to take care of the bulk of the relatively ‘mundane’ cases. This is all the more so given that the Court of Justice can sit as a Grand Chamber consisting of 15 judges or as a full court.148 The Grand Chamber formation is used to decide particularly important or complex cases or if so requested by a Member State or European institution that is a party to the proceedings. The Court of Justice sits as a full court when the case is considered to be of ‘exceptional importance’ or when this is required under the treaties, for instance when hearing petitions for the dismissal of a member of the Commission or the ombudsman. The European Treaties give quite some flexibility to the governments in choosing candidates eligible for appointment to the Court of Justice. The relevant provisions simply state that judges must be recruited from among persons ‘whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial offices in their respective countries or who are jurisconsults of recognised competence’.149 There is no explicit requirement that judges possess the nationality of the nominating State or, for that matter, of any country that is a member of the European Union. In practice, however, Member States usually propose their own citizens as candidates for the European bench. This benefits the representative character of the Court of Justice: with judges coming from each of the Member States, the Court’s composition can be said to properly reflect the EU’s vertically divided power structure and the important role played by the national level within that structure – and to do so to a greater degree than is the case in those countries within the EU that are federal systems.150 The criteria for selection leave the Member States 144 Art 19(2) TEU. The General Court, which may also have occasion to deliver rulings of constitutional significance, consists of ‘at least’ one judge per Member State. The precise number is to be determined by the Statute of the Court of Justice of the European Union. At the time of writing, this number was fixed at the same as the number of EU Member States, but in early April 2011, the Court of Justice of the European Union proposed to enlarge the General Court by adding a further 12 judges. 145 In addition, the Court of Justice has eight Advocates General: Art 252 TFEU. 146 Statute of the Court of Justice of the European Union, Art 16 first paragraph; Rules of Procedure of the Court of Justice [2012] OJ L265/1, Arts 11 and 28. The use of Chambers was first made possible by the Maastricht Treaty. 147 But note that several constitutional courts can also decide certain types of cases in smaller panels: see nn 35–42. 148 Statute of the Court of Justice of the European Union, Art 16; Rules of Procedure of the Court of Justice [2012] OJ L265/1, Art 27. 149 Art 19(1) TEU and Art 253 TFEU. 150 See also the observations made in the Report of the Court of Justice on certain aspects of the application of the treaty on European Union (Luxembourg, May 1995) at point 16: ‘the presence of members from all the national legal systems on the Court is undoubtedly conducive to harmonious development of Community caselaw, taking into account concepts regarded as fundamental in the various Member States and thus enhancing the acceptability of the solutions arrived at. It may also be considered that the presence of a Judge from each Member State enhances the legitimacy of the Court.’ To be fair, it should be acknowledged that the reason for this ‘federallike’ composition of the Court of Justice probably has less to do with federalist thinking than with the Member States’ (original) conception of this institution as an international court.

FINAL COMPARATIVE REMARKS 227

room for manoeuvre in deciding on their preferred recruitment ground and, as a result, there has been a fair amount of diversity in the Court’s membership. As Dehousse explains: [The Court of Justice] includes a number of former judges and high-ranking public servants, while UK and Irish appointees, in contrast with their colleagues, have often had experience in private practice. Several members have also had a political career prior to their nomination to the Court. . . . The university milieu has always been a favoured recruitment ground. Former university professors have long been the largest group in the [Court], and several of them had only limited judicial experience before their appointment to it.151

The Court’s rather heterogeneous composition thus bears a resemblance to that of many constitutional courts, which also tend to comprise judges having a mix of backgrounds (while noting that some professional groups may in practice be particularly strongly represented on the constitutional bench). There is a noticeable difference between the national and the European level, however, when it comes to judges’ terms of office. Members of the Court of Justice are appointed for six years – that is, for a period of time that amounts to only two-thirds of the average term of office of most constitutional justices (see also the table above).152 It can be said, however, that this fairly short term of office is counterbalanced by the possibility of re-appointment.153 Indeed, over the course of the years, most judges’ tenure in the Court of Justice has (repeatedly) been renewed. This is an option that does not usually exist in the case of national constitutional judges.154 While the Court of Justice emphasised, in its 1995 Report drawn up in preparation for the Intergovernmental Conference that led to the signing of the Amsterdam Treaty, that the current system had so far worked satisfactorily, it hastened to add that it was not opposed to a change to longer, non-renewable terms of office as this would ‘provide an even firmer basis for the independence of its members and strengthen the continuity of its case-law’.155 Several years later, the Discussion Circle established by the Convention on the Future of Europe solicited the views of the Court’s president on this and other aspects concerning the operation and composition of the Court of Justice. He indicated that his preference was for the system to remain unchanged, but that he was agreeable to prolonging judges’ term of office to 12 years and making it non-renewable.156 At present, there are no signs that the length of judges’ terms of office is considered a pressing matter or that there is the necessary impetus or consensus to alter the existing rule of renewable six-year terms. Like constitutional justices at the national level, as a general rule members of the Court of Justice have security of tenure for the duration of their appointment. The rules provide that their term on the bench will come to an end when their term of office expires, upon the death of the judge or because the judge has decided to tender her resignation.157 It is further possible for judges at the Court of Justice to be dismissed when they no longer fulfil R Dehousse, The European Court of Justice: The Politics of Judicial Integration (London, Macmillan, 1998) 8. Art 19(2) TEU. 153 ibid. 154 During the negotiations on what became the Maastricht Treaty, the European Parliament mooted the idea of 12-year non-renewable terms of judges in the Court of Justice. This proposal was however not taken up by the Member States, as explained by Dehousse in The European Court of Justice (n 151) 15. 155 Report of the Court of Justice on certain aspects of the application of the treaty on European Union (Luxembourg, May 1995) at point 17. 156 Final Report of the discussion circle on the Court of Justice, CONV 636/03 (Brussels, 25 March 2003) at point 7. A similar view was espoused by the president of the Court of First Instance (as the General Court was then known) when he appeared before the discussion circle.. 157 Statute of the Court of Justice of the European Union, Art 5. 151 152

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the requisite conditions or meet the obligations arising from their office.158 Decisions to this effect shall be taken unanimously by the other members and Advocates-General159 of the Court.160 To conclude, the composition of the Court of Justice can be considered hybrid in nature when compared to the institutional design of most national constitutional courts. Certain aspects – such as the diversity of its membership or appointments for a certain period of time rather than for life – are reminiscent of the appearance of the constitutional courts that we find in many European countries, whereas other features – notably the almost complete control of Member States over the selection and appointment process – betray the (original) conception of the Court of Justice as an international judicial body.

ibid, Art 6. Alternatively, misbehaving judges can be deprived of their right to a pension or other benefits. The Advocates General assist the Court of Justice by delivering written Opinions in cases prior to the Court making its decisions: Art 252 TFEU; Art 20 of the Statute of the Court of Justice of the European Union. 160 While the judge concerned is for obvious reasons not allowed to participate in the deliberations, she has the right to make representations: Rules of Procedure of the Court of Justice [2012] OJ L265/1, Art 6(1). 158 159

Chapter 5 Identifying the Sources of Standards for Constitutional Review I. INTRODUCTION

When an institution – be it the constitutional court, a special parliamentary committee or the Council of State – is asked to assess the constitutionality of a statute or other legal act, it needs a benchmark to carry out this evaluation. This chapter aims to identify this benchmark, or in other words, to uncover the sources of law from which standards for constitutional review can be derived in the selected 11 Member States and in the European Union.1 One may presume that these comprise first and foremost a country’s fundamental document bearing the title ‘constitution’, provided of course that such a document exists. Yet this does not always or necessarily conclude the matter. If there is a constitution, can this document be used in its entirety to decide on the validity of legal provisions, or are certain parts – for instance the preamble – unavailable as benchmarks? What other norms, if any, are deemed ‘constitutional’ and accepted as grounds for constitutional review? For those countries that have established constitutional courts as the ultimate guardians of their constitution, we will examine what standards of review these courts can rely on when examining legal provisions referred to them for scrutiny (sections II to IX). However, as previous chapters have shown, not all States have chosen to primarily entrust (separate) courts with the task of enforcing the provisions and principles of the constitution against the legislature. Finland and the United Kingdom have carved out an important role for special parliamentary committees in this regard – the Perustuslakivaliokunta and the House of Lords Constitution Committee respectively – and in the Netherlands, the Council of State bears significant responsibility for verifying the compatibility of proposed bills with higher legal norms.2 Accordingly, for these three countries, we will consider which sources of law can be used as benchmarks by the non-judicial actors just mentioned (sections X to XII). These country-based sections are followed by a description of the approach adopted within the European legal system by the Court of Justice (section XIII). The concluding section (XIV) will show the ways in which the legal systems are similar and illustrate variations in relation to the sources that may serve as benchmarks for constitutional review.

1 The selection of the specific grounds of review that are used in a particular case is initially made by the petitioner who is asking for an assessment of the constitutionality of the statute or other legal act, although most constitutional guardians are able to go beyond the grounds mentioned by the petitioner. As far as constitutional courts are concerned, the decision as to which constitutional rules or principles are alleged to have been breached by the legal norm referred for scrutiny may be conditional on the type of procedure that is initiated and the function that the court is asked to perform, in line with what we saw in ch 3. 2 For more detail, see ch 1, section III-B and section II-A respectively.

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For the sake of clarity, it should be emphasised that this chapter limits itself to mapping out the rules and principles that constitutional guardians can rely on when reviewing the validity of legal provisions. It is not a study of the different methods of interpretation that may be used by courts or other institutions in establishing the legal meaning of the benchmarks they rely on as constitutional grounds of review. This is so for several reasons. There already is a growing body of literature that offers valuable insight into the interpretative approaches adopted in different Member States and within the European Union in relation to the pertinent constitutional rules and principles.3 The choice of techniques of constitutional interpretation is furthermore a topic that does not lend itself well to a thorough comparative analysis within the confines of a single chapter. This is because constitutional courts and other institutions do not tend to adopt a single interpretative technique, but rather use an array of methods of constitutional interpretation, and the determination which of these will be used in any particular case typically depends on a variety of factors – including for instance the formulation and degree of specificity of the relevant constitutional provisions. When seeking to condense these complex and multi-faceted issues, brevity is likely to come at the expense of accuracy, with the upshot that such an abridged exploration would lose much if not all of its value.

II. BELGIUM: COUR CONSTITUTIONNELLE

The Belgian Cour constitutionnelle is given jurisdiction to examine the compatibility of statutes with certain specified provisions of the constitution.4 From 2003, these comprise the constitutional provisions governing the division of competences between the federal and federated echelons;5 the provisions setting out fundamental rights and liberties;6 the principle of legality in fiscal matters,7 and the principle of the equal treatment of foreigners.8 The current range of constitutional provisions that may serve as grounds for constitutional review have been the product of an incremental process, instigated in turn by the legislature and the Cour constitutionnelle itself. In addition, we shall see that the latter in its case law has extended its standards for constitutional review beyond the provisions just mentioned. At its inception in 1984, the Belgian constitutional court could only review statutes adopted by the federal, community and regional legislatures for breach of the vertical divi3 See eg F Mélin-Soucramanien (ed), L’interprétation constitutionnelle (Paris, Dalloz, 2005); A Jakab, ‘Judicial Reasoning in Constitutional Courts: A European Perspective’ (2012), http://papers.ssrn.com/sol3/papers. cfm?abstract_id=1956657; F Hourquebie and M-C Ponthoreau (eds), La motivation des décisions des cours sûpremes et cours constitutionnelles (Brussels, Bruylant, 2012); T Groppi and M-C Ponthoreau (eds), The Use of Foreign Precedents by Constitutional Judges (Oxford, Hart Publishing, 2013); and see the large research project headed by András Jakab entitled ‘Comparative Constitutional Reasoning’ at the Max Planck Institute for Comparative Public Law and International Law. Specifically focusing on the Court of Justice, see eg J Bengoetxea, The Legal Reasoning of the European Court of Justice: Towards a European Jurisprudence (Oxford, Clarendon Press, 1993); G Conway, The Limits of Legal Reasoning and the European Court of Justice (Cambridge, Cambridge University Press, 2012); G Beck, The Legal Reasoning of the Court of Justice of the EU (Oxford, Hart Publishing, 2013). 4 Belgian constitution, Art 142; Special Act on the Constitutional Court, Arts 1 and 26(1). 5 Belgian constitution, Art 141. 6 ibid, Arts 8–32. 7 ibid, Arts 170 and 172. 8 ibid, Art 191.

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sion of powers, in keeping with its initially limited function of being an umpire in a recently federalised State.9 Importantly, neither the constitution nor the Special Act on the Constitutional Court specified which provisions were relevant as regards the distribution of competences among the various echelons of government – a situation that persists to this day. The Cour constitutionnelle was therefore largely unencumbered in deciding on the precise ambit of its original standard for assessing the constitutionality of legislation.10 It held that the relevant jurisdictional rules can be found partly in the constitution and in the special Act of 8 August 1980 reforming the institutions; and also in ordinary statutes and even in rules that are not of a legislative character.11 Furthermore, the Cour constitutionnelle found in its 1988 EMU judgment that, following several State reforms, the Belgian polity was based on an economic and monetary union, which circumscribed the exercise of the constitutional competences of the federated levels in the field of taxation, even though the relevant legislation at the time made no explicit mention of the existence of such a union.12 In 1989, the scope of the Cour constitutionnelle’s jurisdiction was broadened as a result of a change in the allocation of competences in the field of education during the context of the third State reform, which strengthened the role of the communities in this area. The regulation of education, in particular the question whether the system of education should be founded on religious instruction, had always been a sensitive issue in Belgium. In 1958, the three main political parties had concluded a grand education accord, the so-called School Pact, which sought to accommodate the differences in opinion. There was a concern that the devolution of competences in the field of education from the central level to the communities could endanger the terms of this School Pact. To prevent this, and ensure that the communities would treat Catholic and state-sponsored schools equally, the relevant principles were enshrined in a constitutional provision pertaining to the freedom of education; and the Cour constitutionnelle was empowered to test legislation for compliance with this new provision and, relatedly, with the principles of equality and non-discrimination that are laid down in general terms in Articles 10 and 11 of the constitution.13 Given the specific rationale justifying this extension of jurisdiction, other fundamental rights protected by the Belgian constitution were not added to the list of available benchmarks that could be used by the Cour constitutionnelle to test the constitutionality of legislation. Yet, in its first decision concerning the constitutional provision that contains the general principle of non-discrimination, the Cour constitutionnelle gave a broad reading to this standard for review: 9 See ch 2, section III-A(i) and D Reynders, Prévention et règlement des conflits: la génèse de la Cour d’arbitrage (Brussels, Dossier du CRISP, 1983); J-P Lagasse and S Moureaux, La Cour d’arbitrage: juridicion constitutionnelle. Commentaire de la loi du 28 juin 1983 (Brussels, Larcier, 1984). 10 But see the Special Act on the Constitutional Court, Art 30bis which identifies some of the legal instruments that may be used by the Cour constitutionnelle in this regard and empowers it to adjudicate disputes related to consultation procedures among the various levels of government (with the exception of cooperation agreements); see also eg judgment no 49/99 of 29 April 1999. 11 Judgment no 92/2003 of 24 June 2003. 12 Judgment no 47/1988 of 25 February 1988, EMU. The concept of an economic and monetary union was later explicitly incorporated in legal texts during the Third State Reform. 13 Parliamentary documents of the Belgian Senate 1988 no 100-3/1. Article 10 lays down the principle of equality in positive terms and has been part of the Belgian constitution from the very start, although it was for many years considered to be relevant primarily as regards the appointment of civil servants. Article 11 contains a prohibition on discrimination, which was inserted into the constitution during the revision of 24 December 1970. The Cour constitutionnelle considers Arts 10 and 11 as two sides of the same coin, particularly since judgment no 37/97 of 8 July 1997.

232 IDENTIFYING SOURCES OF STANDARDS FOR REVIEW

Article [11] of the Constitution states: ‘Enjoyment of the rights and freedoms recognised for Belgians must be provided without discrimination. To this end, laws and federate laws guarantee among others the rights and freedoms of ideological and philosophical minorities.’ The first part of that provision has a general scope and prohibits all discrimination, irrespective of its origin: the constitutional rule of non-discrimination is applicable to all the rights and freedoms granted to the Belgians.14

In doing so, the Cour constitutionnelle ingeniously extended its competence, by holding that an infringement of any of the fundamental rights laid down in the constitution amounted to discrimination in the enjoyment of that particular right and that it could, therefore, scrutinise statutes against all these other fundamental rights, read together with the principles of equal treatment and non-discrimination. In later case law, the Cour constitutionnelle progressively expanded the list of principles and norms the respect for which must be guaranteed without discrimination by the various legislatures and that are, by implication, available as incidental grounds for constitutional review. For instance, general principles of law are included, such as the burden of proof and the rights of defence.15 The Cour constitutionnelle has also applied its creative judicial approach to the constitution’s more institutional provisions, such as those regulating the division of powers between the legislature and the executive. If the former delegates more competences than is constitutionally permissible to the latter, this is considered to give rise to an unjustifiable difference in treatment between two categories of persons that the Cour constitutionnelle can take cognisance of, namely between those persons who enjoy the guarantee that the matter at issue is decided by a democratically elected deliberative assembly and those who are denied this constitutional guarantee.16 Furthermore, in its important Pacificatie ruling, the Cour constitutionnelle held that it can also review the compatibility of statutes adopted by the federal or federated entities with fundamental rights protected by self-executing inter national treaties via the prism of the principles of equality and non-discrimination: The rights and freedoms guaranteed to all Belgians by Article [11] of the Constitution indeed include the rights and freedoms resulting from international treaty provisions that bind Belgium and that are applicable in the domestic legal order as a result of an act of assent. This applies at least as regards the rights and freedoms arising from directly effective provisions.17

These international agreements notably encompass human rights treaties, with the Cour constitutionnelle in practice frequently drawing on the European Convention on Human Rights.18 Similarly, it has accepted that it can use rules of EU law as indirect standards for

Judgment no 23/89 of 13 October 1989, Biorim at B.1.2. (my translation). Judgment no 72/92 of 18 November 1992, B.2.1. See also eg judgment no 32/95 of 4 April 1995 and judgment no 27/97 of 6 May 1997. 16 See eg judgment no 151/2003 of 26 November 2003, B.9.1. Before the Belgian court acquired the competence to use the constitutional provision regarding taxation as a ground of review, it used this line of reasoning to examine the constitutionality of tax legislation: see eg judgment no 64/95 of 13 September 1995, B.12–B.15; judgment no 21/97 of 17 April 1997, B.5.2; judgment no 32/2000 of 21 March 2000, B.7.4–B.7.9; judgment no 117/2002 of 3 July 2002, B.2–B.4; judgment no 53/2003 of 30 April 2003, B.3.1–B.3.5; judgment no 100/2003 of 17 July 2003, B.11.1. (my translation). 17 Judgment no 18/90 of 23 May 1990, Pacificatie at B.11.3. See also judgment no 62/93 of 15 July 1993, B.3.2. 18 For instance, the test applied by the Cour constitutionnelle in determining whether the principles of equality and non-discrimination have been infringed – which are invoked by petitioners and regular courts in about 85% of cases – is identical to the test developed by the European Court of Human Rights in Case relating to certain aspects of the laws on the use of languages in education in Belgium App nos 1474/62, 1677/62, 1691/62, 1769/63, 1994/63, 2126/64 (ECtHR, 23 July 1968). 14 15

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assessing the constitutionality of legislation.19 In some cases, the Cour constitutionnelle has been even more generous and has considered international treaty provisions that are directly effective within the Belgian legal order.20 Taking its cue from this body of constitutional case law, in 2003 the legislature again extended the jurisdiction of the Cour constitutionnelle and granted it the power to verify the compatibility of legislation with the entire Bill of Rights included in the Belgian constitution as well as with some other clauses. The reason for doing so was twofold.21 First, there would no longer be a need for the Cour constitutionnelle and petitioners to resort to ‘unnecessarily complicated reasoning’ and formally invoke the principle of non-discrimination or equality as grounds for the review of legislation that was in actual fact considered to impinge upon one of the other fundamental rights protected by the constitution. By authorising direct control of statutes for conformity with these rights, instead of retaining the technique of indirect control, legal certainty would be better protected and the clarity of the case law would be further enhanced. Second, by allowing the Cour constitutionnelle to enforce all constitutional provisions that contain fundamental rights, the upshot should be a more uniform interpretation of the Belgian Bill of Rights. This is because regular courts are now required to transmit questions concerning alleged violations of any fundamental right by the various legislatures to the Cour constitutionnelle, thereby providing the latter with the opportunity to expound the meaning that should be given to the different fundamental rights and liberties.22 The government had in fact intended to go even further. It had proposed to introduce a new constitutional clause that would incorporate the substantive provisions of the ECHR into the Belgian constitution and allow the Cour constitutionnelle to use this new clause as a standard for assessing the constitutionality of legislation.23 In light of the critical reception of this idea by MPs and the Council of State, however, the proposal was abandoned.24 While the Cour constitutionnelle to this day still lacks the formal power to directly scrutinise national legislation for conformity with international and European rules, it has confirmed and even strengthened its practice of indirectly using these norms as benchmarks for constitutional review. In a case concerning the constitutionality of a provision in a 19 See eg judgment no 13/2000 of 2 February 2000, B.4.2–B.4.3; judgment no 151/2003 of 26 November 2003, B.22.4–B.22.7. 20 See eg judgment no 41/2002 of 20 February 2002, B.5–B.8; judgment no 75/2003 of 28 May 2003, B.5–B.13; judgment no 106/2003 of 22 July 2003, B.4.1–B.4.2; judgment no 189/2004 of 24 November 2004, B.3. 21 Memorie van Toelichting, parliamentary documents of the Belgian Senate 2000–01, no 2-897/1 2. 22 The Belgian preliminary reference procedure is explained in more detail in ch 3, section III-A(ii). 23 Proposed Art 32bis. Comparable proposals to add EU legal norms to the grounds of review that may be used by the Cour constitutionnelle when examining the validity of legislation were discussed and rejected in 1983 and 1989: parliamentary documents of the House of Representatives 1982–83 647, no 6; parliamentary documents of the Belgian Senate 1988–89, no 483-2, 44; parliamentary documents of the House of Representatives 1988–89, no 633-4. 24 See in particular parliamentary documents of the Belgian Senate 2002–03, no 2-897/6, 212. The main objections were twofold. First, the ECHR would be privileged over other international treaties, including those that also guarantee (specific) fundamental rights. Second, and more fundamentally, in Franco Suisse Le Ski (Cass 27 May 1971) the Belgian Cour de cassation had ruled that all regular judges were competent to review the compatibility of domestic legislation with international treaties and, in the event of a conflict, grant priority to the latter. For many years, Belgium thus had a system of decentralised review of statutes in the light of international law combined with a system of centralised control of the constitutionality of legislation. Giving the Cour constitutionnelle the power to verify whether laws comport with the ECHR would drastically change the division of labour between itself and the regular courts, as the latter would no longer be able to decide for themselves on the conformity of laws with the ECHR, but would be obliged to refer such issues to the Cour constitutionnelle through the prelimin ary reference procedure.

234 IDENTIFYING SOURCES OF STANDARDS FOR REVIEW

decree of the Flemish government regulating the enforcement of violations of the planning and building regulations, the Cour constitutionnelle reasoned as follows: The Flemish Government also submits that the Court has no jurisdiction to rule on the direct violation of Article 7 of the European Convention on Human Rights and Article 15 of the International Covenant on Civil and Political Rights. Under Article 26, § 1, 3 of the special law of 6 January 1989 on the Constitutional Court, as amended by the special Act of 9 March 2003, the Court has jurisdiction to examine legislative norms against the articles of title II ‘The Belgians and their rights’ and Articles 170, 172 and 181 of the Constitution. However, when the scope of a treaty provision that binds Belgium is analogous to that of one or more of the aforementioned constitutional provisions, the guarantees contained in that treaty provision form an inseparable whole with the guarantees laid down in the relevant constitutional provision. The violation of a fundamental right also ipso facto entails a violation of the principles of equality and non-discrimination. It follows that, if a violation is alleged of any provision of title II or of Articles 170, 172 or 191 of the Constitution, the Court in its investigation will take into account international provisions that guarantee analogous rights or freedoms.25

The doctrine of analogous interpretation and the ‘inseparable whole’ has become established case law and is applied quite rigorously by the Cour constitutionnelle, notably as far as the ECHR and relevant decisions of the Strasbourg Court are concerned.26 Thus, to summarise, the Belgian Cour constitutionnelle is authorised to directly review the compatibility of legislation adopted by any of the echelons of government, with the rules giving expression to the vertical balance of powers and other specifically enumerated constitutional provisions, which mainly deal with fundamental rights. Further, through its case law, the Cour constitutionnelle has developed two modalities of indirect control of statutes, using additional grounds for review. First, using the constitutional provisions protecting the general rights to equality and non-discrimination as a prism, it can assess whether statutes comport with all other clauses of the Belgian constitution, directly effective international agreements and general principles of law. Second, when using the fundamental rights as the direct ground to test the validity of national legislation, the Cour constitutionnelle also verifies whether the pertinent legislative provisions respect analogous rights and freedoms protected by human rights treaties. The technique of indirect control – particularly to ensure respect for the ECHR and EU law – seems to have been inspired by the wish of the Cour constitutionnelle to be able to cite relevant decisions delivered by the European Courts with a view to ensuring that the level of protection offered under the Belgian constitution is at least equivalent to that offered at the European level, while not appearing to arrogate to itself new competences that it has not been explicitly granted by 25 Judgment no 136/2004 of 22 July 2004, B.5.1–B.5.4. It will also take account of the case law of the judicial bodies ultimately responsible for interpreting the relevant international agreements and rules of EU law, in particular the European Court of Human Rights and the Court of Justice of the European Union. The Cour constitutionnelle confirmed in later case law that it can only indirectly review laws against international treaties and that a link with a national constitutional provision thus remains necessary: see judgment no 189/2005 of 14 December 2005, B.3.5; judgment no 195/2009 of 3 December 2009, Partijfinanciering at B.6. 26 For instance, the Cour constitutionnelle has been willing to adjust the scope of the fundamental rights laid down in the Belgian constitution to make it comport with the scope of analogous rights protected under the ECHR, which may involve broadening the ambit of a particular right or even reading in limitations not expressly mentioned in the relevant constitutional clause: see eg judgment no 202/2004 of 21 December 2004, B.5.3–B.5.10 and B.12.2–B.12.5; judgment no 131/2005 of 19 July 2005, B.2.1–B.6.

CZECH REPUBLIC: ÚSTAVNÍ SOUD 235

either the constitution or other legal instruments.27 This, in turn, should reduce the likelihood of Belgium being found in breach of its obligations under European law in relation to national rules that have received constitutional clearance from the Cour constitutionnelle.

III. CZECH REPUBLIC: ÚSTAVNÍ SOUD

In the Czech Republic, the Ústavní Soud is directed to use ‘the constitutional order’ as the standard for assessing the constitutionality of parliamentary enactments and sub-statutory legal provisions.28 Article 112(1) of the constitution explains that this benchmark for review is made up of three components. This includes, first and foremost, the entire text of the constitution enacted on 16 December 1992 as amended. The second component is the domestic Bill of Rights, which has not been incorporated in the constitution, but can be found in a separate document, aptly entitled ‘Charter of Fundamental Rights and Basic Freedoms’.29 The ‘constitutional order’ lastly comprises constitutional acts that supplement or amend the constitution, on the condition that they have been enacted in accordance with the constitutionally prescribed procedure.30 Several such acts have indeed been passed, addressing the dissolution of the Czechoslovak federation and the establishment of the Czech Republic as a successor state;31 defining the borders between the Czech Republic and its neighbours; dealing with the security of the state in the event of an emergency, threat or war;32 creating a regional layer of government;33 and governing the referendum on accession to the EU.34 In addition, on two occasions, Parliament has made use of the instrument of the constitutional act to resolve a government crisis (see also below).35 Besides these three sources of constitutional reference standards, the Ústavní Soud has judicially enlarged the notion of the ‘constitutional order’ and added international human rights treaties as a fourth ground on which to test the legality of Czech laws and other rules. Before 2001, the Czech constitution adopted a dualist approach to the relationship between international agreements and national law, but made an exception for human rights treaties, in relation to which the monist approach was followed. Such treaties were awarded priority over statutes and were listed as one of the grounds of review that could be used by the Ústavní Soud.36 Following a constitutional revision, the Czech Republic today embraces 27 See M Bossuyt and W Verrijdt, ‘The Full Effect of EU Law and of Constitutional Review in Belgium and France after the Melki Judgment’ (2011) 7 European Constitutional Law Review 355, 358 and 363, who speak of ‘the principle of widest protection’. 28 Czech constitution, Art 87. 29 ibid, Art 3. The Charter of Fundamental Rights and Basic Freedoms was adopted as Constitutional Act no 2/1993. 30 Czech constitution, Art 9(1) contains the general rule. In addition, several other constitutional provisions contemplate the adoption of constitutional acts in relation to specific subject matters, namely Arts 2(2), 10a(2), 11 and 100(3). The procedure for the adoption of Constitutional acts is set out in Art 39(4). 31 Constitutional Act no 4/1993 Sb on measures connected with the dissolution of the Czech and Slovak Federal Republic; Constitutional Act no 29/1993 on certain additional measures connected with the dissolution of the Czech and Slovak Federal Republic. 32 Constitutional Act no 110/1998 on the security of the Czech Republic. 33 Constitutional Act no 347/1997 Sb on the creation of higher territorial self-governing units. 34 Constitutional Act no 515/2002 Sb on the referendum on the Czech Republic’s accession to the European Union. 35 Constitutional Act no 69/1998 Sb on the shortening of the electoral term of the assembly of deputies; Constitutional Act 195/2009 Sb on shortening the fifth term of office of the Chamber of Deputies. 36 Czech constitution, ex Art 87(1)(a).

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monism in relation to all international treaties that have been duly ratified by Parliament and published in the collection of laws and treaties.37 That same amendment envisaged that the Ústavní Soud would lose the competence to review Czech legal norms in the light of human rights treaties. In the Bankruptcy Trustee case,38 the Ústavní Soud however refused to accept that its jurisdiction had been circumscribed: The constitutional maxim in Art. 9 para. 2 of the Constitution has consequences not only for the framers of the constitution, but also for the Constitutional Court. The inadmissibility of changing the substantive requirements of a democratic state based on the rule of law also contains an instruction to the Constitutional Court, that no amendment to the Constitution can be interpreted in such a way that it would result in limiting an already achieved procedural level of protection for fundamental rights and freedoms. This must be the basis for evaluating the changes brought by the amendment to the Constitution. The enshrining in the Constitution of a general incorporative norm, and the overcoming thereby of a dualistic concept of the relationship between international and domestic law, cannot be interpreted to mean that ratified and promulgated international agreements on human rights and fundamental freedoms are removed as a reference point for purposes of the evaluation of domestic law by the Constitutional Court with derogative results. Therefore, the scope of the concept of constitutional order cannot be interpreted only with regard to § 112 para. 1 of the Constitution, but also in view of Art. 1 para. 2 of the Constitution [stating that the Czech Republic shall observe its international obligations], and ratified and promulgated international agreements on human rights and fundamental freedoms must be included within it.39

The Ústavní Soud thus continues to use human rights treaties, notably the European Convention on Human Rights, as a standard for assessing whether the ‘constitutional order’ has been breached. It has adopted a different approach in relation to EU law and holds that it cannot use provisions of Union law as separate reference standards when deciding on the constitutionality of Czech statutes and other legal acts.40 In its Squeeze-out decision, the Ústavní Soud explained that it is for the regular courts to enforce EU law against conflicting legislation: The reference point for review of the constitutionality of statutes . . . is the constitutional order. The Constitutional Court does not have jurisdiction, in such proceedings, to review whether domestic law is consistent with [EU] law. The application of [EU] law as directly applicable law is in the jurisdiction of the ordinary courts, which, in cases of doubt about the application of the law, have the opportunity, or obligation, to turn to the European Court of Justice with a prelim inary issue under Art. [267] of the [TFEU]. From the point of view of the reference criteria for 37 The amendment was contained in Constitutional Act no 395/2001 and the Czech constitution, Art 10 now provides for the monist approach to international treaties. There is an ongoing debate regarding the domestic status of other obligations deriving from international law, in view of Art 1(2) of the Czech constitution, which states that ‘The Czech Republic shall observe its obligations resulting from international law’. 38 Judgment Pl ÚS 36/01 of 25 June 2002, Bankruptcy Trustee. 39 ibid, under VII. Although this judgment was severely criticised just after it was issued, the Czech constitutional court has persevered and reiterated its position in other cases as well. On the application of the ECHR and EU law in the Czech legal order, see generally M Bobek and D Kosarˇ , ‘Report on the Czech Republic and Slovakia’ in G Martinico and O Pollicino (eds), The National Judicial Treatment of the ECHR and EU Laws: A Comparative Constitutional Perspective (Groningen, Europa, 2010). 40 Judgment Pl ÚS 50/04 of 8 March 2006, Sugar Quotas III under VI; Judgment Pl ÚS 36/05 of 16 January 2007, Reimbursement of Medications at para 35; Judgment Pl ÚS 56/05 of 27 March 2008, Squeeze-Out at para 48. The Ústavní Soud’s stance seems to have been inspired by the fact that there were (at the time) few fundamental rights guaranteed by the European Treaties. In the wake of the Charter of Fundamental Rights of the EU having acquired binding force, there is a debate on whether the Czech constitutional court ought to adjust its position.

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decision-making by the Constitutional Court this changes nothing. An obligation arises from Art. 1 para. 2 of the Constitution of the Czech Republic [stating that the Czech republic shall observe its international obligations] for the Constitutional Court, as a state body, of the Czech Republic, to make an interpretation of the constitutional order consistent with European law in those areas where [EU] law and the legal order of the Czech Republic meet (the undertaking of loyalty under Art. [4(3)] of the [TEU].41

However, the Ústavní Soud recognises that it can usefully rely on EU law and the decisions delivered by the Court of Justice as a source of inspiration in establishing the meaning of the norms that make up the Czech constitutional order (ie, its grounds for review).42 This choice is motivated, amongst other things, by the fact that the Czech and the European legal order share common values and principles: One of the sources of primary [EU] law is the general legal principles which the European Court of Justice excerpts from the constitutional traditions of European Union member states. They contain fundamental values which are common to all its members. . . . The Constitutional Court has thus subscribed to European legal culture and its constitutional traditions. It also interprets constitutional regulations, primarily the Charter of Fundamental Rights and Freedoms in light of general legal principles. Thus, primary [EU] law is not foreign to the Constitutional Court, but to a wide degree permeates – particularly in the form of general legal principles of European law – its own decision-making. To that extent it is also relevant to the Constitutional Court’s decision-making.43

Among the various rules and principles that together make up the Czech constitutional order, the Ústavní Soud attributes special importance to Article 9(2) of the constitution, which is considered to contain certain intangible fundamental principles that form the essential core of the constitution; and it privileges this clause over the other constitutional reference standards. This became clear following a 2009 decision delivered in the wake of turmoil faced by the Czech government. In the spring of that year, the government was ousted following a vote of no confidence, midway through the country’s presidency of the EU. As there were no viable alternative coalition possibilities and with elections still a full year away, there was support across the political spectrum to pass a constitutional act shortening the electoral mandate of sitting MPs, which would allow the president to call early elections.44 This option was preferred over the use of the normal procedure for dissolving Parliament laid down in Article 35 of the constitution, which is more cumbersome and would take longer to complete.45 After being adopted with huge supermajorities in both Houses of Parliament,46 the validity of the resultant constitutional act was challenged

Judgment Pl ÚS 56/05 of 27 March 2008, Squeeze-Out at para 48. ibid. 43 Judgment Pl ÚS 5/01 of 16 October 2001, Milk Quota Regulation. Interestingly, this decision was delivered before the Czech Republic joined the EU. In fact, the Czech constitutional court had already referred to Union law and judgments of the Court of Justice of the European Union on several occasions before accession took place: P Molek, ‘The Czech Constitutional Court and the Court of Justice: Between Fascination and Securing Autonomy’ in M Claes, M de Visser, P Popelier and C van de Heyning (eds), Constitutional Conversations in Europe: Actors, Topics and Procedures (Antwerp, Intersentia, 2012). 44 Decision of the president of the republic no 207/2009 Coll, on calling elections to the Chamber of Deputies of the Parliament of the Czech Republic. 45 Parliament also relied on the fact that this solution had been used once before. 46 These majorities were ‘constitutional’, ie those required for an amendment of the Czech constitution. The Chamber of Deputies approved the act with 172 votes in favour and nine against (with 189 deputies present for the vote) and in the Senate, 56 senators were in favour, eight voted against and seven senators abstained (out of 71 senators present). 41 42

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by a single deputy. The Ústavní Soud upheld his claim.47 By entertaining this challenge on its merits, the Ústavní Soud assumed the competence to review new constitutional acts notwithstanding the absence of an explicit authorisation to do so. By the same token, it asserted that it has the authority to decide whether the prescribed standard for constitutional review, namely ‘the constitutional order’, has been properly broadened, given that constitutional acts may serve as a ground on which the legality of Czech laws and other instruments is tested. In order to determine whether there has been a violation of the constitutional order, the Ústavní Soud has declared that it will verify the compatibility of the pertinent con stitutional act with Article 9(2) of the constitution, which proscribes ‘any changes in the essential requirements for a democratic state governed by the rule of law’. This constitutional clause is accordingly cast as the ultimate benchmark – a hierarchically superior or supra-constitutional rule that must be respected by ordinary legislation, sub-statutory acts and constitutional amendments: Protection of the material core of the Constitution, i.e. the imperative that the essential requirements for a democratic state governed by the rule of law, under Art. 9 par. 2 of the Constitution are non-changeable, is not a mere slogan or proclamation, but a constitutional provision with normative consequences. . . . Without the protection of Art. 9 par. 2 of the Constitution into the interpretation of Art. 87 par. 1 let. a) of the Constitution [stating that the Ústavní Soud has the power to enforce the constitutional order against Parliament], the non-changeability of the essential requirements for a democratic state governed by the rule of law would lose its normative nature and remain merely a political, or moral challenge.48

The Ústavní Soud favours a substantive, as opposed to a merely formal, reading of this fundamental constitutional clause, which it has interpreted as encompassing protection of the sovereignty of the people, the fundamental principles of the electoral system and the natural law provisions found in the Charter of Fundamental Rights and Freedoms.49 The Ústavní Soud further clarified that ad hoc constitutional acts like the one referred for scrutiny cannot as a general rule be said to supplement or amend the constitution and hence fall foul of the constitutional definition of these instruments: Under Art. 9 par. 1, the Constitution can be supplemented or amended only by constitutional acts. . . . An ad hoc constitutional act (for an individual instance) is not a supplement or amendment to the Constitution. In content, a constitutional act for an individual instance can take two forms – either it involves time-limited suspension of the Constitution, or a substantive, or personal, exception from the general validity of the constitutional framework. . . . Constitutional Act no. 195/2009 Coll. is a constitutional act only in form, but not in substance. In substance it is an individual legal act affecting not a generally defined circle of addressees and situations, but a specifically designated subject (the Chamber of Deputies of the Parliament of the Czech Republic elected in 2006) and a specific situation (ending its term of office on the day of elections, which are to be held by 15 October 2009, and shortening deadlines under the Act on Elections to the Parliament of the Czech Republic and under the Administrative Procedure Code, only for this instance. . . .

47 Judgment Pl ÚS 27/09 of 10 September 2009, Constitutional Act on Shortening the Term of Office of the Chamber of Deputies. 48 See also Judgment Pl ÚS 19/93 of 21 December 1993, Lawlessness; Judgment Pl ÚS 36/01 of 25 June 2002, Bankruptcy Trustee; Judgment Pl ÚS 11/02 of 11 June 2003, Judges’ Salaries. 49 See in particular Judgments Pl ÚS 31/97 and Pl ÚS 42/2000.

GERMANY: BUNDESVERFASSUNGSGERICHT 239

If the Constitutional Court is forced to answer the question of whether Art. 9 par. 1 of the Constitution also authorizes Parliament to issue individual legal acts in the form of constitutional acts (e.g. to issue criminal verdicts against specific persons for specific actions, to issue administrative decisions on expropriation, to shorten the term of office of a particular official of a state body etc.), the answer is – no!

Rather than being building blocks of the Czech constitutional order, ad hoc constitutional acts may undermine this order, notably by breaching the principle of the generality of law that is considered to be one of the characteristics of a law-based State. The Ústavní Soud accordingly struck down the act at issue on the grounds that it violated the material core of the Czech constitution.

IV. GERMANY: BUNDESVERFASSUNGSGERICHT

The German Basic Law (Grundgesetz)50 prescribes that the Bundesverfassungsgericht should use this fundamental document as the benchmark when performing the tasks assigned to it.51 All clauses of the Basic Law are judicially enforceable and the Bundesverfassungsgericht has also recognised the binding nature of the preamble, which it occasionally takes into account when reviewing the constitutionality of acts of parliament.52 We have just seen how the Czech Ústavní Soud held that the Czech constitution contains a guarantee of inviolable fundamental principles and that it conceives of itself as the guardian of this material core of the constitution. In deciding to interpret the pertinent constitutional clause in this way, the Ústavní Soud was inspired by the approach adopted in other European countries to protect the constitutive principles of a democratic society, pointing in particular to Germany and Article 79(3) of the German Basic Law.53 This provision is commonly referred to as the eternity clause (Ewigkeitsklausel or Ewigkeitsgarantie) and reads as follows: Amendments to this Basic Law affecting the division of the Federation into Länder, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible.

Article 1 proclaims that human dignity is inviolable; Article 20 contains the principle of democracy, the republican and federal character of the State, the principle of a Sozialstaat (social welfare state) and the Rechtstaat principle.54 The intangible principles referred to in 50 Germany’s fundamental law is called ‘Basic Law’ (Grundgesetz) rather than ‘constitution’ (Verfassung), as the framers initially expected that this Basic Law would be superseded by a new constitution following reunification (see also German Basic Law, Art 146). However, ‘Since the Basic Law had proved to be a well functioning constitution the political decision-makers refrained from taking the risk of enacting a less suitable constitution’: W Heun, The Constitution of Germany: A Contextual Analysis, Constitutional Systems of the World (Oxford, Hart Publishing, 2011) 12. 51 German Basic Law, Arts 93(1) and 100(1). When deciding abstract constitutionality challenges brought against legislation adopted by a Land under Art 93(1)(2), the Bundesverfassungsgericht can also use ordinary federal laws as reference standards. 52 BVerfG 36, 1 (1973) East-West Basic Treaty; more recently, BVerfG, 2 BvE 2/08 (2009) Lisbon Urteil 222 ff. 53 Judgment Pl ÚS 27/09 (n 47) under IV. 54 See also German Basic Law, Art 28(1). A general discussion of the principles enshrined in Art 20 is offered by H Dreier, ‘Grundlagen und Grundzüge staatlichen Verfassungsrechts: Deutschland’ in A Von Bogdandy, P Cruz Villalón and P Huber (eds), Handbuch Ius Publicum Europaeum – Band I: Grundlagen und Grundzüge staatlichen Verfassungsrechts (Heidelberg, CF Müller, 2007) 56 ff.

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Article 79(3) form the essential core of the German Basic Law and enjoy a hierarchically superior position vis-à-vis its other clauses. Indeed, in its very first decision, the Bundesverfassungsgericht recognised these principles as ‘supra-constitutional’ and as ultimate constitutional benchmarks; and accepted that it can review the admissibility of amendments of the Basic Law in light of the eternity clause: [An individual constitutional provision] is connected with the other provisions of the constitution, which has an inner unity. Taken as a unit, a constitution reflects certain overarching principles and fundamental decisions to which individual provisions are subordinate. Art. 79, par. 3, makes it clear that the Basic Law proceeds in this fashion. Thus this Court agrees with the statement of the Bavarian Constitutional Court: That a constitutional provision itself may be null and void, is not conceptually impossible just because it is a part of the constitution. There are constitutional principles that are so fundamental and to such an extent an expression of a law that precedes even the constitution that they also bind the framer of the constitution, and other constitutional provisions that do not rank so high may be null and void because they contravene these principles.55 From this rule of interpretation, it follows that any constitutional provision must be interpreted in such a way that it is compatible with those elementary principles and with the basic decisions of the framer of the constitution.56

The core principles listed in Article 79(3) of the Basic Law can be modified or abrogated only through the adoption of a completely new constitution. This means, essentially, that the Bundesverfassungsgericht has the final say on the meaning and scope of this most fundamental component of its constitutional reference standard, without the constitutional legislature being able to overrule or correct the judicial reading of the principles guaranteed by the eternity clause through a simple constitutional revision. Generally speaking, the Bundesverfassungsgericht has read the Basic Law broadly, in particular the intangible core principles guaranteed by Article 79(3) and the clauses that contain fundamental rights and freedoms. Thus, in its seminal Elfes judgment, the Bundesverfass ungsgericht was asked to establish the meaning of Article 2(1), which protects the right to the free development of one’s personality.57 It ruled that this provision was ‘to be broadly construed’ and concluded that ‘it represents a separate, individual basic right that guarantees a person’s general right to freedom of action’, referring to the language of the original proposal for this constitutional clause, according to which ‘every person is free to do or not to do what he wishes’.58 This general right to freedom of action (allgemeine Handlungsfreiheit) plays two important roles. First, it has the status of a subsidiary fundamental right and may accordingly serve as a ground for the review of State acts if none of the rights expressly laid down in

55 This statement was made by the Bayern constitutional court in its Decision of 10 June 1949, Vf 52-VII-47 and repeated in its judgment of 24 April 1950, Vf 42, 54, 80, 88-VII-48. 56 BVerfG 1, 14 (1951) Southwest State at D2. This constitutional core is also considered to reflect Germany’s constitutional identity and as such is seen to pose a constitutional limit to the European integration process; the Bundesverfassungsgericht considers itself competent to assess whether acts adopted by the Union institutions encroach upon this essential core: see BVerfG, 2 BvE 2/08 (n 52). On this judgment, see ch 7, section V-B and eg D Thym, ‘In the Name of Sovereign Statehood: A Critical Introduction to the Lisbon Judgment of the German Constitutional Court’ (2009) 46 CML Rev 1795. 57 BVerfG 6, 32 (1957). 58 These translations are taken from D Kommers and R Miller, The Constitutional Jurisprudence of the Federal Republic of Germany, 3rd rev edn (Durham, NC, Duke University Press, 2012) 402.

GERMANY: BUNDESVERFASSUNGSGERICHT 241

the Basic Law is applicable.59 Second, the Bundesverfassungsgericht used the allgemeine Handlungsfreiheit as a textual hook for the identification of new fundamental rights, the socalled unnamed liberties (unbenannte Freiheitsrechte) that thereupon become additional standards for assessing the constitutionality of acts adopted by the other State organs.60 In particular, the Bundesverfassungsgericht has extracted a general right of personality from the right to freedom of action and the dignity clause of the Basic Law,61 and it has derived a right to informational self-determination from Article 2(1).62 A second landmark ruling that must be mentioned here is Lüth, where the Bundesverfassungsgericht took a broad view of the role of fundamental rights in the German constitutional order.63 Such rights are not only intended to protect individuals from the unlawful or abusive exercise of State power, but also give expression to an objective order of values: The primary purpose of the basic rights is to safeguard the liberties of the individual against interference by public authority. They are defensive rights of the individual against the state. . . . It is equally true, however, that the Basic Law is not a value-neutral document. Its section on basic rights establishes an objective order of values, and this order strongly reinforces the effective power of basic rights. This value system, which centres upon dignity of the human personality developing freely within the social community, must be looked upon as a fundamental constitutional decision affecting all spheres of law (public and private). It serves as a yardstick for measuring and assessing all actions in the areas of legislation, public administration, and adjudication. Thus it is clear that basic rights also influence private law. Every provision of private law must be compatible with this system of values, and every such provision must be interpreted in its spirit.64

Following Lüth, fundamental rights are seen as permeating the entire German legal order.65 The corollary of this ruling is that the application and interpretation of legislation by the regular courts, including in disputes involving two private parties, is ‘brought under the influence of constitutional law’.66 This, in turn, means that the Bundesverfassungsgericht 59 For instance, this right was used by the Bundesverfassungsgericht to declare unconstitutional a rule that required persons who wanted to hunt with falcons to demonstrate their ability to wield firearms: BVerfG 55, 159 (1980) Falconry. 60 On these unnamed liberties (unbenannte Freiheitsrechte) see eg D Lorenz, ‘Allgemeine Handlungsfreiheit und unbennante Freiheitsrechte’ in M-E Geis and D Lorenz (eds), Festschrift für Hartmut Maurer (Munich, CH Beck, 2001). 61 eg BVerfG 99, 185 (1998) and BVerfG 114, 339 (2005), where the Bundesverfassungsgericht stated that ‘The general right of personality guarantees elements of the personality which are not the subject-matter of the special guarantees of freedom contained in the Basic Law, but which are not inferior to these in their constituting signific ance for the personality’. The German court has also explained that it will adopt a flexible approach to the right to human dignity: ‘any decision defining human dignity in concrete terms must be based on our present understanding of it, and not on any claim to a conception of timeless validity’: BVerfG 45, 187 (1977) Life Imprisonment. 62 BVerfG 27, 1 (1969) Microcensus at 30 ff. The right to informational self-determination was further elabor ated as encompassing a right to the guarantee of the confidentiality and integrity of information technology systems in BVerfG 120, 274 (2008) Data Collection and Online Searches B1. 63 BVerfG 7, 198 (1958) Lüth. This decision was also important in setting out guiding principles for the application of freedom of expression. For a comprehensive yet very readable overview of the facts and wider context of this decision, see U Wesel, Die Gang nach Karlsruhe: Das Bundesverfassungsgericht in der Geschichte der Bundesrepublik (Munich, Karl Blessing, 2004) 131 ff. 64 Translation taken from Kommers and Miller, The Constitutional Jurisprudence of the Federal Republic of Germany (n 58) 443–44. 65 The so-called ‘radiation effect’ of fundamental rights (Ausstrahlungswirkung). 66 D Grimm, ‘Constitutional Issues in Substantive Law: Limits of Constitutional Jurisdiction’ in I Pernice, J Kokott and C Saunders (eds), The Future of the European Judicial System in a Comparative Perspective (BadenBaden, Nomos, 2006) 279 referring to G Schuppert and C Bumke, Die Konstitutionalisierung der Rechtsordnung (Baden-Baden, Nomos, 2000).

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can be asked, notably through the initiation of the constitutional complaint procedure, to review whether these courts (or any other public authority) have acted in accordance with the objective order of values. A third case that merits attention is Abortion I, where the Bundesverfassungsgericht recognised, building on its decision in Lüth, that fundamental rights can also give rise to affirmative duties (Schutzpflichten) for the legislature. There may accordingly be a need for the legislature to enact new rules or amend existing provisions in order to protect fundamental rights from possible encroachments stemming from private action or social forces.67 By interpreting fundamental rights as comprising duties to protect, the Bundesverfassungsgericht is able to use these grounds of review not only to assess whether statutes negatively affect fundamental rights and freedoms, but also to arrive at the conclusion that the legislature has breached the Basic Law by failing to take (sufficient) action to comply with a positive duty. In addition to constitutionalising new fundamental rights that are not explicitly guaranteed by the Basic Law, the Bundesverfassungsgericht has also recognised constitutional principles pertaining to Germany’s institutional arrangements that similarly do not have a clear basis in the text of the Basic Law yet can be used as grounds for constitutional review. For instance, it has added the unwritten principles of federal equality68 and federal loyalty (Bundestreue) to the written rules regulating the vertical division of powers between the federation and the Länder.69 Drawing all of this together, it can be said that the standard for constitutional review in Germany is in effect made up of three components: The first is the unamendable constitution established in perpetuity by the eternity clause of Article 79 (3). . . . The second is the amendable constitution, namely, those parts of the written text that can be altered without affecting the Basic Law’s core values. Finally, there are the unwritten or supra-positive principles implicit in such terms as justice, dignity, and the moral law, terms into which the Court has imported significant meaning. These governing principles, like the hierarchical value order the Constitutional Court has inferred from the text of the Basic Law, are an important part of Germany’s constitutional order.70

Finally, we should inquire into the approach taken by the Bundesverfassungsgericht to the enforcement of international and European law while performing the tasks assigned to it. The Bundesverfassungsgericht declines jurisdiction to review the compatibility of national legislation and other acts adopted by organs of the German State with the rights guaran-

67 BVerfG 39, 1 (1975) Abortion I. The German abortion saga is discussed in more detail in ch 7, section II-A(i). On the notion of affirmative duties, see eg J Dietlein, Die Lehre von den grundrechtlichen Schutzpflichten, 2nd edn (Berlin, Duncker & Humblot, 2005); P Unruh, Zur Dogmatik der grundrechtlichen Schutzpflichten (Berlin, Duncker & Humblot, 1996). 68 BVerfG 1, 14 (1951) Southwest State. 69 BVerfG 1, 299 (1952) Housing Funding. See also BVerfG 12, 205 (1961) Television I at E II: ‘In the German federal state the unwritten constitutional principle of the reciprocal obligation of the federation and the states to behave in a profederal manner governs all constitutional relationships between the nation as a whole and its members and the constitutional relationships among members . . . Previous decisions show that additional concrete obligations of the states can be developed from this principle – obligations that surpass constitutional obligations explicitly laid down in the Basic Law’: translation from Kommers and Miller, The Constitutional Jurisprudence of the Federal Republic of Germany (n 58) 92. 70 Kommers and Miller, The Constitutional Jurisprudence of the Federal Republic of Germany (n 58) 46 (emphasis in original). The principle of proportionality is another unwritten principle that plays an important role in the case law of the Bundesverfassungsgericht.

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teed by the European Convention on Human Rights. The leading case is Görgülü.71 There, the Bundesverfassungsgericht explained that in the German hierarchy of sources, the ECHR and its protocols have the status of a federal statute and accordingly ‘are not a direct constitutional standard of review’.72 However, ‘The text of the Convention and the case-law of the European Court of Human Rights serve, on the level of constitutional law, as guides to interpretation in determining the content and scope of fundamental rights and constitutional principles of the Basic Law’.73 As regards EU law, the Bundesverfassungsgericht similarly holds that it lacks the competence to review the compatibility of German law with Union law as such determinations are considered to fall within the remit of the ordinary courts.74 Furthermore, German legislative provisions that implement EU directives or decisions are, if certain conditions are fulfilled, exempt from an examination of their compatibility with the full panoply of constitutional reference standards. If the relevant Union law contains binding requirements and there is no latitude for transposition left to the German legislature,75 the Bundesverfassungsgericht refrains from assessing whether the implementing law comports with the fundamental rights contained in the Basic Law.76

V. FRANCE: CONSEIL CONSTITUTIONNEL

The French Conseil constitutionnel derives its constitutional reference standards from various sources, which are together referred to in the French discourse as the bloc de constitutionnalité (‘constitutional bloc’). We will see that the Conseil constitutionnel itself has been instrumental in fashioning this bloc de constitutionnalité and in defining its outer contours; 71 BVerfG, 2 BvR 148/04 (2004) Görgülü. English commentaries on this judgment are provided by eg F Hoffmeister, ‘Germany: Status of European Convention on Human Rights in Domestic Law’ (2006) 4 International Journal of Constitutional Law 722; G Lübbe-Wolff, ‘ECHR and National Jurisdiction: The Görgülü Case’ (2006) 12 Humboldt Forum Recht 1; F Müller and T Richter, ‘Report on the Bundesverfassungsgericht’s (Federal Constitutional Court) Jurisprudence in 2005/2006’ (2008) 9 German Law Journal 161, 162 ff. 72 Görgülü, 32; also BVerfG 10, 271 (1960); BVerfG 74, 102 (1987). The reason that the ECHR has the status of an ordinary federal law is that Germany adopts a dualist stance in relation to international law (German Basic Law, Art 59(2)). 73 Görgülü; see also the earlier BVerfG 74, 358 (1987). The Bundesverfassungsgericht further ruled that administrative authorities and ordinary courts are under a constitutional obligation ‘to take into account the guarantees of the Convention and the decisions of the ECHR as part of a methodologically justifiable interpretation of the law’ (47 ff). A failure to do so can be considered a violation of German constitutional law – ie of the corresponding fundamental right laid down in the German Basic Law read in conjunction with the principle of the rule of law in Art 20(3) of the German Basic Law – and may be brought by the affected party before the Bundesverfassungsgericht by means of a constitutional complaint (on which, see ch 3, section III-B). In such circumstances, the Bundesverfassungsgericht ‘is indirectly in the service of enforcing international law’ and may have ‘to review the application and interpretation of international-law treaties by the ordinary courts’ (61). 74 BVerfG 31, 145 (1971) Alphons Lütticke. 75 If the ordinary German court is unsure about the degree of latitude left by the Union act to the national legislature, it must inquire about the correct interpretation of the pertinent Union act by requesting a preliminary ruling from the Court of Justice under Art 267 TFEU. 76 See eg BVerfG, BvL 3/08 (2011) at 46; BVerfG 118, 79 (2007); BVerfG 125, 260 (2010). The decision to limit the grounds on which German implementing laws can be examined for their constitutionality is considered justified in light of the assumption, first accepted by the Bundesverfassungsgericht in BVerfG 73, 339 (1986) Wünsche Handelsgesellschaft (Solange II), that fundamental rights are sufficiently protected from encroachment by the Union legislature to an extent that is sufficiently similar to the level of protection available for fundamental rights under the German Basic Law (see also ch 7, section V-B). This case law is now codified in the German Basic Law, Art 23(1) first sentence.

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and that it has adopted a broad approach in so doing, thereby transforming its role within the French constitutional order. The clauses in the 1958 French constitution pertaining to the Conseil constitutionnel empower the latter to use this fundamental document as the parameter for evaluating the constitutionality of primary legislation and the standing orders of both Houses of Parliament.77 More particularly, the drafters envisaged that the Conseil constitutionnel could use the provisions found in the body of the 1958 constitution as grounds of review, while the preamble was not meant to have any legal effect.78 In many countries, such a bifurcated approach would not have significant ramifications for the functioning of the system of constitutional adjudication. This was initially different in France. The main text of the 1958 constitution contains only a few clauses that guarantee fundamental rights, due to the considerable time-pressure faced by the drafters and their preoccupation with designing a workable system of government for the new Fifth Republic to avoid a repetition of the problems that had beset the Third and Fourth Republics.79 The preamble, however, refers to various legal texts that do set out a considerable range of fundamental rights. At this juncture, it should also be recalled that the raison d’être of the Conseil constitutionnel as originally conceived was that of an umpire that would police the new horizontal division of powers between the executive and Parliament – not a guardian of individuals’ fundamental rights.80 In short, while the Conseil constitutionnel was restricted to using formal as opposed to substantive grounds to review the constitutionality of statutes before they were promulgated, this was very much in keeping with the limited role it was expected to play within the French constitutional order. The 1971 Freedom of Association ruling was a watershed moment in French constitutional law.81 The French Senate had referred a statute to the Conseil constitutionnel that sought to amend the 1901 Act on freedom of association by giving local prefects the power to refuse to register new associations. The Conseil constitutionnel held that it was impermissible to subject the exercise of freedom of association to prior scrutiny, with the result that the impugned statute could not be lawfully promulgated. Crucially, the Conseil constitutionnel relied on the preamble to the 1958 constitution to arrive at this outcome and thus accepted that it could use this preamble and, by implication, the texts mentioned therein, as standards for assessing the constitutionality of legislation:82 77 French constitution, Arts 61 and 61-1. The latter provision was inserted into the French constitution during the 2008 revision and specifies that in the context of the preliminary reference procedure (explained in ch 3, section III-A(ii)), a party to the dispute before the regular court may assert an infringement of ‘the rights and freedoms guaranteed by the Constitution’. 78 This view was expressed in unequivocal terms by a spokesman for the government, Raymond Janot, during the deliberations on the 1958 constitution: Travaux préparatoires de la constitution de 4 octobre 1958, Avis et débats du Comité consultatif constitutionnel (Paris, Documentation française, 1960). 79 J Bell, French Constitutional Law (Oxford, Oxford University Press, 1992) 62, 64. 80 For more detail see ch 2, section III-A(ii). 81 Décision no 71-44 DC of 16 July 1971. For a discussion of the decision in English see eg J Beardley, ‘The Constitutional Council and Constitutional Liberties in France’ (1972) 20 American Journal of Comparative Law 431, and, placing the judgment in its wider historical context, P Lindseth, ‘Law, History, and Memory: “Republic Moments” and the Legitimacy of Constitutional Review in France’ (1996) 3 Columbia Journal of European Law 49. 82 The Conseil constitutionnel recognised the binding nature of the preamble for the first time in Décision no 70-39 DC of 19 June 1970, Budgetary provisions of the EC Treaties. It should also be noted that a number of French academics and ordinary courts had already accepted that the preamble had a constitutional status and that the French Conseil d’État for instance had used the principles laid down in the texts to which the 1958 preamble refers as general principles of law when reviewing the legality of government acts (Conseil d’État, decision of 7 July 1950, Dehaène, Rec 426), and from the mid-1950s onwards also explicitly relied on the texts referred to in the 1958 preamble: Conseil d’État, decision of 11 July 1956, Amicale des Annamites de Paris, Rec 317; Conseil d’État, decision of 7 June 1957, Condamine, RDP 1958, 98.

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In the light of the Constitution and notably of its preamble; ... 2. Considering that, among the number of fundamental principles recognised by the laws of the Republic and solemnly reaffirmed by the preamble of the Constitution, there must be included the principle of the freedom of association; that this principle underlies the general provisions of the law of 1 July 1901 concerning agreements of associations; that by virtue of this principle associations may be freely constituted and can be made public subject to the sole condition of filing a prior declaration; that with the exception of measures that may be taken with regard to specific categories of associations, the formation of associations, even though they may appear to be void or have an illegal purpose, cannot be subjected to prior intervention by administrative or even judicial authorities regarding their validity; 3. Considering that, even if nothing is changed with respect to the formation as such of undeclared associations, the provisions of Article 3 of the law, the text of which is, before its promulgation, referred to the Conseil constitutionnel for an examination of its conformity with the Constitution, have as their object the creation of a procedure according to which the acquisition of legal capacity by declared associations could be subjected to prior scrutiny by judicial authorities for their conformity to the law; 4. Considering, consequently, it should be declared that the provisions of Article 3 of the law submitted for consideration to the Conseil constitutionnel amending Article 7 of the law of 1 July 1901 and, consequently, the provision in the last sentence of the second paragraph of Article 1 of the law submitted to the Conseil constitutionnel which refers to them, do not conform to the Constitution.

By recognising the preamble to the 1958 constitution as having legal effect, the Conseil constitutionnel gained access to three further sources of standards for constitutional review and achieved a dramatic expansion of the bloc de constitutionnalité. This preamble refers, firstly, to the 1789 Declaration of the Rights of Man and of the Citizen, which sets out a host of classic civil and political rights;83 and secondly, to the political, economic and social principles ‘especially necessary to our times’ that are enunciated in the preamble to the 1946 constitution. This latter category includes, for instance, the right to equal treatment and workers’ rights. The preamble to the 1946 constitution also provides the textual grounding for the third source, in that it reaffirms ‘fundamental principles recognised by the laws of the Republic’ (FPRLR).84 This is the category that the Conseil constitutionnel relied on in its 1971 decision, declaring that the right to freely establish associations was indeed such a fundamental principle. Of the various sources incorporated into the bloc de constitutionalité following the Freedom of Association ruling, the FPRLR is the most controversial. This is because the preamble to the 1946 constitution only acknowledges the existence of such principles, without enumerating them. The upshot is that the Conseil constitutionnel has considerable discretion in identifying and establishing the meaning of

83 The Conseil constitutionnel for the first time relied on the 1789 Declaration in Décision no 73-51 DC of 27 December 1973, Finance Law of 1974, holding that the law violated ‘the principle of equality before the law laid down in the Declaration of the Rights of Man of 1789 and solemnly reaffirmed by the preamble to the Constitution’. That all the provisions of the 1789 Declaration are available as constitutional reference standards was confirmed in Décision no 81-132 DC of 16 January 1982, Nationalisation Law, para 15. 84 The inclusion of the reference to the FPRLR in the preamble to the 1946 constitution was specifically intended to constitutionalise freedom of religious education and, more generally, to commemorate the legislative achievements of the Third Republic, notably in the social field.

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new FPRLR.85 As one commentator poignantly asked, one year after its landmark ruling: ‘Quelles Républiques? Quelles lois? Que sont les principes fondamentaux?’86 In the later Amnesty Law judgment, the Conseil constitutionnel clarified that it uses two conditions when deciding to coin FPRLR: only legislation adopted before the entry into force of the 1946 constitution will be examined for the presence of such fundamental principles and it will only countenance republic traditions that have culminated in a principle of constitutional value.87 Overall, the Conseil constitutionnel has recognised a relatively small number of FPRLR in its decisions and, with one exception, it has not added further principles to this category since 1989.88 The impact of the decision in Freedom of Association was reinforced by a 1974 constitutional amendment, which relaxed the rules on standing and made it possible for parliamentary minorities to invoke the jurisdiction of the Conseil constitutionnel.89 As a result, a greater number of laws were referred to the Conseil constitutionnel for review than before and, at the same time, the nature of the objectives formulated by the challengers changed as well: it became common to assert that the objectionable statute was unconstitutional on substantive, fundamental rights grounds rather than due to a breach of the horizontal division of powers. The upshot was a transformation of the role of the Conseil constitutionnel from an ‘organe régulateur de l’activité des pouvoirs publics’ into the ‘protecteur des droit et libertés de la personne’,90 and it became an increasingly salient body within the French constitutional order. The preamble to the 1958 constitution was amended in 2005 to include a reference to the Charter for the Environment, which had been adopted one year prior and contains socalled third generation rights. There was concern in academic circles about the propriety of using this Charter as a standard for assessing the constitutionality of legislation, given the programmatic character of many of its provisions. The Conseil constitutionnel however had

85 This category in particular takes centre stage in discussions among French constitutional scholars in defining the outer limits of the bloc de constitutionnalité and debating the room for manoeuvre that the Conseil constitutionnel enjoys in this respect. A clear yet succinct overview of the main views can be found in M-C Ponthoreau and J Ziller, ‘The Experience of the French Conseil Constitutionnel: Political and Social Context and Current Legal-Theoretical Debates’ in W Sadurski (ed), Constitutional Justice, East and West (The Hague, Kluwer Law International, 2002) 131 ff. 86 J Rivero, ‘Les principes fondamentaux reconnus par les lois de la République: une nouvelle catégorie constitutionnelle?’ [1972] Revue de droit public 265. 87 Décision no 88-244 DC of 20 July 1988, paras 11–12. This decision also made it clear that the Conseil constitutionnel requires the relevant republic laws to display consistency in the way in which a given tradition finds expression; otherwise, it will not be possible to distil a principle therefrom that will be granted the status of FPRLR. See also Décision no 98-407 DC of 14 January 1999, para 9, where the Conseil constitutionnel spoke of the FPRLR as having a certain importance. 88 In addition to freedom of association, other FPRLR recognised by the Conseil constitutionnel are freedom of education; individual liberty; respect for the rights of the defence; the independence of the administrative courts; the independence of university professors; the competence of the administrative courts in ultra vires cases; the competences of the civil courts for the protection of immovable goods; and specific consideration for juveniles in criminal law. The last principle was the exception mentioned in the main text, being recognised in Décision no 2002-461 DC of 29 August 2002, paras 26–28. 89 The importance of the link between these two events is stressed by eg M-C Ponthoreau and F Hourquebie, ‘The French Conseil Constitutionnel: An Evolving Form of Constitutional Justice’ (2008) 3 Journal of Comparative Law 269, 275 ff. A number of authors consider the 1974 constitutional amendment a clear endorsement of the 1971 judgment: see eg S Boyron, ‘Constitutional Law’ in J Bell, S Boyron and S Whittaker, Principles of French Law, 2nd edn (Oxford, Oxford University Press, 2008) 158. 90 J Gicquel, Droit constitutionnel et institutions politiques, 12th edn (Paris, Montchrestien, 1993) 773 [translation: ‘a regulatory organ of the public powers’ and ‘a guardian of rights and personal freedoms’].

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no such reservations and incorporated the Charter for the Environment into the bloc de constitutionnalité in its Genetically Modified Organisms decision.91 In addition to the sources referred to in the preamble to the 1958 constitution, the Conseil constitutionnel also makes use of so-called objectives of constitutional value (objectifs de valeur constitutionnelle) when reviewing legislation.92 This category is not mentioned in any constitutional text and the identification of new objectives of constitutional value, and the determination of their content, occurs on a case-by-case basis. The Conseil constitutionnel extracts such objectives from the general spirit which, according to its interpretation, is reflected in various clauses of the 1958 constitution or other written texts that are part of the bloc de constitutionnalité. The objectives of constitutional value serve the purpose of ensuring the effectiveness of the various constitutional rights and freedoms: the objective of media pluralism, for instance, is considered to guarantee a meaningful right to freedom of expression.93 Objectives of constitutional value circumscribe the legislature’s room for manoeuvre in exercising its powers, and disregarding them can result in the pertinent statute being declared unconstitutional.94 To illustrate how these objectives are used, consider Décision 2009-577, where the Conseil constitutionnel was asked to review the constitutionality of the law on audiovisual communication and the new public television service:95 With respect to the applicable norms of constitutionality 2. Article 11 of the Declaration of The Rights of Man and of the Citizen proclaims: ‘The free communication of ideas and opinions is one of the most precious rights of man. Every citizen may thus speak, write and publish freely, except when such freedom is misused in cases determined by Law’. The free communication of ideas and opinions would not be effective if the public for whom such audiovisual communication is intended were not able to have at its disposal, in both private and public sectors, programmes guaranteeing the expression of various schools of thought while respecting the essential requirement of honest news-gathering and communication. . . . 3. Under Article 34 of the Constitution . . .: ‘Statutes shall lay down the rules concerning . . . freedom, diversity and independence of the media’. It is up to Parliament, within the framework of the powers vested in it by the constituent power, to lay down the rules governing both freedom of communication, which derives from Article 11 of the Declaration of 1789, and the diversity and independence of the media, which are objectives of constitutional status; 4. Parliament is at all times at liberty . . . to modify or repeal previous statutes and replace the same, if need be, by other provisions, provided that such measures do not deprive requirements of a constitutional nature of statutory guarantees.

It is clear, then, that the Conseil constitutionnel has made a decisive contribution in forging a very broad bloc de constitutionnalité and it derives its constitutional reference standards 91 Décision no 2008-564 DC of 19 June 2008, paras 17–18. The Charter for the Environment was also used as a standard for review in Décision no 2009-599 DC of 29 December 2009, paras 77–83. 92 These were explicitly mentioned by the Conseil constitutionnel for the first time in Décision no 82-141 DC of 27 July 1982. Note that the Conseil constitutionnel is not consistent in the terminology it uses: it also speaks of ‘principles, provisions and rules of constitutional value’ and of ‘constitutional requirements’. For an overview of the different objectives, principles etc recognised by the Conseil constitutionnel, see D Rousseau, Droit du contentieux constitutionnel, 9th edn (Paris, Montchrestien, 2010) 107–08. 93 See P de Montalivet, ‘Les objectifs de valeur constitutionnelle’ [2006) 20 Cahiers du Conseil constitutionnel, which offers a clear overview of the role, purpose and normative character of objectives of constitutional value. 94 This happened in eg Décision no 2003-475 DC of 24 July 2003 in relation to the objective of the accessibility and intelligibility of legislation. 95 Décision no 2009-577 DC of 3 March 2009.

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from a large variety of sources. Treaty provisions and rules of EU law are however not considered to be included in this bloc.96 Article 55 of the 1958 constitution recognises that ratified treaties have priority over conflicting acts of parliament. In its first Abortion Law decision, the Conseil constitutionnel firmly declined jurisdiction to review the compatibility of French legislation with international norms: 3. While these provisions [Article 55] confer upon treaties, in accordance with their terms, an authority superior to statutes, they neither require nor imply that this principle must be honoured within the framework of constitutional review as provided by Article 61; 4. Decisions made under Article 61 of the Constitution are unconditional and final, as is clear from Article 62, which prohibits the promulgation or implementation of any provision declared unconstitutional; on the other hand, the prevalence of treaties over statutes, stated as a general rule by Article 55, is both relative and contingent, being restricted to the ambit of the treaty and subject to reciprocity, which itself depends on the behaviour of the signatory state or states and on the time at which it is to be assessed; 5. A statute that is inconsistent with a treaty is not ipso facto unconstitutional; 6. Review of the rule stated in Article 55 cannot be effected as part of a review pursuant to Article 61, because the two reviews are different in kind; 7. It is therefore not for the Constitutional Council, when a referral is made to it under Article 61 of the Constitution, to consider the consistency of a statute with the provisions of a treaty or an international agreement.97

It is settled law today that the regular judiciary bears responsibility for ensuring the supremacy of treaties over national law in accordance with Article 55 of the French constitution.98 A distinction is made in France between contrôle de constitutionnalité – the assessment whether laws comport with the bloc de constitutionnalité, performed by the Conseil constitutionnel – and contrôle de conventionnalité – reviewing the conformity of acts of parliament (and other national rules) with international treaties, a task that is carried out by the regular courts. Also, and unlike several of its colleagues in other European countries, the Conseil constitutionnel as a rule refrains from explicitly using international treaties as an interpretative device.99 Having said that, it has been acknowledged that the ECHR and the case law of the European Court of Human Rights exert an important intellectual influence on the way in which the Conseil constitutionnel interprets and develops the fundamental rights protected under the various sources that make up the bloc de constitutionalité.100 96 The Conseil constitutionnel also held that organic laws and parliamentary standing orders are not part of the bloc de constitutionnalité and cannot be used to measure legislation against in Décision no 78-96 DC of 27 July 1978 and Décision no 80-117 DC of 22 July 1980 respectively. 97 Décision no 74-54 DC of 15 January 1975, Voluntary Interruption of Pregnancy Act. 98 Décision no 86-216 DC of 3 September 1986; Décision no 89-268 DC of 29 December 1989. The Cour de cassation and the Conseil d’État accepted this jurisdiction in the decision of 24 May 1975, Administration des Douanes v Société Cafés Jacques Vabre, D, 1975, 497 and Ass 20 October 1989 (Nicolo) respectively. When the Conseil constitutionnel decides on the lawfulness of parliamentary elections, it considers itself an ordinary court and accepts the priority of international treaties over conflicting legislation: Décision no 88-1082/1117 AN of 21 October 1988 (Val-d’Oise). 99 On two occasions, the Conseil constitutionnel has exceptionally relied on international treaties in reviewing national laws, as recounted in Rousseau, Droit du contentieux constitutionnel (n 92) 113–14. 100 O Dutheillet de Lamothe provides numerous examples of the important role played by the ECHR in the development and elaboration of French constitutional rights in ‘L’influence de la cour européenne des droits de l’homme sur le Conseil constitutionnel’, speech on the occasion of a visit of members of the European Court of Human Rights, Paris, 13 February 2009.

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As mentioned, EU law is, in principle, treated as international law and the Conseil constitutionnel will not review whether statutes are compatible with Union law, it again being for the regular judiciary to detect and address any conflicts in this regard.101 A narrow modification of this position has been accepted in relation to French legislation transposing EU directives. Article 88-1 of the constitution recognises France’s participation in the European Union, and this provision has been interpreted by the Conseil constitutionnel as giving expression to a constitutional obligation to implement European directives into national law.102 Ensuring observance of constitutional requirements is a task for the Conseil constitutionnel, which has accordingly recognised that it has jurisdiction to declare that a legislative provision infringes Article 88-1 of the constitution ‘if this provision is obviously incompatible with the Directive which it is intended to transpose’.103 It should be clear that to be able to decide that there has been a breach of the constitutional obligation encapsulated in Article 88-1, the Conseil constitutionnel will have to test the impugned law against the EU directive that the former purports to implement, and in that sense it indirectly applies the directive as a reference standard to decide on the constitutionality of the pertinent piece of French legislation.104

VI. HUNGARY: ALKOTMÁNYBÍRÓSÁG

The standards that can be used by the Hungarian Alkotmánybíróság for assessing the constitutionality of acts of parliament and other legal norms have recently undergone signific ant changes. To appreciate the impact of these modifications, it is useful to first describe the situation as it used to be.

101 As regards EU Treaties, see Décision no 91-293 DC of 23 July 1991; Décision no 93-335 DC of 21 January 1994; Décision no 2004-457 DC of 27 December 2001; as regards secondary EU law, see Décision no 91-298 DC of 24 July 1991. More generally, the relevance of Art 55 of the constitution in relation to EU law was acknowledged by the Conseil constitutionnel in Décision no 70-39 DC of 19 June 1970, Budgetary provisions of the EC Treaties and Décision no 92-308 DC of 9 April 1992, Maastricht Treaty I. 102 Décision no 2004-496 DC of 10 June 2004, reiterated in eg Décision no 2004-497 DC of 1 July 2004. On the first decision, see J-H Reestman, ‘Conseil constitutionnel on the Status of (Secondary) Community law in the French Internal Order: Décision of 10 June 2004, 2004-496 DC’ (2005) 1 European Constitutional Law Review 302. 103 The formula used in Décision no 2006-540 DC of 27 July 2006; a finding of such an obvious incompatibility was made for the first time in Décision no 2006-543 DC of 30 November 2006. In Décision no 2006-540 DC, repeated in later case law, the Conseil constitutionnel also formulated two conditions as regards the exercise of this type of review. The first of these concerns the relationship between French constitutional law and EU law: while the Conseil constitutionnel will in principle refrain from measuring the implementing law against the constitution – as this would in fact amount to reviewing the constitutionality of the EU directive being implemented – it has reserved competence to review whether the implementing law infringes a rule or principle inherent in France’s constitutional identity. The second condition relates to the relationship between the Conseil constitutionnel and the European Court of Justice: due to the short period of time within which the former has to deliver its rulings, it holds that is unable to make use of the European preliminary reference procedure and ask the Court of Justice questions regarding the validity of the directive in question. This is considered the responsibility of the ordinary courts. For more detail see eg C Charpy, ‘The Status of (Secondary) Community Law in the French Internal Order: The Recent Case-Law of the Conseil Constitutionnel and the Conseil d’État’ (2007) 3 European Constitutional Law Review 436 and references mentioned therein. 104 Décision no 2006-535 DC of 30 March 2006 at 28 confirms that the Conseil constitutionnel will not examine the compatibility of French laws with directives in general; its review is confined to laws that concretely aim to transpose a directive.

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From its establishment in 1990 until 2012, the Alkotmánybíróság chiefly used the clauses of the 1949 constitution (as amended)105 as the grounds on which to test the validity of statutes and other normative acts. It took a broad approach in interpreting this fundamental document, particularly in its early case law, and on occasion identified and constitutionalised rights that were not mentioned with so many words in the text itself. Thus, in Decision 8/1990, the Alkotmánybíróság held that the clause guaranteeing respect for human dignity106 gave expression to a general right of personality, which furthermore has the status of a ‘mother right’ and can accordingly serve as a source from which to extract further constitutional rights that can thereupon also be used as benchmarks for evaluating the constitutionality of laws and other norms: The Decision of the Constitutional Court is based on the interpretation of the right to human dignity. This right at the beginning of the Chapter about fundamental rights and obligations in Art. 54(1) of the Constitution is declared as an inherent right. The Constitutional Court regards the right to human dignity as another phrase for a ‘general right of personality’. In modern constitutions and in the practice of constitutional courts, the general right to personhood encompasses various aspects, such as the right to free personal development, the right to free self-determination, general freedom of action or the right to privacy. The general right of personality is a ‘mother right’ – i.e., a subsidiary fundamental right which may be relied upon at any time by both the Constitutional Court and other courts for the protection of an individual’s autonomy when none of the concrete, named fundamental rights is applicable for a particular set of facts.107

By means of illustration, the Alkotmánybíróság subsequently derived the right to know one’s own ancestry,108 the right to be in a same-sex partnership,109 and guarantees associated with the right to self-determination in civil litigation110 from the general personality right.111 A comparable approach was adopted in relation to the principle of the rule of law. While certain core elements of this concept were expressly laid down in individual constitutional provisions, the rule of law was considered to also encompass other values not spelled out in so many words in the 1949 constitution. The Alkotmánybíróság accordingly decided that Article 2(1), which contained a general reference to the rule of law, could be used as a standard of constitutional review in its own right – which in turn meant that it could use this provision as a vessel for such unwritten values:

105 The constitutional transition from Communism to liberal democracy in the late 1980s was carried out in Hungary by means of radical modification of the pre-existing Stalinist constitution of 1949, rather than through the promulgation of a fresh constitutional document, as explained in ch 2, section III-B(vi). 106 See also L Sólyom, ‘Introduction to the Decisions of the Constitutional Court of the Republic of Hungary’ in L Sólyom and G Brunner, Constitutional Judiciary in a New Democracy: The Hungarian Constitutional Court (Ann Arbor, University of Michigan Press, 2000) 38 ff. On the interpretation of this clause more generally, see C Dupré, Importing the Law in Post-Communist Transitions: The Hungarian Constitutional Court and the Right to Human Dignity, Human Rights Law in Perspective (Oxford, Hart Publishing, 2003); C Dupré, ‘The Right to Human Dignity in Hungarian Constitutional Case-Law’ in Venice Commission, The Principle of Respect for Human Dignity (Strasbourg, Council of Europe Publishing, 1999). 107 Decision 8/1990 of 23 April 1990. Extracts in English from this decision can be found in Sólyom and Brunner, Constitutional Judiciary in a New Democracy (n 106) 105–07. 108 Decision 57/1991 of 8 November 1991. 109 Decision 14/1995 of 13 March 1995. 110 Decision 9/1992 of 30 January 1992. 111 For a succinct overview of these and various other important judgments, see G Halmai, ‘The Hungarian Approach to Constitutional Review: The End of Activism? The First Decade of the Hungarian Constitutional Court’ in Sadurski (ed), Constitutional Justice, East and West (n 85) 199–200.

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Article 2(1) of the Constitution states that the ‘Republic of Hungary is an independent, democratic state under the rule of law.’ This general provision of the Constitution declares the basic values of the republic: independence, democracy and the rule of law. The principle of the rule of law is expounded in further detail by other provisions of the Constitution, although these provisions do not comprise the whole content of this fundamental value, and hence the interpretation of the notion of the rule of law is one of the Constitutional Court’s important tasks. The principles comprising the fundamental value of the rule of law are expounded by the Constitutional Court on a gradual, case-by-case basis. Although in the process of a constitutional review of a legal rule the Constitutional Court primarily examines the compatibility of the challenged regulations with specific provisions of the Constitution, this does not mean that the general provisions are seen as formal declarations and that the fundamental principles are consigned to a secondary, mere auxiliary role. The violation of the fundamental value of the rule of law enumerated in the Constitution is in itself a ground for declaring a certain legal rule unconstitutional.112

The Alkotmánybíróság notably recognised legal certainty as a chief unwritten principle that is part of the concept of the rule of law.113 It subsequently used this principle as a ground of review in several cases concerning legislation dealing with the past (for instance regarding retroactive punishment)114 and in decisions in which it examined laws that sought to reform the Hungarian social security system.115 To appreciate the relationship between the text of the 1949 constitution and unwritten principles, mention should also be made of the notion of the ‘invisible constitution’. The first president of the Alkotmánybíróság, László Sólyom, coined the idea of an invisible constitution in his concurring opinion in the early landmark case in which the death penalty was declared unconstitutional. According to him: The Constitutional Court has to create its own interpretation of the right to life. In this context, the starting point is the whole Constitution. The Constitutional Court must continue its effort to explain the theoretical bases of the Constitution and the rights included in it and to form a coherent system with its decisions in order to provide a reliable standard of constitutionality – an ‘invisible Constitution’ – beyond the Constitution, which is often amended nowadays by current political interests . . . The Constitutional Court enjoys freedom in this process as long as it remains within the framework of the concept of constitutionality.116

Although other constitutional judges refrained from explicitly endorsing this notion of the invisible constitution, it continued to exert influence on the Alkotmánybíróság’s decisions.117 Lastly, it ought to be mentioned that, as is for instance also the case in Belgium, none of the constitutional provisions or unwritten values that could serve as grounds for

112 Decision 9/1992 of 30 January 1992, On the protest of illegality, under V-2, taken from the English translation available on the court’s website. 113 On this, and on the rule of law as used by the other central and eastern constitutional courts, see generally D Robertson, The Judge as Political Theorist: Contemporary Constitutional Review (Princeton, Princeton University Press, 2009) 124 ff; R Uitz, ‘The Rule of Law in Post-Communist Constitutional Jurisprudence: Concerned Notes on a Fancy Decoration’ in G Palombella and N Walker (eds), Relocating the Rule of Law (Oxford, Hart Publishing, 2008). 114 For the first time in Decision 11/1992 of 5 March 1992. For a fuller discussion see ch 7, section II-A(ii). 115 Decision 43/1995 of 30 June 1995, reported in English in Sólyom and Brunner, Constitutional Judiciary in a New Democracy (n 106) 322 ff. On this judgment and its wider context see A Sajó, ‘How the Rule of Law Killed Hungarian Welfare Reform’ (1996) 5 East European Constitutional Review 44. 116 Decision 23/1990 of 31 October 1990, Capital punishment, p 16 of the English translation available on the court’s website. 117 A Sajó, ‘Reading the Invisible Constitution: Judicial Review in Hungary’ (1995) 15 OJLS 253, 266–67.

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review were attributed the status of ‘supra-constitutional’ rules118 and as such placed outside the reach of the constitution-maker.119 We saw in chapter three that, besides checking the constitutionality of primary legislation, the Alkotmánybíróság also has jurisdiction to review the compatibility of sub-statutory acts with the constitution.120 When carrying out such an evaluation under the pre-2012 constitutional framework, the provisions of the 1949 constitution specifying the hierarchy of norms were used as benchmarks121 and the Alkotmánybíróság did not directly use ordin ary laws that delegate powers to the executive as grounds for review. As it explained in one of its judgments: ‘The Constitutional Court may annul a law only on the ground that it is unconstitutional. If a contested act is not contrary to any provision of the constitution, it is not legally possible to annul it.’122 Under the old constitutional framework, the Alkotmánybíróság could also determine whether laws and sub-statutory acts were not in breach of treaties – a possibility that is retained in slightly different form under the new Fundamental Law, as we shall see.123 Before 2012, controlling the constitutionality of Hungarian legal provisions and assessing whether those same provisions comported with recognised rules of international law were conceived as separate procedural actions, each with its own rules on standing.124 As a corollary, the Alkotmánybíróság would not perform both types of review concurrently and the review of Hungarian legal norms in the light of treaties was considered ancillary to determining the validity of those norms on constitutional grounds. Like many of its counterparts in other States, the Alkotmánybíróság did contemplate a more indirect role for international human rights treaties in the course of constitutional adjudication and used such treaties and relevant rulings by international judicial bodies as a valuable source of inspiration in deciding on the meaning of the fundamental rights laid down in the Hungarian constitution. References to decisions of the European Court of Human Rights were particularly common, because the Hungarian catalogue of rights was partially modelled after the ECHR. At the same time, the Alkotmánybíróság was ‘not willing to make the Convention . . . part of the binding interpretation of . . . constitutional rights and so the 118 In Decision 61/2001 of 12 July 2011, the Hungarian court suggested that international norms of a ius cogens character, including fundamental rights as laid down in international treaties, could qualify as immutable con stitutional principles, without however further elaborating the precise meaning and impact of this assertion: see M Varju and F Fazekas, ‘The Reception of European Union Law in Hungary: The Constitutional Court and the Hungarian Judiciary’ (2011) 48 CML Rev 1945, 1959. 119 The Alkotmánybíróság accordingly also originally ruled that it was not competent to examine the constitutionality of the provisions contained in the constitution or constitutional amendments: Decision 293/B/1994; Decision 23/1994 of 29 April 1994. It later held that it was able to verify whether the constitution itself or modifications thereof suffered ‘from invalidity under public law, which make[s] [them] null and void’ in Decision 61/2011 of 13 June 2011. Under the new Fundamental Law as modified by the Fourth Amendment, the Hungarian court is expressly given the power to examine this foundational document and amendments thereto, but only for compliance with the relevant procedural rules pertaining to their adoption. Strict time limits apply (Hungarian Fundamental Law, new Art 24(5)). 120 ch 3, section III-A. 121 Hungarian constitution, Art 35(2) (as regards government decree regulations); Art 37(3) (concerning ministerial decrees); Art 44/A(2) (concerning decrees adopted by local representative bodies). 122 Headnote to Decision 42/1995 of 30 June 1995. 123 Hungarian constitution, Art 7, which stated that the legal system of the Republic of Hungary accepted the generally recognised rules of international law and would ensure harmony between domestic law and the obligations assumed under international law. Note that this provision has been interpreted as establishing that the Hungarian legal order takes a dualist approach to international law. 124 Hungarian constitution, Art 44; Act XXXII of 1989 on the Constitutional Court, Art 21(2) and (3). More generally on the standing rules in the context of the different procedures that provide access to the Alkotmánybíróság, see ch 3.

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Convention remains . . . a non binding source of inspiration’.125 In Decision 72/2006, the Hungarian court held that EU law was not included in the category of international treaties that could be used as standards to assess the validity of legislation and sub-statutory acts.126 Enforcing the supremacy of EU law over conflicting Hungarian law was considered the responsibility of the regular courts and the Alkotmánybíróság accordingly refused to entertain claims asserting the unconstitutionality of acts of parliament or lower-ranking measures on account of their alleged incompatibility with Union law.127 The standards that the Alkotmánybíróság may use when reviewing laws and other normative acts below the rank of statute for their constitutionality have changed in the wake of the 2010 parliamentary elections. As mentioned in previous chapters, the Fidesz Party won 68 per cent of the seats in Parliament and, together with its coalition party, had enough support to successfully use the procedure to change the constitution. One such amendment curtailed the scope of the constitutionality control that the Alkotmánybíróság can perform vis-à-vis budget and tax legislation. This amendment was adopted in response to the decision of the Alkotmánybíróság declaring unconstitutional an important tax law that had been passed by the new coalition as part of a package of economic measures to improve the country’s financial situation.128 Under the new text of the relevant constitutional clause, the Alkotmánybíróság could only use certain enumerated rights – namely the right to life and human dignity, the right to the protection of personal data, the right to freedom of thought, conscience and religion, or rights connected to Hungarian citizenship – as stand ards for assessing the constitutionality of budget and tax legislation.129 In addition, the Fidesz Party commenced work on the drafting of a new constitution to replace the existing 1949 constitution of Stalinist origin that had been fundamentally revised following Hungary’s transition to democracy.130 The new document – called the Fundamental Law of Hungary, to distinguish it from its predecessor, in relation to which the term ‘constitution’ is used131 – entered into force on 1 January 2012.132 The Fundamental Law confirms that the Alkotmánybíróság is only allowed to test the constitutionality of budget and tax legislation on the just mentioned, limited grounds.133 When reviewing other 125 P Sonneveld, ‘Report on Hungary’ in Martinico and Pollicino (eds), The National Judicial Treatment of the ECHR and EU Laws (n 39) 265. 126 Decision 72/2006 of 12 December 2006 at 47, referring to Decision 1053/E/2005 of 16 June 2006. 127 ibid; see also Varju and Fazekas, ‘The Reception of European Union Law in Hungary’ (n 118) 1960–61 and references mentioned therein. 128 Decision 184/2010 of 26 October 2010. The law in question was referred by the president and imposed a 98% tax on severance payments in the public sector granted since 2005. 129 Hungarian constitution, § 32/A(2) as amended. Paragraph 3 of the same Article stipulates that these are also the only grounds on which the Alkotmánybíróság may declare budgetary laws unconstitutional. 130 Although the old text was intended to have a temporary character according to its preamble, earlier attempts to adopt a new constitution had come to nothing and, despite calls in academic circles, many Hungarians believed that the 1949 constitution as amended was there to stay: see eg A Jakab, ‘The Republic of Hungary: Commentary’ in R Wolfrum and R Grote (eds), Constitutions of the Countries of the World (New York, Oceana, 2008) 32 ff. 131 Note in this respect the preamble to the Fundamental Law, which proclaims the ‘communist constitution of 1949, since it was the basis of a tyrannical rule’ invalid. 132 For a general assessment, see G Tóth (ed), Constitution for a Disunited Nation: On Hungary’s 2011 Fundamental Law (Budapest, CEU Press, 2012). 133 Hungarian Fundamental Law, Art 37(4). The provision stipulates that this restriction applies ‘as long as the level of state debt exceeds half of the Gross Domestic Product’. After the entry into force of the Fourth Amendment to the Fundamental Law, the limitation will also apply when the constitutional court is asked to review the constitutionality of legislation at a point in time when the level of State debt no longer exceeds half of the GDP, but when the law in question had been published in the period during which the State debt did exceed that threshold.

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legal provisions, the Hungarian court may use the full text of the Fundamental Law as a benchmark.134 It is clear that, to the extent that the rules, principles and values contained in this document differ from those laid down in its predecessor, the grounds for constitutional review are modified accordingly. This is not the place to provide a comprehensive comparison of the two constitutional documents with a view to identifying such variations. Yet, there are a couple of provisions in the Fundamental Law that should be mentioned here that may be of particular relevance for the way in which the Alkotmánybíróság carries out its mission. First, Article N(3) provides that the Hungarian constitutional court – and the same applies to other organs of the State – must respect the principle of balanced, transparent and sustainable budget management ‘in the course of performing [its] duties’. It is at present not clear what exactly this obligation entails. In its opinion on the Fundamental Law, the Venice Commission was apprehensive about imposing such a duty on the Alkotmánybíróság and asserted that it ‘wishe[d] to understand this obligation as a requirement applicable to the administrative management of the Constitutional Court as a public institution, and not as an interpretation principle to be enforced in the context of its constitutional review task’.135 Second, the Fundamental Law in any event contains an explicit instruction that must be observed in deciding on the meaning of its individual provisions. According to Article R(3), constitutional clauses must be interpreted ‘in accordance with their purposes, with the Avowal of National Faith contained therein, and with the achievements of our historical constitution’. There is not much guidance as to the latter concept, but references to the historical constitution can also be found in the preamble to the Fundamental Law, which seems to suggest that this preamble is legally significant. As mentioned, the Alkotmánybíróság has retained the competence under the Fundamental Law to review the compatibility of Hungarian laws and sub-statutory acts with treaties.136 More precisely, it can be asked by selected public institutions137 to enforce treaties against conflicting provisions of Hungarian law, or decide to do so sua sponte, when adjudicating claims submitted to it through any of the procedures described in chapter three. The regular courts are under an obligation to make a preliminary reference to the Alkotmánybíróság when they have reservations about the compatibility of Hungarian law with treaties. In contrast to the situation under the old constitutional framework, review of legislation in the light of international law is today thus largely integrated with constitutionality control. In a judgment handed down a few months after the Fundamental Law entered into force, the Alkotmánybíróság emphasised the enduring relevance of the body of constitutional case law that had been developed under the old constitution in cases where the language of that text and the new Fundamental Law was the same or largely similar: The Constitutional Court’s statements made on the fundamental values, human rights and freedoms and on the constitutional institutions that have not been changed fundamentally by the Fundamental Law remain valid. The principal statements expressed in the Constitutional Court’s Hungarian Fundamental Law, Art 24. Venice Commission, Opinion 621/2011 on the New Constitution of Hungary (CDL-AD (2012)009), Venice, 17–18 June 2011), 21. 136 Hungarian Fundamental Law, Art 24(2)(f) read together with Act CLI of 2011 on the Constitutional Court, Art 32. 137 Namely, a quarter of MPs, the government, the Commissioner for Fundamental Rights, the president of the highest judicial authority (the Curia) or the general prosecutor. 134 135

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decisions based on the previous Constitution shall remain applicable as appropriate also in the decisions interpreting the Fundamental Law. However, the statements made in the decisions interpreting the previous Constitution cannot be taken over automatically without any examination; the provisions of the previous Constitution and of the Fundamental Law have to be compared and carefully weighed. If the comparison results in establishing that the constitutional regulation has not been changed or [that] it is essentially similar to the previous one, then the constitutional interpretation can be transposed. On the other hand, when the content[] of the provisions of the previous Constitution and of the Fundamental Law are the same, . . . reasoning is required for not taking into account the legal principles presented in the former decisions of the Constitutional Court, and not in the case of applying them.138

This decision suggests that the Hungarian court was keen to provide stability and continuity when providing constitutional justice notwithstanding changes to the constitutional setting within which it performs its tasks.139 In fact, in several rulings delivered in 2012, the Alkotmánybíróság found that the applicable constitutional provisions had remained substantially similar or identical in content and accordingly relied on the principles developed in its pre-2012 jurisprudence.140 The continued application of this judicial doctrine has recently been prohibited, however. In March 2013, the Hungarian Parliament passed a constitutional amendment which declares that ‘Decisions and their reasoning of the Constitutional Court prior to the coming into force of the Fundamental Law cannot be used for interpreting the Fundamental Law’.141 The upshot is that the Alkotmánybíróság will have to start building its constitutional jurisprudence anew and it remains to be seen whether we will see decisions that in effect replicate earlier judgments or conversely the emergence of a rather different body of case law in the coming years.

VII. ITALY: CORTE COSTITUZIONALE

In its very first judgment, the Italian Corte costituzionale explained that it can, and will, use all the clauses of the constitution as benchmarks for constitutional review.142 The import ance of this statement should not be underestimated. In the period between the adoption of the 1948 constitution and the moment the Corte costituzionale commenced operations in 1956, all ordinary courts were competent to review legislation for its constitutionality.143 Early on, the Italian court of cassation had declared that the bulk of the constitutional clauses guaranteeing fundamental rights should be considered as programmatic instead of Decision 22/2012 of 11 May 2012, para 41. See also the statement of President Péter Paczolay of 27 January 2013 (available on the court’s website), explaining that the Alkotmánybíróság takes a broad approach to the grounds for reviewing the constitutionality of legal acts under the Fundamental Law: ‘The term “fundamental law” reflects a constitutional approach whereby constitutionality refers to more than merely the text of the Fundamental Law of Hungary: the Hungarian constitutional traditions, including the Constitutional Court’s practice accumulated in the past more than twenty years, as well as the European culture of constitutional law and its principles clearly manifested in international documents all form part of the Constitutional Court’s standards.’ 140 See eg Decision 45/2012 of 29 December 2012; Decision 1/2013 of 7 January 2013. 141 Fourth Amendment to the Fundamental Law of Hungary, Art 19. See also ch 7, section II-C(iv). 142 Sentenza 1/1956 of 5 June 1956. See also J Adams and P Barile, ‘The Italian Constitutional Court in its First Two Years of Activity’ (1957) 7 Buffalo Law Review 250. 143 Italian constitution, transitional and final provision VII. 138 139

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prescriptive norms, which meant that they could not be judicially enforced in the absence of implementation by the legislature.144 The Corte costituzionale however rejected this distinction and clarified that the full text of the constitution, including the catalogue of fundamental rights, could serve as a standard for assessing the constitutionality of legislation: [T]he well-known distinction between prescriptive and programmatic norms . . . is not decisive for judgments on constitutional legitimacy, since the constitutional illegitimacy of a law may derive, in some cases, even from its irreconcilability with norms known as programmatic.145

The constitution makes reference to two other sources of law that are accordingly considered to have a constitutional status and can be used as reference standards when controlling the validity of ordinary acts of parliament. The first category consists of constitutional acts that implement or otherwise give effect to specific constitutional provisions and that have been adopted according to the special procedure laid down in Article 138 of the constitution.146 These statutes resemble the constitutional acts that we find in the Czech Republic and, similar to its Czech counterpart, the Corte costituzionale also accepts jurisdiction to review the compatibility of constitutional acts with the supreme principles (principi supremi) of the Italian constitutional order: The Italian Constitution contains some supreme principles that cannot be subverted or modified in their essential content either by laws or constitutional amendment or other constitutional laws. Such are principles that the Constitution itself explicitly provides as absolute limits to the power of constitutional revision, such as the republican form (Art. 139 of the Constitution), as well as principles that, although not expressly mentioned among those not subject to the principles of constitutional revision, are part of the supreme values on which the Italian Constitution is based.147

Secondly, Article 10 of the constitution requires that the Italian legal system conform to ‘the generally recognised principles of international law’. The Corte costituzionale has stated that this clause must be read as referring to those principles that are part of international customary law and that such principles can be used to test the constitutionality of Italian legislation.148 It should be clear that the Corte costituzionale makes use of unwritten rights and principles in carrying out its mandate. As we have just seen, these comprise the principi supremi – like the democracy principle and that of constitutional rigidity149 – and principles of customary international law.150 Similar to the approach adopted by several of its colleagues in other countries, the Corte costituzionale further regards Article 2 of the constitution, which affirms that Italy respects the inviolable rights of the person, as an ‘open textured provi Cass 7 February 1948, Marcianò, Giur It 1948, II, 129. Sentenza 1/1956 of 5 June 1956. 146 The procedure prescribed in that clause must also be followed for amendments to the Italian constitution. 147 Sentenza 1146/1988 of 15 December 1988 at 2.1. See also sentenza 30/1971 of 24 February 1971; sentenza 12/1972 of 27 January 1972; sentenza 175/1973 of 6 December 1973; sentenza 1/1977 of 4 January 1977; sentenza 18/1982 of 22 January 1982. 148 Sentenza 168/1994 of 27 April 1994; sentenza 15/1996 of 22 January 1996; sentenza 288/1997 of 19 June 1997; sentenza 73/2001 of 19 March 2001; sentenza 224/2005 of 6 June 2005. 149 V Ferreres Comella, Constitutional Courts & Democratic Values: A European Perspective (New Haven, Yale University Press, 2009) 107 fn 38. 150 Sentenza 48/1967 of 12 April 1967. The constitutional status of these principles is said by some scholars to derive from sentenza 48/1979 of 12 June 1979 and sentenza 15/1996 of 22 January 1996: L Cappuccio, ‘Le consuetudini internazionali tra Corte costituzionale e Corti di giustizia’ (2004) 14 Quderni Costituzionale 5. 144 145

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sion’151 that allows it to recognise new fundamental rights in addition to those explicitly protected by that document. Examples include the right to sexual freedom, the right to one’s own identity and the right to marry.152 Constitutional customs (consuetudini costituzionali) are a further source of unwritten principles153 and are for instance relevant in fleshing out the relationship between Parliament and the government.154 In addition, some authors consider that the principle of reasonableness, which is frequently used by the Corte costituzionale in assessing the validity of legislation, also qualifies as an unwritten principle and benchmark for review.155 It should be acknowledged, however, that it is often difficult to make a sharp distinction between the use of unwritten principles as interpretative devices, relied on by the Corte costituzionale to establish the meaning of written constitutional clauses, and their use as free-standing grounds of review.156 The Italian court further uses so-called ‘interposed norms’ (norme interposte)157 in constitutional adjudication. This concept has been coined by Italian constitutional scholarship ‘to individualize the cases in which a constitutional standard can be invoked only indirectly in a constitutional judicial proceeding, because different primary provisions are inserted between the constitutional standard and the reported provisions (suspected of being unconstitutional)’.158 Norme interposte are thus found in ordinary laws, but have constitutional backing, in the sense that clauses of the constitution prescribe that these norms must be respected, including by other ordinary statutes. Prior to 2001, the main norme interposte were laws authorising the delegation of legislative power to the government, which were used as standards for assessing the constitutionality of the resultant regulations issued by the government;159 State laws laying down guidelines for the exercise of legislative powers by the regions, relied on to determine whether regional legislation has breached the vertical division of powers;160 and the statuti (charters) adopted by the Italian regions, which served as grounds for review of ordinary regional legislation. The scope of this category of norme interposte evolved following an important constitutional reform in 2001, during which significant powers and responsibilities were transferred from the central echelon of government to the Italian regions. As part of this devolution drive, Article 117(1) of the constitution was modified. It currently states that ‘Legislative powers shall be vested in the State and the Regions in compliance with the constitution and with the constraints deriving from EU legislation and international obligations’. The Corte 151 C Fusaro, ‘Italy’ in D Oliver and C Fusaro (eds), How Constitutions Change: A Comparative Study (Oxford, Hart Publishing, 2011) 224. 152 For a comparison of the approach of the Italian Corte costituzionale and that of the French Conseil constitutionnel as regards the identification of unwritten rights, see M-C Ponthoreau, La reconnaissance des droit non-écrits par les cours constitutionnelles italienne et française: essai sur le pouvoir créateur du juge constitutionnel (Paris, Economica, 1994). 153 Some authors have argued that these constitutional customs should be distinguished from ‘constitutional conventions’: see eg L Paladin, Le fonti del diritto italiano (Bologna, Il Mulino, 1996) 399 ff. 154 See eg sentenza 7/1996 of 6 December 1995 recognising the legitimacy of individual motions of no confidence. 155 See eg G Razzano, Il parametro delle norme non scritte nella giusprudenza costituzionale (Milan, Giuffrè, 2002); E Albanesi, Pareri parlamentari e limiti della legge (Milan, Giuffrè, 2010) 34–35. 156 This explains why some scholars have argued that unwritten principles are hardly justiciable: see Paladin, Le fonti del diritto italiano (n 153). 157 This concept was developed by Carlo Lavagna in his Problemi di giustizia costituzionale sotto il profilo della ‘manifesta infondatezza’ (Milan, Giuffrè, 1957) and was later taken up by the Corte costituzionale. 158 F Dal Monte and F Fontanelli, ‘The Decisions No 348 and 349/2007 of the Italian Constitutional Court: The Efficacy of the European Convention in the Italian Legal System’ (2008) 9 German Law Journal 889, 897 fn 27. 159 The relevant constitutional provision in this respect is Art 76. 160 Pursuant to the pre-2001 version of Art 117 of the Italian constitution.

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costituzionale interpreted the latter part of this clause in an important string of cases decided in 2007.161 To appreciate these rulings, it should be pointed out that Italy adopts a dualist approach to the relationship between treaties and national law. This means that international treaties are not automatically considered part of the Italian legal system upon their ratification, but must be transposed into national law. The position of statutes incorporating treaties within the hierarchy of sources of law is no different from other acts passed by Parliament. This meant that the later conflicting legislation took precedence over incorporated treaties and that the latter could not be used as grounds for constitutionality control. This line of reasoning also applied to human rights treaties, notably including the European Convention on Human Rights.162 Having said that, the Corte costituzionale did affirm the importance of the substantive rights guaranteed by this Convention and other human rights treaties – notwithstanding their formal hierarchical position within the national legal order – and sought to interpret the fundamental rights laid down in the constitution in line with the internationally protected rights.163 Judgments 347, 348 and 349 of 2007 marked a change in approach.164 There, the Corte costituzionale ruled that the new wording of Article 117 of the constitution meant that treaties, including the ECHR,165 now enjoy the status of norme interposte and that they can accordingly be used to assess the validity of legislation adopted by the State or the regions. To be clear, all norme interposte – incorporated treaties included – are placed below the constitution within the hierarchy of norms, with the upshot that the Corte costituzionale is able to verify their compatibility with the latter document before accepting such norme interposte as benchmarks for review. Thus, in the last of the three 2007 decisions, which dealt with compensation for the expropriation of private lands, the Italian court first established the meaning of the relevant provisions of the ECHR and then continued as follows: In conclusion, given the confirmation of the assertion in the case before the court that monetary redress which does not correspond to the real value of the property is illegitimate, the provisions governing the liquidation of damages provided for in the contested national legislation breach, in a manner insurmountable through interpretation, Article 1 of the Additional Protocol [to the ECHR], as interpreted by the European Court [of Human Rights]; and for this particular reason also violate Article 117(1) of the Constitution. On the other hand, the international treaty provision, as interpreted by the European Court, does not breach the relevant norms of our Constitution.166

When it comes to the enforcement of Union law by the Corte costituzionale, a distinction is made between the two principal ways in which constitutional issues can be brought before 161 Ordinanza 347/2007 of 10 October 2007; sentenza 348/2007 of 22 October 2007; sentenza 349/2007 of 22 October 2007. On this last judgment, see also T Groppi and C Meoli, ‘Convention européenne des droit de l’homme et ordre juridique national: Cour constitutionnelle italienne, 24 octobre 2007’ in P Bon and D Maus (eds), Les grandes décisions des cours constitutionnelles européennes (Paris, Dalloz, 2008) 413–19; Dal Monte and Fontanelli, ‘Decisions No 348 and 249/2007 of the Italian Constitutional Court’ (n 158). 162 See eg sentenza 188/1980 of 16 December 1980; sentenza 315/1990 of 26 June 1990; ordinanza 388/1999 of 12 July 1990. Note that there had been attempts in the literature to identify a constitutional basis to attribute a higher (special) status to the ECHR. For a succinct overview in English of the various positions, see G Martinico and O Pollicino, ‘Report on Italy’ in Martinico and Pollicino (eds), The National Judicial Treatment of the ECHR and EU Laws (n 142). 163 See in particular ordinanza 388/1990 of 12 July 1990, but also eg sentenza 505/1995 of 11 December 1995; ordinanza 305/2001 of 12 July 2001; sentenza 231/2004 of 8 July 2004. 164 Ordinanza 347/2007; sentenza 348/2007; sentenza 349/2007 (n 161). 165 The Corte costituzionale has also indicated that in establishing the meaning of ECHR provisions, it will consider the interpretation given to them by the European Court of Human Rights: see eg sentenza 311/2009 of 16 November 2009. 166 Sentenza 349/2007 (n 161) considerato in diritto 8.

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it, namely indirectly through preliminary questions submitted by regular courts and directly through claims filed by the State or the regions alleging a breach of the vertical division of competences.167 The Corte costituzionale in principle accepts that EU law is of a constitutional nature with reference to Article 11 of the Italian constitution, which allows for certain limitations of sovereignty,168 and that EU law accordingly prevails over conflicting national law.169 As explained in chapter three, the logic of having a system of centralised constitutional adjudication entails that the ordinary courts must normally refer conflicts between statutes and higher-ranking norms to the constitutional court for decision. Yet, in the case of directly applicable EU law, the Corte costituzionale has come to recognise that the regular Italian courts have the authority to disregard parliamentary enactments that they have found to be incompatible with EU law, without its consultation being required.170 Conversely, in the context of proceedings initiated directly before the Corte costituzionale, it has accepted that it can use EU law as a ground to control the validity of the pertinent legal provisions.171 Initially, EU law was incorporated into the set of constitutional reference standards through Article 11 of the Italian constitution.172 In Decision 103/2008, however, the Corte costituzionale changed its doctrine and held that it can rely on EU law to determine whether the statute referred for review breaches Article 117(1) of the constitution as amended: In cases, such as the present, which are pending before the Constitutional Court, the latter having been seized directly by the state, and which concern the constitutionality of a regional provision due to incompatibility with [EU] law, the latter ‘function as interposed norms capable of supplementing the principle used to assess the conformity of regional [or national] legislation with Article 117(1) of the Constitution’ or more precisely give specific form to the general principle contained in Article 117(1) of the Constitution [that laws should be in accordance with the Constitution and within the limits set by EU law and international obligations], resulting in a declaration of unconstitutionality of the regional [or national] provision judged to be incompatible with the [EU] law provisions in question.173 167 The ensuing discussion thus does not aim to analyse the relationship between EU law and the Italian con stitution according to the case law of the Corte costituzionale. For an overview of this relationship, see M Claes, The National Courts’ Mandate in the European Constitution, Modern Studies in European Law (Oxford, Hart Publishing, 2006) 152–54. 168 As such, the role of Art 11 is akin to that played by Arts 10 and 138 of the constitution vis-à-vis international customary law and constitutional acts discussed earlier. Note also that there is thus a difference in treatment between rules of EU law and the ECHR: the former have constitutional status, while the latter is of sub- constitutional rank. The Corte costituzionale has not been willing to rescind this distinction by granting a more privileged status to the ECHR similar to that enjoyed by EU law: see eg sentenza 349/2007 (n 161) considerato in diritto 6.1. 169 The Corte costituzionale has however asserted a right to assess the compatibility of EU law with specific constitutional parameters, namely the fundamental principles of the constitutional order and the inalienable rights of the human rights: see sentenza 183/1973 of 18 December 1973, Frontini; sentenza 170/1984 of 5 June 1984, Granital; see also ch 7, section V-B. 170 This would only be different if the norm of EU law to be applied instead of the domestic legal rule were considered to impinge upon the fundamental principles of the Italian constitutional order: in such cases, the ordinary court is required to ask the Corte costituzionale for a preliminary ruling. This position has only gradually come about, following a couple of conflicts with the Court of Justice of the European Union, which insists, in line with its own case law, that all national judges must be able to control the conformity of national legislation with EU law. 171 Furthermore, the Corte costituzionale may review the constitutional legitimacy of national law in terms of its compatibility with non-directly applicable EU law: see sentenza 28/2010 of 25 January 2010; sentenza 227/2010 of 21 June 2010. 172 Sentenza 384/1994 of 7 November 1994; sentenza 94/1995 of 20 March 1995. 173 Ordinanza 103/2008 of 13 February 2008 (my translation), with the Corte costituzionale referring to sentenza 129/2006 of 23 March 2006; sentenza 406/2005 of 24 October 2005; sentenza 166/2004 of 7 June 2004; sentenza 7/2004 of 18 December 2003; ordinanza 348/2007 (n 161).

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VIII. POLAND: TRYBUNAŁ KONSTYTUCYJNY

The standards that the Polish Trybunał Konstytucyjny may use to control the constitutionality of legal norms have changed over the course of its existence. This is in particular the result of the entry into force of a new constitution in 1997, which replaced the 1952 constitution of Communist vintage, which had continued to apply – albeit in a significantly revised form – since the fall of Communism in Poland in 1989. In what follows, we will consider the grounds for review that the Trybunał Konstytucyjny has used since that date.174 As in other jurisdictions, the Polish tribunal uses the national constitution as the main standard for assessing the validity of legal act, submitted to it for review. In its pre-1997 version, this foundational document suffered from various gaps, notably as far as the scope of the catalogue of fundamental rights and liberties was concerned. To overcome these shortcomings, the Trybunał Konstytucyjny turned to the new Article 1 introduced into the constitution in 1989, according to which ‘The Republic of Poland is a democratic state, ruled by law and implementing principles of social justice’. The Trybunał Konstytucyjny derived several key rules and principles from this clause, which were imbued with constitutional status and used as grounds for the review of acts of parliament and sub-statutory norms.175 These included, for instance, the prohibition on the retroactive application of legislation, the protection of vested rights, access to justice, the right to privacy and the right to life.176 To illustrate, in a judgment on the proposed relaxation of abortion rules, the Trybunał Konstytucyjny held that: The binding Polish constitutional regulations do not contain any provision that would directly address the protection of life. Nevertheless, it does not mean that human life is not a value protected under the Constitution. The fundamental provision from which the constitutional protection of human life should be inferred is Article 1 of the constitutional provisions that have been upheld and, in particular, the democratic rule of law.177

The 1997 Polish constitution codified most of the grounds of review developed by the Trybunał Konstytucyjny in its case law. While the need to use unwritten principles has accordingly decreased, the Trybunał Konstytucyjny has indicated that it may still rely on the constitutional clause enshrining the principle of a democratic State under the rule of law to constitutionalise additional rights as and when appropriate.178 It has further been observed 174 See now Polish constitution, Art 188; Constitutional Tribunal Act, Art 2(1). The Trybunał Konstytucyjny is further expected to review the substance of contested norms for their constitutionality and examine whether they have been properly adopted, ie whether the procedure prescribed for their adoption has been followed and whether the norm in question was adopted by a body legally competent to do so (Constitutional Tribunal Act, Art 42). 175 The Trybunał Konstytucyjny applied a similar technique as far as the newly introduced principle of equality was concerned. 176 For a more elaborate discussion of this use of Art 1, see M Brzezinski and L Garlicki, ‘Judicial Review in Post-Communist Poland: The Emergence of a Rechtsstaat?’ (1995) 31 Stanford Journal of International Law 13, 35 ff; see also J Kurczewski, ‘The Rule of Law in Poland’ in J Prˇ ibánˇ and J Young (eds), The Rule of Law in Central Europe: The Reconstruction of Legality, Constitutionalism and Civil Society in Post-Communist Countries (Aldershot, Dartmouth, 1999). 177 Decision K 2/96. 178 According to its own description of the approach it takes to the performance of its constitutional functions on its website.

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that the Trybunał Konstytucyjny assumes the normative unity of the constitution and has accordingly so far not accepted the existence of supra-constitutional law.179 Duly ratified international agreements are at present a further source of constitutional reference standards. This has not always been the case, however. Under the 1952 constitution, the Polish tribunal accepted that it lacked the competence to scrutinise acts of parliament for conformity with international agreements,180 in line with general opinion in this respect: [T]he dominant political and legal doctrine rejects emphatically the claim that the rules of international law pertaining to civil and political rights are an integral part of the domestic legal order and as such, constitute the direct source of law.181

The Trybunał Konstytucyjny became more assertive in the wake of the 1989 constitutional revision. It began to attribute interpretative value to rules of international law and occasionally mentioned a breach of international law as an additional argument to support its findings of unconstitutionality.182 Today, the 1997 constitution provides that duly ratified treaties and acts adopted by international organisations prevail over conflicting parliamentary enactments.183 In addition, the Trybunał Konstytucyjny is expressly empowered to examine the compatibility of international agreements with the constitution and, if the former pass muster, to use these as benchmarks to assess the constitutionality of domestic legal norms.184 In other words, the Trybunał Konstytucyjny is able to directly measure Polish statutes and other rules of law against treaties, and in this respect mainly makes use of European Convention on Human Rights and the International Covenant on Civil and Political Rights.185 It has been observed, however, that the Polish tribunal still prefers to rely on rules of international law as an additional argument for holding that the norm under review is unconstitutional, rather than exclusively applying such rules to test the validity of domestic acts.186 The Trybunał Konstytucyjny further treats the case law of the European Court of Human Rights as a valuable source of inspiration in deciding on the meaning of the rights and freedoms guaranteed by the Polish constitution.187 On a different though related note, the Trybunał Konstytucyjny asserts that rules of EU law cannot serve as autonomous grounds for review and, consequently, that it will not find a Polish legal norm unconstitutional due to a perceived breach of Union law.188 It has however developed a 179 L Garlicki, ‘La justice constitutionnelle en Pologne’ in M Verdussen (ed), La justice constitutionnelle en Europe centrale (Brussels, Bruylant, 1997) 99. 180 See eg Decision K 8/91 of 7 January 1992; Decision K 10/95 of 17 October 1995; Decision K 4/95 of 23 October 1995. 181 See S Frankowski, ‘Procuracy and the Regular Courts as the Palladium of Individual Rights and Liberties: The Case of Poland’ (1986) 61 Tulane Law Review 1307, 1315. 182 See eg Decision K 8/91 of 7 January 1992; Decision K 17/92 of 29 September 1993; Decision U 12/92 of 20 April 1993. 183 Polish constitution, Art 91. See also Polish constitution, Art 87, which confirms that ratified international treaties are sources of binding law in the Polish legal order. 184 Polish constitution, Art 188; Constitutional Tribunal Act, Art 2(1)(1)–(3). 185 See eg Decision P 1/06 of 20 February 2007; Decision K 2/02 of 28 January 2003; Decision K 26/00 of 10 April 2002; Decision K 21/99 of 10 May 2000. 186 See eg Decision K 26/00 of 10 April 2002; Decision P 11/98 of 12 January 2002. In addition, it has been remarked that ‘in no circumstances does the Constitutional Tribunal base its reasoning solely on ECtHR judgments when declaring the unconstitutionality of Polish law provisions’: K Kowalik-Ba´nczyk, ‘Report on Poland’ in Martinico and Pollicino (eds), The National Judicial Treatment of the ECHR and EU Laws (n 142) 337. 187 See eg Decision K 17/05 of 20 March 2006; Decision P 8/04 of 18 October 2004. 188 See especially Decision P 37/05 of 19 December 2006; also Decision K 18/06 of 7 November 2007.

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constitutional principle of EU-friendly interpretation of legislation189 and, like the Czech Ústavní Soud, it accepts that it can rely on Union law and the judgments handed down by the Court of Justice in interpreting the Polish constitution.190 Finally, when assessing the constitutionality of sub-statutory legal norms, the sources just mentioned serve as grounds for review, as do acts of parliament, in line with the Polish hierarchy of norms.191

IX. SPAIN: TRIBUNAL CONSTITUCIONAL

Like most of its contemporaries in other countries, the Spanish Tribunal Constitucional can use the complete text of the 1978 constitution when performing the functions entrusted to it.192 In its early case law, the Tribunal Constitucional was eager to confirm the binding nature of the constitution and its role as a meaningful standard for assessing the validity of legal norms, to counteract the perception among some factions of the political class and the ordinary judiciary that the new constitution was simply a programmatic declaration: [T]he Constitution, far from being a mere catalogue of principles that are not immediately binding and not immediately to be complied with until they become the object of development by legal channels, is a juridical rule, the supreme rule of our legal code, and as such the citizens and all the public authorities, and so therefore all the Judges and Magistrates making up the judiciary, are subject to it.193

A noteworthy constitutional provision is Article 10(2), according to which the Spanish catalogue of fundamental rights must be interpreted in line with the Universal Declaration of Human Rights and other human rights treaties ratified by Spain. The Tribunal Constitucional regularly uses such international norms to buttress its own line of reasoning, while sometimes also deriving additional requirements or interpretative criteria from human rights treaties, which it incorporates into the constitutional provision protecting the relevant fundamental right.194 The European Convention on Human Rights and related decisions of the Strasbourg Court occupy a prominent position as interpretative aids in determining the meaning and scope of the constitutionally guaranteed rights and freedoms.195 However, akin 189 Decision K 18/04 of 11 May 2005, Accession Treaty. The Trybunał Konstytucyjny has indicated that this principle is not absolute: it cannot lead to an outcome that contradicts the explicit wording of the constitution; lead to a decision that is irreconcilable with the minimum guarantees provided by the constitution, notably as far as the protection of fundamental rights is concerned; or worsen an individual’s situation, in particular in the sphere of criminal liability. See also Decision P 1/05 of 27 April 2005, European Arrest Warrant. 190 See eg Decision K 18/06 of 7 November 2007; Decision P 30/06 of 9 July 2007. 191 Polish constitution, Art 188; Constitutional Tribunal Act, Art 2(1)(3). Note that the Trybunał Konstytucyjny shares jurisdiction with the ordinary courts as far as the review of sub-statutory acts is concerned, the only difference being that ordinary courts can decide to refrain from applying unconstitutional sub-statutory acts in the case at hand, whereas the constitutional tribunal can strike such acts down with erga omnes effect. 192 See also Organic Law 2/1979 on the Constitutional Tribunal, Art 1(1); sentencia 5/1981 of 13 February 1981 under FJ 6. 193 Sentencia 16/1982 of 28 April 1982 under FJ 1. 194 As regards the ECHR, see A Torres Pérez, ‘Report on Spain’ in Martinico and Pollicino (eds), The National Judicial Treatment of the ECHR and EU Laws (n 142) 461–62; as regards the International Covenant on Civil and Political Rights, see eg sentencia 42/1982 of 4 August 1982 under FJ 3 on the right to effective judicial protection. 195 See in particular sentencia 303/1993 of 25 October 1993 under FJ 8. See also A Queralt, La interpretación de los derechos: del tribunal de Estrasburgo al Tribunal Constitucional (Madrid, Centro de Estudios Politicos y Constitucionales, 2008).

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to the approach taken by the Belgian Cour constitutionnelle, the Spanish tribunal refrains from using international human rights treaties as an independent standard for testing the constitutionality of laws and other acts.196 As far as rules of Union law are concerned, the Tribunal Constitucional holds that these lack constitutional status and force and that it lacks the competence to check the compatibility of Spanish legal norms with EU law; this assessment is considered to be the responsibility of the regular courts.197 Yet, it recognises that provisions of European law that guarantee fundamental rights do play a role in the exercise of its own mandate: such provisions – including the Charter of Fundamental Rights of the EU – are considered to be among the sources that are declared by Article 10(2) to have interpretative value in deciding on the meaning and scope of rights protected under the Spanish constitution.198 Besides the constitution, another important source of standards for review is the socalled bloque de constitucionalidad.199 This concept was coined by the Tribunal Constitutional in one of its first judgments200 and denotes, generally speaking, the legal norms that are recognised by the 1978 constitution as fleshing out and complementing the constitutional provisions.201 These legal norms thus have a constitutional role, in that the Tribunal Constitucional may use them as benchmarks in establishing whether ordinary laws and other governmental acts pass muster. At the same time, the legal norms that make up the bloque de constitucionalidad are not of constitutional rank and can themselves be measured against the constitution. The main components of the bloque de constitucionalidad are the legal instruments that operationalise the vertical division of competences between the State and the autonomous communities, given that the constitution itself only contains the general principles that must be respected and the procedures that should be followed in deciding on the allocation of powers between the two levels of government.202 These legal instruments comprise the Statutes of Autonomy of the autonomous communities203 and the laws mentioned in Article 150 of the constitution, namely: framework laws that grant the communities the competence to exercise the State’s legislative powers within a framework determined by the State; laws that transfer State powers to the communities; and harmonisation laws that synchronise the provisions adopted by the autonomous communities when such is necessary in the general interest.204 The bloque de constitucionalidad is further made up of organic Sentencia 64/1991 of 24 April 1991 under FJ 4a; sentencia 214/1991 of 11 November 1991 under FJ 1. Sentencia 28/1991 of 14 February 1991 under FJ 4; declaración no 1/2004 of 13 December 2003. 198 ibid. See also, particularly as far as the EU Charter of Fundamental Rights is concerned, sentencia 292/2000 of 30 November 2000 under FJ 8; sentencia 53/2002 of 27 February 2002 under FJ 3; declaración 1/2004 of 13 December 2004 under FJ 6. 199 While the term derives from the French constitutional discourse, notably the work of the eminent scholar Louis Favoreu – which has been translated into Spanish – the Spanish bloque de constitucionalidad has a different meaning from the French bloc de constitutionalité: see L Favoreu and F Rubio Llorente, El bloque de la constitucionalidad: simposium franco-español de derecho constitucional (Madrid, Civitas, 1991). 200 Sentencia 10/1982 of 23 March 1982 under FJ 2. Most scholars consider that Organic Law 2/1979 on the Constitutional Tribunal, Art 28 offers the legal basis for the bloque de constitucionalidad. 201 It should be noted that there is no agreement in the Spanish constitutional discourse as to the precise contours of the bloque de constitucionalidad: see eg P Requejo Rodriguez, Bloque constitucional y bloque de la constitucionalidad (Oviedo, Universidad de Oviedo, 1997). 202 Spanish constitution, Arts 143–58. These constitutional provisions are relatively open-ended character primarily because there was no political consensus regarding the territorial organisation of the Spanish State among the constitutional framers. 203 Spanish constitution, Art 147. 204 The competence granted by Art 150 of the Spanish constitution has not been fully exercised and not all of the laws contemplated in that provision have been enacted. 196 197

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laws and this category encompasses, amongst others, Law 6/1985 on judicial power and Law 8/1980 on the financing of the autonomous communities, both of which are of considerable importance in legal practice.205

X. THE NETHERLANDS: RAAD VAN STATE

As shown in previous chapters, in the Netherlands it is ultimately for Parliament to uphold the Dutch constitution and ensure that legislation does not fall foul of constitutional rules and principles. In discharging this responsibility, it is assisted by the Council of State, which must deliver advisory opinions on all legislative bills206 and bills approving international treaties before these are debated in Parliament.207 What follows immediately below is an inquiry into the standards that the Dutch Council of State may use for assessing the compatibility of the bills presented to it for advice with higher legal norms.208 The Council of State has adopted a broad definition of the concept ‘constitutional law’ and accepts that there are a variety of sources from which it may derive standards for assessing the legal validity of bills.209 These include, first, the foundational texts of the Dutch legal order, namely the constitution and the 1954 Charter of the Kingdom of the Netherlands (as amended), which regulates the relationship between the Netherlands and the islands of Aruba, Curacao and St Maarten. The Council of State may further use unwritten principles of constitutional law. These comprise general principles of law based on the requirements of the rule of law and democracy, such as the principles of legality, legal certainty and that of access to an independent and impartial judge.210 Also included are customary rules, given that several constitutional rules – notably those governing the political process, like the rule of ministerial accountability to Parliament211 – are not set out in the foundational documents just mentioned.212

205 Known in Spanish as the ley orgánica del poder judicial (LOPJ) and the ley orgánica de financiación de las Comunidades Autónomas (LOFCA). Organic laws are also required for the development of fundamental rights and for the organisation of the electoral system (Spanish constitution, Art 81). 206 This includes both government bills as well as private members’ bills. 207 Council of State Act, Arts 17(1)(a) and (c) and 18. 208 As explained in ch 1, section II-A, the framework for assessment of bills used by the Council of State is made up of three components: an analysis of policy aspects; a check regarding the technical quality of proposals; and an examination of their legal quality, which includes the question of their compatibility with higher law. It is the latter dimension that is of interest here. 209 See eg the 2010 Annual Report of the Council of State, 47 and 49; the 2009 Annual Report of the Council of State, 53 ff; J de Poorter and H van Roosmalen, Rol en betekenis van de grondwet: constitutionele toetsing in relatie tot de Raad van State (The Hague, Raad van State, 2010) 139. More generally, the Dutch constitutional discourse distinguishes between the term ‘grondwet’, which is taken to refer to the document with the title ‘constitution’, and the concept of ‘constitutie’, which denotes all the principles and norms that are considered to have a constitutional quality. For an elaborate discussion see G van der Tang, Grondwetsbegrip en grondwetsidee (Deventer, Gouda Quint, 1998). The Council of State’s broad definition is in keeping with the notion of constitutie. 210 See in this context the Report commissioned by the Council of State in 2011 on the identification of the legal meaning and scope of the ‘rule of law’ concept: W Voermans and J Gerards, Juridische betekenis en reikwijdte van het begrip ‘rechtsstaat’ in de legisprudentie & jurisprudentie van de Raad van State (The Hague, Council of State, 2011). 211 This rule was relied on in eg the advisory opinion of the Council of State on the proposal for a new act on parliamentary inquiries: advisory opinion of 6 April 2006, Kamerstukken II 2005/2006, 30 415 no 4. 212 On unwritten constitutional law more generally see C van der Pot, Handboek van het Nederlandse staatsrecht (D Elzinga and R de Lange eds), 15th edn (Deventer, Kluwer, 2006) 187 ff and the sources mentioned therein.

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The notion of ‘constitutional law’ is further taken to encompass certain provisions of international and European law and extends to the interpretation given to such provisions in associated international and European case law.213 The fact that non-national norms can be used as autonomous standards for assessing the permissibility of bills can be explained with reference to the traditional openness of the Dutch constitution to the international legal order: the Netherlands is a monist system and directly effective provisions of inter national law prevail over all conflicting national legal rules, the Dutch constitution inclu ded.214 In practice, the Council of State often relies on human rights treaties, especially the European Convention on Human Rights, while the Charter of Fundamental Rights of the EU also progressively features in its advisory opinions. It should be pointed out in this regard that certain rights and freedoms guaranteed in those legal instruments are not included in the Dutch constitutional catalogue of rights, which only serves to enhance their value as standards for assessment.215 Turning to the Dutch judiciary, we have seen that the constitution explicitly forbids it from setting aside acts of parliament on constitutional grounds.216 In addition, case law has clarified that this prohibition is interpreted prevent an examination of the conformity of statutes with the Charter of the Kingdom of the Netherlands and with unwritten constitutional principles.217 Dutch courts do however have the power to review the compatibility of primary legislation with provisions of international and European law,218 which may be considered as part of the Dutch constitution broadly defined.219 The European Convention on Human Rights is regarded as a particularly important standard in this regard.220 When asked to assess the legal validity of sub-statutory acts, none of the limitations just mentioned apply and the Dutch courts can accordingly review such acts in light of the constitution, the Charter and unwritten principles as well as international and European law. 213 This includes for instance the European Court of Human Rights, but also judgments of Dutch courts applying the International Covenant on Civil and Political Rights. 214 Dutch constitution, Arts 93 and 94. 215 This is the case as regards the right to a fair trial and the right to life. The question whether the Dutch catalogue of fundamental rights should be expanded to include rights currently only found in international and European treaties was considered by the 2009 Royal Commission for the Revision of the Constitution and the preparatory studies by R de Lange, B Leeuw and P Mevis, Grondwet en het recht op een eerlijk proces: algemene verkenning en uitwerking voor het strafrecht (Alphen aan de Rijn, Kluwer, 2009); J Peters et al, Het recht op leven in de Nederlandse grondwet: een verkennend onderzoek (Alphen aan de Rijn, Kluwer, 2009); T Barkhuysen, M van Emmerik and J Gerards, De toegang tot de rechter en een eerlijk proces in de grondwet? (Alphen aan de Rijn, Kluwer, 2009). 216 Dutch constitution, Art 120. 217 See ch 2, section IV-A. Pursuant to the ruling of the Dutch supreme court in the Harmonisation Act case (HR, 14 April 1989, AB 1989, 207), it does seem possible for Dutch courts to declare that a statute infringes higher law – such as an unwritten constitutional principle – although such a finding would not produce any legally binding consequences. To this limited extent, then, courts would seem to be able to use the constitution and other sources of constitutional law when considering the legitimacy of acts of parliament. 218 Dutch constitution, Arts 93–94. As regards EU law, the dominant approach is that EU law has direct effect within the Dutch legal order with reference to the rulings of the Court of Justice developing the doctrines of supremacy and direct effect and that the constitutional provisions are irrelevant in this context. See Dutch Supreme Court, Rusttijden, 2 November 2004, LJN AR1797. There is however some debate on this question: see eg M van Emmerik, ‘De Nederlandse grondwet in een veellagige rechtsorde’ (2008) 4 Rechtsgeleerd magazine themis 145; E Alkema, ‘Annotation of Supreme Court 2 November 2004’ [2005] Nederlands Juristenblad 80; L Besselink et al, De Nederlandse grondwet en de Europese Unie (Groningen, Europa Law Publishing, 2002) 28–39. 219 See eg C Kortmann and P Bovend’Eert, Dutch Constitutional Law (The Hague, Kluwer, 2000) 90. Monica Claes speaks of the Dutch constitution as a ‘composite constitution’ in this respect, in ‘De Raad van State in het proces van constitutionele interpretatie en constitutionele toetsing: enkele rechtsvergelijkende beschouwingen’ in H Tjeenk Willink et al (eds), De Raad van State in perspectief (The Hague, Boom Juridische Uitgevers, 2011). 220 This has earned the treaty the epithet of the Dutch de facto or substitute constitution.

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XI. UNITED KINGDOM: HOUSE OF LORDS CONSTITUTION COMMITTEE

In the United Kingdom, the House of Lords Constitution Committee acts as one of the principal guardians of constitutional principles and rules.221 This Committee is tasked with examining all public bills introduced to the House of Lords for matters of constitutional significance and keeping the operation of the constitution under review. This section explores the standards that it uses in discharging these responsibilities. As mentioned in chapter two, a distinctive feature of UK constitutional law is that there is no codified constitution.222 That is to say, there is no single, written and entrenched document that bears this title or a consensus on a set of laws that are considered as ‘constitutional’ or ‘fundamental’. Moreover, a number of constitutional doctrines and principles are not set out in any legal text, but are a matter of constitutional practice. Against this backdrop, it is unsurprising that the Constitution Committee devoted its first report to defining its terms of reference.223 It adopted the following definition of the UK constitution, which informs its work on scrutinising bills for their constitutionality and in conducting investigative inquiries into constitutional matters: The set of laws, rules and practices that create the basic institutions of the state, and its component and related parts, and stipulate the powers of those institutions and the relationship between the different institutions and between those institutions and the individual.224

The Constitution Committee also identified five key tenets of the UK constitution: the sovereignty of the Crown in Parliament; the rule of law, encompassing the rights of the individual; Union state; representative government; and membership of the Commonwealth, the European Union and other international organisations.225 The Committee has however refrained from pinpointing the ‘laws, rules and practices’ that express these core principles, and, as such, also left open the precise ambit of each.226

See ch 1, section III-B(ii). See ch 2, section IV-B. There has been support in some quarters for the adoption of a written constitution, but such a development seems unlikely to happen in the near future. For a succinct overview see P Leyland, The Constitution of the United Kingdom: A Contextual Analysis, Constitutional Systems of the World (Oxford, Hart Publishing, 2007) ch 9. 223 Constitution Committee, Reviewing the Constitution: Terms of Reference and Method of Working (HL 2001– 02, 11). 224 ibid, para 20. 225 ibid, para 21. These tenets were further fleshed out in various reports drawn up by the Committee; a helpful overview of the more detailed principles thus identified can be found in D Oliver, ‘The United Kingdom’ in Oliver and Fusaro (eds), How Constitutions Change (n 151) 331–32. The Constitution Committee has also indicated that it intends to avoid as far as possible duplicating the work of other parliamentary committees, notably the Joint Select Committee on Human Rights, the EU Select Committee of the House of Lords and the European Scrutiny Committee of the House of Commons. 226 Although this definition does not explicitly mention case law as a potentially relevant source, it is clear that the UK courts can, and do, hand down judgments of constitutional significance – notwithstanding their inability to strike down acts of parliament. These may in particular include decisions in which the courts interpret statutes such as the Human Rights Act 1998, the European Communities Act 1972 or the devolution acts. Think for instance of the House of Lords’ decision in R v Secretary of State for Transport, ex parte Factortame (No 2) [1991] 1 All ER 70, concerning the doctrine of parliamentary sovereignty and EU law, or the judgment in R (Jackson) v Attorney-General [2005] UKHL 55 regarding the Parliament Acts 1911 and 1949. Such judgments may also usefully be considered by the Constitution Committee when fleshing out its reference standards. 221 222

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As far as statutes are concerned, Lord Justice Laws suggested in Thoburn v Sunderland City Council227 that it is possible to distinguish between ‘normal’ acts of parliament and ‘constitutional’ acts of parliament: We should recognise a hierarchy of Acts of Parliament: as it were ‘ordinary’ statutes and ‘constitutional’ statutes. The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminished the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b). The special status of constitutional statutes follows the special status of constitutional rights.228

He also listed several statutes that he considered belong to the category of ‘constitutional’ acts of parliament: Magna Carta, the Bill of Rights 1689, the Act of Union (combining the Westminster Parliament with the Scottish Parliament), the Reform Acts which distributed and enlarged the franchise, the Human Rights 1998 (incorporating the bulk of the ECHR into UK law), the Scotland Act 1998 and the Government of Wales Act 1998 (transferring certain powers from the Westminster Parliament to the devolved authorities), and the European Communities Act 1972.229 The test applied by Laws LJ to decide which acts fall within the category of constitutional statutes resembles one of the criteria included in the definition provided by the Constitution Committee, and the examples he gives of such constitutional statutes all deal with the five tenets of the UK constitution identified by the committee. Other acts that could arguably be added to this list are the Parliament Acts of 1911 and 1949 (curtailing the powers of the House of Lords as regards legislation), the Act of Union with Ireland of 1800, the Northern Ireland Act 1998 (setting out the principles of devolution in relation to Northern Ireland) and the European Union Act 2011 (stipulating that a referendum must be held before the UK can transfer more powers to the EU). The ‘rules and practices’ mentioned by the Constitution Committee as a part of the UK constitution and, as such, a source of reference standards for the performance of its duties, comprise the standing orders of the House of Commons and the House of Lords, the royal prerogative and constitutional conventions.230 The standing orders regulate the functioning of Parliament in a great variety of matters, ranging from its composition to ministerial accountability to the successive stages of the legislative process.231 The royal prerogative denotes the residual powers and functions considered as belonging to the monarch, although they are today mostly exercised by the prime minister and other ministers. The royal prerogative covers, amongst other things, making and ratifying international treaties, deciding on the employment of the armed forces and the appointment of ministers. Lastly, constitutional conventions ‘consist of maxims or practices which, though they regulate the ordinary conduct of the Crown, of ministers, and of other persons under the constitution, are not in strictness laws at all’.232 Matters governed by constitutional conventions include Thoburn v Sunderland City Council [2002] EWHC 195 (Admin). Laws LJ also provocatively suggested that ‘constitutional’ statutes could not be impliedly repealed by Parliament. His views have so far not been endorsed by other judges. 229 ibid, 62. 230 On the sources of the UK constitution see also Leyland, The Constitution of the United Kingdom (n 222) ch 2. 231 See the standing orders of the House of Commons 2011 and the companion to the standing orders and guide to the proceedings of the House of Lords 2010. 232 A Dicey, An Introduction to the Study of the Law of the Constitution, 10th edn (Basingstoke, Macmillan, 1959), 24. See also eg G Marshall, ‘What are Constitutional Conventions?’ (1985) 38 Parliamentary Affairs 33. 227 228

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the giving of royal assent to a bill after it has been passed by Parliament, the appointment of the prime minister and the relationship of accountability between the executive and Parliament.

XII. FINLAND: PERUSTUSLAKIVALIOKUNTA

Finland also relies primarily on a non-judicial body to uphold the constitution and ensure that its rules and principles are respected by the legislature. More particularly, a central role is played in this regard by the intra-parliamentary Constitutional Law Committee (Perustuslakivaliokunta).233 As we saw in chapter one, this committee is responsible for reviewing bills for their constitutionality as well as for their compatibility with treaties.234 For reasons that will become clear, in practice, there is no strict distinction between constitutionality control and an assessment of bills in the light of international agreements. Since 1 March 2000, the Perustuslakivaliokunta mainly uses the 2000 Constitution Act as the standard for assessing the constitutionality of bills. Its first section proclaims that ‘The Constitution of Finland is established in this constitutional Act’. Before the entry into force of this act, Finland had a composite constitution, comprising four basic laws that had constitutional status and served as grounds for review, namely: the 1919 Constitution Act, the 1928 Parliament Act, the 1922 Act on the High Court of Impeachment and the 1922 Ministerial Responsibility Act.235 As an aside, none of these acts explicitly contemplated the establishment of the Perustuslakivaliokunta or set out its role and reference standards to be applied, with the upshot that its actual operation was chiefly a matter of constitutional custom.236 Returning to the 2000 Constitution Act, it ought to be pointed out that the fundamental rights contained therein are closely modelled after the European Convention on Human Rights, and the travaux préparatoires237 prescribe that Finnish constitutional rights and freedoms should be interpreted in accordance with their international equivalents: Attaining the basic right reform meant a substantive approximation of constitutional basic rights and human rights provisions included in international human rights conventions. International human rights also have an interpretative impact when applying the basic right provisions.238

The Constitutional Law Committee has heeded this interpretative command and has stated that it considers international human rights provisions as setting the minimum standard for human rights protection under the Finnish constitution, thereby blurring somewhat This committee is discussed in more detail in ch 1, section III-B(i). Finnish constitution, s 74. Finland adopts a dualist approach to the status of international law within the domestic legal order (Finnish constitution, s 95). 235 This is the shorthand reference for the act: its official name was ‘Act on the right of Parliament to inspect the lawfulness of the official acts of the members of the council of state, the chancellor of justice and the parliamentary ombudsman’. 236 After 1995, the legal basis for the functioning of the Constitutional Law Committee was found in the Parliamentary Procedure Act, s 46. 237 In Finland, travaux préparatoires play an important role in the interpretation of constitutional and legislative provisions, both for the Constitutional Law Committee and for the courts. Regarding the 2000 Constitution Act, the main preparatory works are Government Bill 1/1998 and Report 1997:13 of the special committee entrusted with drafting a new constitution. (my translation). 238 Government Bill 1/998 under 6. See also J Husa, The Constitution of Finland: A Contextual Analysis, Constitutional Systems of the World (Oxford, Hart Publishing, 2011) 170 ff. 233 234

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the distinction between review of bills on constitutional grounds and a check of their conformity with internationally protected human rights.239 A further ground for review is provided by the Act on the autonomy of the Åland islands, which fleshes out the constitutional right to self-government that these islands enjoy.240 Although this act is not formally of constitutional rank, it can only be changed using the procedure for constitutional amendment and the Åland islands must give their consent,241 giving the Autonomy Act a special position in the Finnish constitutional system. In terms of the institutional balance between the main organs of the Finnish State, the 2000 Constitution Act contains only some of the pertinent constitutional rules and principles. For these matters, constitutional customs are an additional important source of constitutional law and ground of review.242 As we have seen, the Finnish chancellor of justice is competent to assess the constitutionality of bills, and the Finnish courts may examine the constitutional conformity of acts of parliament, although their role in ensuring respect for the constitution is auxiliary to that of the Perustuslakivaliokunta.243 This can be gleaned, for instance, from the fact that they attribute significant interpretative value to reports adopted by the latter when verifying the constitutionality of bills or legislation, in view of the status of such reports as authoritative pronouncements on the meaning of the Constitution Act.244

XIII. EUROPEAN UNION: COURT OF JUSTICE

Turning from the national legal orders to that of the European Union, this section inquires into the legal rules and principles that the Court of Justice may use as a standard for assessing the validity of European legislative measures.245 That is to say, it focuses on the Court in the performance of its constitutional role as a check on the Union legislature when deciding annulment actions challenging EU legislative acts or when answering preliminary questions raised by national courts concerning the legitimacy of such acts.246 Constitutional Law Committee Report 25/1994. Finnish constitution, ss 75 and 120. 241 ibid, s 75. 242 Husa, The Constitution of Finland (n 238) 32. 243 On the role of the chancellor, see ch 1, section II-B; on the role of the Finnish courts, see ch 2, section III-C(i). 244 The travaux préparatoires for s 106 of the Finnish constitution, according to which all Finnish courts may disregard acts of parliament when deciding specific cases, specify that if the Constitutional Law Committee has already examined the pertinent legislative provisions and found that they pass muster, the courts must in principle not arrive at a different conclusion: HE (Government Bill) 1/1998; see also Constitutional Law Committee Report 10/1998. 245 These rules and principles can also be applied by the Court of Justice as grounds of review in the performance of its other functions, notably arbitrating conflicts between the EU and its Member States regarding the vertical balance of powers, enforcing the horizontal allocation of duties and responsibilities among the different Union institutions, and ensuring the validity of non-legislative acts adopted by the Union executive. In such cases, if the measure referred for review is a national or non-legislative European act, then the Court can also examine its compatibility with secondary EU law (ie, regulations, directives, decisions adopted on the basis of the EU Treaties). 246 This dimension of the Court’s constitutional role, including the procedural avenues that enable it to ensure that the Union legislature does not overstep its boundaries, is explored in more detail in ch 3, section IV-B. That section also explains that the Court of Justice not only performs a constitutional role, but has also been assigned additional tasks that at national level are typically regarded as ‘non-constitutional’ in nature, including in particular ensuring the uniformity of Union law. The European Treaties moreover do not draw a bright line between the 239 240

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To start with, the provisions laid down in the constitutive European Treaties (as amended) may serve as grounds for review of European legislative instruments.247 As noted earlier, the Court of Justice has qualified these treaties as the Union’s ‘constitutional charter’, rather than as conventional international agreements. It did so in particularly clear terms in its Opinion 1/91 on the EEA Agreement: 20. The EEA is to be established on the basis of an international treaty which, essentially, merely creates rights and obligations as between the Contracting Parties and provides for no transfer of sovereign rights to the inter-governmental institutions which it sets up. 21. In contrast, the EEC Treaty [precursor to the TFEU], albeit concluded in the form of an international agreement, none the less constitutes the constitutional charter of a Community based on the rule of law. As the Court of Justice has consistently held, the Community treaties established a new legal order for the benefit of which the States have limited their sovereign rights, in ever wider fields, and the subjects of which comprise not only Member States but also their nationals. The essential characteristics of the Community legal order which has thus been established are in particular its primacy over the law of the Member States and the direct effect of a whole series of provisions which are applicable to their nationals and to the Member States themselves.248

The Court of Justice can use the vast majority of treaty provisions as reference standards.249 Following the entry into force of the Lisbon Treaty, the main limitation concerns the articles relating to the common foreign and security policy (CFSP).250 These can only be relied on by the Court, first, to police the division between the CFSP and the Union’s competences in all other policy fields, and, second, to review the legality of Council decisions imposing restrictive measures on natural or legal persons, typically as part of the EU’s antiterrorism policy.251 It should further be noted that since the European treaties are amended relatively frequently,252 so too are the contours of the written rules and principles that may be used as grounds for review. Court’s ‘constitutional’ and other functions: for instance, cases that involve constitutional issues of the kind familiar to national legal orders do not find their way to the Court by means of particular procedural avenues to the exclusion of others. 247 This is explicitly mentioned in Art 263 TFEU, which regulates the action for annulment, but the Court of Justice has held that the grounds mentioned in that provision are also relevant in the context of the preliminary reference procedure. 248 Opinion 1/91 on the draft agreement relating to the creation of the European Economic Area [1991] ECR I-6079, internal citations omitted. See also Opinion 1/76 Laying-up Fund [1977] ECR 741, para 12; Case 294/83 Parti écologiste ‘Les Verts’ v European Parliament [1986] ECR 1339, para 23; Case C-15/00 Commission v European Investment Bank [2003] ECR I-7281, para 75; Joined Cases C-402/05P and C-415/05P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351, para 281. See further K Lenaerts, ‘The Basic Constitutional Charter of a Community Based on the Rule of Law’ in M Poiares Maduro and L Azoulai (eds), The Past and Future of EU Law (Oxford, Hart Publishing, 2010); E Stein, ‘Lawyers, Judges and the Making of a Transnational Constitution’ (1981) 75 American Journal of International Law 1. 249 It should be noted that the European Treaties, as the Union’s constitution, include provisions that – at the national level – would not be included in the constitution but, rather, would be found in ordinary legislation. A broader understanding of the notion of ‘constitution’ at the European level concomitantly leads to a broader understanding of the scope of the Court’s constitutional jurisdiction. 250 In addition, in the area of freedom, security and justice, the Court of Justice is prevented from checking the validity or proportionality of operations carried out by the police or national law enforcement services or actions taken by the Member States to maintain law and order and safeguard internal security: Art 276 TFEU. 251 ibid, Art 275. 252 See B De Witte, ‘The Closest Thing to a Constitutional Conversation in Europe: The Semi-Permanent Treaty Revision Process’ in P Beaumont, C Lyons and N Walker (eds), Convergence and Divergence in European Public Law (Oxford, Hart Publishing, 2002).

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In addition, the Court of Justice has affirmed that it may use unwritten general principles of law when testing the legitimacy of Union legislative acts.253 This judicial broadening of the set of reference standards was facilitated by the terms in which its mandate is cast. Article 19(1) TEU charges the Court of Justice to ‘ensure that in the interpretation and application of the Treaties the law is observed’, and Article 263 TFEU, which governs the action for annulment procedure, states as one of the grounds for review ‘infringement of the Treaties or any rule of law relating to their application’.254 The Court of Justice established early on that fundamental rights form part of the general principles of law, in what was a development of great significance, given that the treaties as adopted in the 1950s included only a few provisions that gave expression to such rights.255 As such, the situation at the European level resembled that in France following the adoption of the 1958 constitution, and the approach of the Court of Justice in fashioning an unwritten catalogue of fundamental rights can be compared to that of the French Conseil constitutionnel, which in its famous Freedom of Association ruling accepted that it could review laws against substantive constitutional principles, notably fundamental rights, despite the absence of an extensive catalogue of such rights in the main text of the 1958 constitution.256 The first seminal European case that must be mentioned in this regard is Internationale Handelsgesellschaft,257 where the Court of Justice declined to recognise fundamental rights and liberties protected under national constitutional law as yardsticks for controlling the validity of measures adopted by the European institutions, but confirmed the existence of analogous guarantees within the European legal system:258 3. Recourse to the legal rules or concepts of national law in order to judge the validity of measures adopted by the institutions of the [Union] would have an adverse effect on the uniformity and efficacy of [Union] law. The validity of such measures can only be judged in the light of [Union] law. In fact, the law stemming from the treaty, an independent source of law, cannot because of its 253 See eg Case C-101/08 Audiolux SA v Groupe Bruxelles Lambert SA (GBL) [2009] ECR I-9823, para 63, where the Court stated in unequivocal terms that the ‘general principles of [Union] law have constitutional status’. 254 Emphasis added. See also the explicit recognition of ‘the law’ as a supplementary source of reference standards in Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur SA v Federal Republic of Germany and R v Secretary of State for Transport, ex parte Factortame Ltd [1996] ECR I-1029, para 27. 255 On this, see eg M Dauses, ‘The Protection of Fundamental Rights in the Community Legal Order’ (1985) 10 EL Rev 399; P Pescatore, ‘The Context and Significance of Fundamental Rights in the Law of the European Communities’ (1981) 2 Human Rights Journal 295. For an examination of early attempts to define a role for the EU in the field of fundamental rights protection, see G de Búrca, ‘The Evolution of EU Fundamental Rights Law’ in P Craig and G de Búrca (eds), The Evolution of EU Law, 2nd edn (Oxford, Oxford University Press, 2011). 256 See section V of this chapter. According to B De Witte, ‘Interpreting the EC Treaty like a Constitution: The Role of the European Court of Justice in Comparative Perspective’ in R Bakker, AW Heringa and F Stroink (eds), Judicial Control: Comparative Essays on Judicial Review (Antwerp, Maklu, 1995), the European doctrine of general principles of law and its extension to fundamental rights is not only ‘closely modelled on’, but even ‘probably inspired’ by, the developments in France. 257 Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125, at 3–4, building on the earlier judgment in Case 29/69 Erich Stauder v City of Ulm [1969] ECR 419, para 7. These two cases marked a change in approach on the part of the Court of Justice, which had refused to engage with (national) fundamental rights arguments in its earlier case law, notably Case 1/58 Stork & Cie v High Authority of the European Coal and Steel Community [1959] ECR (English Special Edition) 17 and Case 13/60 Geitling, Ruhrkohlen-Verkaufsgesellschaft mbH v High Authority of the European Coal and Steel Community [1962] ECR (English Special Edition) 83 258 The motivation for the Court of Justice to take this step is usually explained with reference to the critical attitude of the German and Italian constitutional courts to the doctrine of the supremacy of European law, with these courts asserting competence to ensure respect for national fundamental rights in their territory, which would be accorded precedence over conflicting EU acts. The relevant case law of these two courts and the subsequent mellowing of their attitude is discussed in Claes, The National Courts’ Mandate in the European Constitution (n 167) 596–602 and 620–24; see also ch 7, section V-B.

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very nature be overridden by rules of national law, however framed, without being deprived of its character as [Union] law and without the legal basis of the [Union] itself being called in question. Therefore the validity of a [Union] measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the Constitution of that state or the principles of a national constitutional structure. 4. However, an examination should be made as to whether or not any analogous guarantee inherent in [Union] law has been disregarded. In fact, respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice.

In the later case of Nold v Commission,259 the Court of Justice reiterated that the general principles of European law have an autonomous character. As such, the Court is largely unencumbered in deciding which principles and rights will be accepted as general principles of European law and may hence serve as grounds for review. At the same time, it has recognised that common national constitutional traditions and international human rights treaties are two important sources of inspiration when it comes to the identification and interpretation of the fundamental rights and freedoms protected under European law: [F]undamental rights form an integral part of the general principles of law, the observance of which [the Court] ensures. In safeguarding these rights, the Court is bound to draw inspiration from constitutional traditions common to the Member States, and it cannot therefore uphold measures which are incompatible with fundamental rights recognised and protected by the Constitutions of those states. Similarly, international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of [Union] law.260

When it comes to the national constitutional traditions, the Court of Justice usually contents itself with the observation that a particular right can be distilled from these traditions or is also recognised as deserving of protecting under national constitutional law without – at least publicly – conducting a systematic and in-depth comparison of relevant national constitutional provisions.261 Further, in asserting that a European legal principle is informed by, or derived from, the common constitutional traditions, the Court of Justice refrains from relying on a mathematical approach or adopting the national standard that offers the highest level of protection. As explained by its president: [I]t is not the Court’s duty to discern, and, as it were, mechanically transpose into the [Union] legal order, the lowest common denominator of constitutional traditions common to the Member States. The Court draws inspiration from those traditions in order to determine the level of protection appropriate within the [Union] legal order and for that very reason appreciates them more freely. . . . It suffices to indicate at this point that, if the Court had determined to adopt the common denominator of the constitutional traditions common to all Member States, it could not have recognised and protected within the [Union] legal order the right to pursue a

Case 4/73 Nold, Kohlen- und Baustoffgroßhandlung v Commission [1974] ECR 491. ibid, 13. 261 One notable exception is Case 44/79 Liselotte Hauer v Land Rheinland-Pfalz [1979] ECR 3727, para 20, but even in this case the Court confined itself to listing the constitutional provisions of three Member States (out of a total of then nine Member States). While Advocates General are more inclined to engage in constitutional comparisons, their analysis is never truly comprehensive either: their opinions often consider a number of legal systems and hardly ever examine these in great detail. For an overview of the practice of Advocates General, the Court and the critical reception in the literature of the lack of (comprehensive) comparative examinations of national constitutional provisions, see X Groussot, General Principles of Community Law (Groningen, Europa Law Publishing, 2006) 32 ff. 259 260

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trade or business, which, I understand, is recognised and protected only by the German Constitution.262

As regards the various international human rights treaties that may provide guidelines for the designation of European fundamental rights, the European Convention on Human Rights is singled out as having ‘special significance’,263 although the Court has occasionally also drawn on other European and UN conventions in its case law.264 The Member States, as Herren der Verträge, explicitly endorsed the Court of Justice’s approach to using unwritten fundamental rights as a ground for review in the Treaty of Maastricht.265 At present, the relevant provision is Article 6(3) TEU, according to which ‘Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law’.266 The Lisbon Treaty is a veritable watershed as far as the use of fundamental rights as grounds of review is concerned.267 Article 6(1) TEU accords the Charter of Fundamental Rights of the European Union – which had been proclaimed in 2000 but was initially not legally binding268 – the ‘same legal value as the Treaties’.269 The upshot is that the Union today has both a comprehensive and modern written Bill of Rights and a well-developed unwritten corpus of fundamental rights that forms part of the body of general principles of 262 Working document 19 of Working Group II of the European Convention, ‘Incorporation of the Charter/ Accession to the ECHR’, hearing of Judge Vassilios Skouris, Brussels, 27 September 2002. 263 See eg Case C-260/89 Elliniki Radiophonia Tileorassi AE v Dimotiki Etairia Pliroforissis [1991] ECR I-2925, para 41. 264 For an overview, including references to the most salient cases, see P Craig and G de Búrca, EU Law: Text, Cases, and Materials, 5th edn (Oxford, Oxford University Press, 2011) 367–69. 265 Art F(2), which became Art 6(3) EU Treaty following the renumbering carried out by the Treaty of Amsterdam. The endorsement by the framers of the treaties of the Court’s case law resembles the approach adopted by the Belgian constitutional legislature, which in 2003 amended the constitution to broaden the grounds of review that the Cour constitutionnelle could use, in response to the latter’s creative use of the constitutional principles of equality and non-discrimination, as explained in section II of this chapter. 266 In Case C-571/10 Servet Kamberaj v Istituto per l’Edilizia sociale della Provincia autonoma di Bolzano (IPES) [2012] ECR I-0000, the Court clarified that this reference to the ECHR does not entail that the doctrines of direct effect and supremacy developed to govern the relationship between EU law and the legal orders of the Member States are similarly applicable to the relationship between the ECHR and national law: ‘Article 6(3) TEU does not govern the relationship between the ECHR and the legal systems of the Member States and nor does it lay down the consequences to be drawn by a national court in case of conflict between the rights guaranteed by that convention and a provision of national law’ (para 62). 267 There is a burgeoning literature on fundamental rights and the Lisbon Treaty, including on the intended accession of the EU to the European Convention on Human Rights. Amongst others, see S Iglesias Sánchez, ‘The Court and the Charter: The Impact of the Entry into Force of the Lisbon Treaty on the ECJ’s Approach to Fundamental Rights’ (2012) 49 CML Rev 1565; R White, ‘A New Era for Human Rights in the European Union?’ (2011) 30 Yearbook of European Law 100; S Douglas-Scott, ‘The European Union and Human Rights after the Treaty of Lisbon’ (2011) 11 Human Rights Law Review 645; R Schütze, ‘Three “Bills of Rights” for the European Union’ (2011) 30 Yearbook of European Law 131; on accession, see eg T Lock, ‘EU Accession to the ECHR: Implications for Judicial Review in Strasbourg’ (2010) 35 EL Rev 777; J-P Jacqué, ‘The Accession of the European Union to the European Convention on Human Rights and Fundamental Freedoms’ (2011) 48 CML Rev 995. Here only aspects of the Lisbon Treaty relevant for the identification of standards of review will be considered. 268 See Case C-540/03 European Parliament v Council (‘Family Reunification’) [2006] ECR I-5769, para 38. An overview of early reliance on the Charter before it was given binding force can be found in P Eeckhout, ‘The EU Charter of Fundamental Rights and the Federal Question’ (2002) 39 CML Rev 945, 947 ff. 269 Generally on the genesis, content, scope and early case law on the Charter, see D Anderson and C Murphy, ‘The Charter of Fundamental Rights’ in A Biondi, P Eeckhout and S Ripley (eds), EU Law after Lisbon (Oxford, Oxford University Press, 2012); P Craig, The Lisbon Treaty: Law, Politics, and Treaty Reform (Oxford, Oxford University Press, 2010) ch 6.

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European law.270 In judicial practice, the Charter appears to have superseded the Union’s unwritten catalogue of rights as the main standard for assessing European legislative acts on fundamental rights grounds. Consider the observations of the Court’s president in early 2011: Since 1 December 2009, the date on which the Treaty of Lisbon entered into force and the date on which that treaty conferred on the Charter the status of primary law of the EU, it has been cited in some thirty judgments. Thus the Charter has become the reference text and the starting point for the CJEU’s assessment of the fundamental rights which that legal instrument recognises.271

The relationship between the Charter, the common constitutional traditions and the ECHR is reflected, amongst other things, in two interpretative duties. Charter rights that correspond to ECHR rights must be given the same meaning and scope as that guaranteed under the Convention.272 When the Charter recognises fundamental rights as they result from the constitutional traditions common to the Member States, a softer obligation of harmonious interpretation applies.273 More generally, the important role of fundamental rights as grounds of review was underscored by the Court of Justice in its seminal judgment in Kadi I.274 The case concerned a challenge to Union measures implementing UN Security Resolutions, as a result of which the assets of presumed terrorists and terrorist organisations were frozen. The Court held that respect for fundamental rights constitutes a core principle of the European legal order, which does not admit of exceptions, and vowed to act as the guardian of the Union’s foundational principles:275

270 The continued relevance of unwritten fundamental rights (as part of the general principles of law) as standards of review seems to be confirmed by, amongst others, Case C-144/04 Werner Mangold v Rüdiger Helm [2005] ECR I-9981, paras 74–76; Case C-555/07 Seda Kücükdeveci v Swedex GmbH & Co KG [2010] ECR I-365, para 50, in which the Court recognised the general principle of equal treatment on grounds of age. 271 Joint Communication from President Costa of the European Court of Human Rights and President Skouris of the Court of Justice (17 January 2011, available on the Court of Justice’s website). For an overview of some of the views of the other members of the Court, see S Morano-Foadi and S Andreadakis, ‘Reflections on the Architecture of the EU after the Treaty of Lisbon: The European Judicial Approach to Fundamental Rights’ (2011) 17 European Law Journal 595. 272 Charter of Fundamental Rights of the EU, Art 52(3). This provision also explicitly allows the Union to guarantee more extensive protection. An inventory of rights which can be regarded as corresponding to those in the ECHR can be found in the Explanations relating to the Charter of Fundamental Rights [2007] OJ C303/17 at 33–34. 273 Charter of Fundamental Rights of the EU, Art 52(4). 274 Kadi and Al Barakaat International Foundation (n 248), appeal judgment from the ruling of the General Court (then Court of First Instance) in Case T-315/01 Kadi v Council and Commission [2005] ECR II-3649. This judgment also contained fundamental reflections by the Court of Justice on the relationship between the EU and the international legal order, with this Court adopting a different approach from that put forward by the General Court in its Kadi ruling. These issues are discussed in eg G de Búrca, ‘The ECJ and the International Legal Order: A Re-Evaluation’ in G de Búrca and J Weiler (eds), The Worlds of European Constitutionalism (Cambridge, Cambridge University Press, 2012); N Isiksel, ‘Fundamental Rights in the EU after Kadi and Al Barakaat’ (2010) 16 European Law Journal 551; A Dawes and B Kunoy, ‘Plate Tectonics in Luxembourg: The ménage à trois between EC Law, International Law and the European Convention on Human Rights following the UN Sanctions Cases’ (2009) 46 CML Rev 73. 275 It has been argued that the principle of effective judicial protection and the generality of judicial review can be seen as a ‘supra-constitutional’ rule: see V Constantinesco, ‘The ECJ as Law-Maker: Praeter aut Contra Legem?’ in D O’Keeffe and A Bavasso (eds), Judicial Review in European Union Law: Essays in Honour of Lord Slynn of Hadley (The Hague, Kluwer, 2001) 79. According to de Búrca, ‘The ECJ and the International Legal Order: A Re-Evaluation’ (n 274) 121, all EU-recognised fundamental rights appear to belong to the ‘normatively superior category’ following Kadi.

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284. [R]espect for human rights is a condition of the lawfulness of [Union] acts and . . . measures incompatible with respect for human rights are not acceptable in the [Union]. 285. [T]he obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the [European Treaties], which include the principle that all [Union] acts must respect fundamental rights, that respect constituting a condition of their lawfulness which it is for the Court to review in the framework of the complete system of legal remedies established by the Treaty. 286. In this regard it must be emphasised that, in circumstances such as those of these cases, the review of lawfulness thus to be ensured by the [Union] judicature applies to the [Union] act intended to give effect to the international agreement at issue, and not to the latter as such. . . . 303. Those provisions [Articles 351 and 347 TFEU] cannot . . . be understood to authorise any derogation from the principles of liberty, democracy and respect for human rights and fundamental freedoms enshrined in Article 6(1) TEU as a foundation of the Union. 304. Article [351 TFEU] may in no circumstances permit any challenge to the principles that form part of the very foundations of the [European] legal order, one of which is the protection of fundamental rights, including the review by the [Union] judicature of the lawfulness of [Union] measures as regards their consistency with those fundamental rights.276

It should be pointed out that the category of the general principles of European law is broader than fundamental rights and also encompasses principles with more institutional overtones.277 A good example is the principle of institutional balance, which is the EU’s version of Montesquieu’s classic notion of the separation of powers and governs relationships between the different Union institutions.278 Finally, the Court of Justice at times relies on international agreements concluded by the Union and on customary international law when assessing the legitimacy of legislative measures adopted by the EU institutions.279 The European judges’ ability to use inter national norms as grounds for review is not all-encompassing, however, with the Court refusing to accept in particular the provisions of the GATT 1947, WTO agreements and

Internal citations of case law omitted. This source of reference standards also includes principles that would be considered part of the administrative law doctrine at national level. A good treatment of a number of the core general principles of EU law can be found in T Tridimas, The General Principles of EU Law, 2nd edn (Oxford, Oxford University Press, 2006). 278 The Court also uses this principle when it is called upon to enforce the horizontal balance of powers. See eg Joined Cases 205–15/82 Deutsche Milchkontor GmbH v Federal Republic of Germany [1983] ECR 2633, para 17; Case C-70/88 Parliament v Council (‘Chernobyl’) [1990] ECR I-2041, paras 21–23. Academic treatment of this principle can be found in eg J-P Jacqué, ‘The Principle of Institutional Balance’ (2004) 41 CML Rev 383; K Lenaerts and A Verhoeven, ‘Institutional Balance as a Guarantee for Democracy in EU Governance’ in C Joerges and R Dehousse (eds), Good Governance’s in Europe’s Integrated Market (Oxford, Oxford University Press, 2002); B De Witte, ‘Institutionele Beginselen van Gemeenschapsrecht’ in H Cousy et al (eds), Liber Amicorum Walter Van Gerven (Deurne, Kluwer, 2000). Before the entry into force of the Lisbon Treaty, the principle of sincere cooperation between the EU institutions and between the institutions and the Member States was another example of an unwritten principle of law. See now Arts 13(2) and 4(3) respectively. 279 As for the former category, see eg Joined Cases 21–24/72 International Fruit Company NV v Produktschap voor Groenten en Fruit [1972] ECR I-1219; for the latter category, see Case C-162/96 Racke GmbH & Co v Hauptzollamt Mainz [1998] ECR I-3655, paras 45–46. It has been argued in the literature that more recent case law of the Court evinces a change in approach. For an accessible examination of these cases, holding that any change in attitude is not exceedingly radical, see C Eckes, ‘International Law as Law of the EU: The Role of the ECJ’ in E Cannizzaro, P Palchetti and R Wessel (eds), International Law as Law of the European Union (Leiden, Martinus Nijhoff, 2011). For a more general discussion of the legal effects of international norms within the EU legal order, including their use by the Court of Justice, see P Eeckhout, EU External Relations Law, 2nd edn (Oxford, Oxford University Press, 2011) ch 9. 276 277

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more recently the UN Convention on the Law of the Sea as standards against which to test Union legislative acts.280

XIV. COMPARATIVE REMARKS

Having explained which sources of law are considered to provide standards for assessing the constitutionality of legal rules in the selected countries and the EU, this final section draws the lines together and offers a comparative analysis, identifying commonalities as well as differences in approach. From a national comparative perspective, there are, generally speaking, three domestic sources of legal rules and principles that constitutional courts and non-judicial constitutional guardians may use as standards for review. These are the country’s foundational document(s) – often bearing the official title of ‘constitution’; unwritten constitutional principles and customs; and other laws of a constitutional nature or attributed a constitutional role. As noted, the national constitution is commonly regarded as the most obvious source of standards for assessing the legitimacy of statutes and other legal rules. At the same time, the approaches adopted in the countries studied in this chapter vary in some respects. It is axiomatic that the content, breadth and detail of constitutional documents differ across States, which also affects the institutions entrusted with the task of upholding such documents, as they have less or more text to work with. This may also be a factor explaining the need for and attractiveness of using unwritten constitutional law by these institutions in performing their functions. Relatedly, most constitutional courts and non-judicial guardians are able to apply all the provisions contained in the constitution, but not the Belgian Cour constitutionnelle or the Hungarian Alkotmánybíróság, which may only test legal rules referred to them for review against enumerated constitutional provisions. In the case of the Hungarian court, this limitation is of relatively recent origin and applies only when it examines the constitutionality of budgetary legislation. Its Belgian colleague has always been restricted in the provisions that it can use to test legislation, but its creative approach to the interpretation of the constitutional clauses guaranteeing the principles of equality and non-discrimination means that this restriction is not of great practical relevance. Further, some constitutions – like the Czech, German, French and Italian ones – state that certain provisions or principles cannot be amended and likewise, the courts have at times recognised that there exist ‘supra- constitutional’ principles, which may serve as the ultimate standards for assessing legislation and sometimes even the legitimacy of constitutional amendments.281 Finally, the French Conseil constitutionnel is exceptional in that it has recognised the preamble to the 1958 constitution as an independent source of constitutional rights, which it can use as grounds for review – a move that was inspired by the absence of a comprehensive catalogue of fundamental rights in the main body of the constitution.282 280 The position of the Court of Justice in relation to the GATT 1947 and the WTO can be found in eg Case C-149/96 Portugal v Council [1999] ECR I-8395, paras 36–47 and is based mainly on the fact that many other contracting parties to these agreements deny their invocability before domestic courts. As regards UNCLOS, see Case C-308/06 Intertanko v Secretary of State for Transport [2008] ECR I-4057. The Court’s position on the precise conditions under which norms of international law can be invoked is not definitely settled and one of the questions that require further elaboration is whether such norms need to meet the criteria for direct effect to be invocable. 281 In addition, such norms may also be used to examine the compatibility of EU law with the constitution. 282 More generally on the role of preambles as a source of standards for review and on their other functions, see L Orgad, ‘The Preamble in Constitutional Interpretation’ (2010) 8 International Journal of Constitutional Law 714.

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Unwritten constitutional rights and principles are a further source of reference stand ards in most of the jurisdictions canvassed in this chapter. Constitutional courts regularly use provisions contained in the country’s foundational document as the textual ‘hook’ for the recognition of such unwritten rights and principles. There is, as such, a strong preference for using constitutional provisions guaranteeing fundamental rights or general ‘rule of law’ clauses. Consider for instance the approach of the German Bundesverfassungsgericht, which has interpreted Article 2 of the Basic Law as enshrining a general right to freedom of action and has subsequently extracted additional ‘unnamed liberties’ from this right. Similarly, the Italian Corte costituzionale regards the constitutional provision protecting the inviolable rights of man as an open provision, which enables it to complete the list of rights expressly laid down in the constitution. The use of rule of law clauses as textual pegs for the recognition of unwritten rights is exemplified notably by the judicial practice of the Polish Trybunał Konstytucyjny and the Hungarian Alkotmánybíróság under the pre-2012 constitution. These courts constitutionalised the principle of legal certainty, the protection of vested rights, access to justice, the right to privacy and the right to life – to name just a few – with reference to such clauses, leading one commentator on the work of central and eastern European courts to observe that: [T]he rule of law and the premises derived from it are capable of hosting a constantly growing family of unwritten constitutional requirements. It seems to be a matter of the intellectual vigour of a constitutional court whether requirements prescribed in this way are associated with certain constitutional provisions, or are simply derived from the principle of the rule of law.283

To be sure, there are also unwritten rules or principles that have been endorsed as grounds for review without the court or other body seeking to provide a textual grounding in the constitutional document. This is notably the case as regards constitutional customs or conventions that structure the relationship between Parliament and the executive or regulate other aspects of the workings of government, as we saw for instance in the United Kingdom, the Netherlands, Finland and Italy. In some countries, it is possible to use other laws of a constitutional nature or with a constitutional role as benchmarks for checking whether legal rules pass muster. Thus, in the Czech Republic, the Charter of Rights and Freedoms and constitutional acts form part of that country’s constitutional order and may accordingly be invoked by the Ústavní Soud to determine the validity of legislation or sub-statutory acts. In Italy too, the Corte costituzionale can use the constitutional acts referred to in Article 138 of the Italian constitution as grounds for reviewing ordinary statutes and other legal rules. Some constitutional courts accept that there are documents that formally speaking have the status of ordinary legislation, but are recognised to play a constitutional role due to their close affiliation with con stitutional provisions, which stipulate their observance or which they flesh out and complement. In the Italian and Spanish constitutional discourse and case law, such laws are known as the norme interposte and as elements of the bloque de constitucionalidad respectively. In a similar fashion, the Belgian Cour constitutionnelle has accepted that the legal rules ordering the duties and responsibilities of the different levels of government are not only contained in the constitution, but may also be found in ordinary legislation and even in norms that do not have a legislative character. Lastly, in the United Kingdom, which lacks a single and entrenched written constitution, all acts of parliament are formally of equal rank, Uitz, ‘The Rule of Law in Post-Communist Constitutional Jurisprudence’ (n 113) 87.

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although some statutes may in practice be considered to be ‘constitutional’ in the sense that they deal substantively with matters that are usually regarded as ‘constitutional’ in nature. Laws LJ provided an inventory of such acts in Thoborn, all of which deal with the basic tenets of the UK constitution identified by the House of Lords Constitution Committee. The focus so far has been on grounds for constitutional review that have their origins in the domestic legal order. In addition, it has become quite commonplace for constitutional guardians to attribute a role to norms of international and European law in the exercise of their mandate. Two broad approaches can be distinguished. First, in some countries rules of international and European law are treated as auto nomous standards for review and the breach of such rules suffices to support a finding of unconstitutionality. The countries that adhere to this approach vary as to the extent to which norms of international and European law can be invoked as self-standing grounds for review. The Dutch Council of State arguably has the most generous approach, in that it can use the full range of international and European provisions when giving advice on the compatibility of bills with higher norms, although in practice it mostly relies on human rights treaties. The Italian constitution requires respect for generally recognised principles of international law, and the Corte costituzionale has accepted that it can accordingly use inter national customary law as a standard for assessing the constitutionality of domestic legislation. In addition, all international agreements, notably including the ECHR, and rules of EU law (in the case of proceedings initiated directly before it) are attributed the status of norme interposte and may similarly be used to review domestic legal norms. In Poland, Hungary and the Czech Republic, a distinction is maintained between international (human rights) treaties and norms of EU law: the constitutional courts are empowered to use the former category as benchmarks when engaged in constitutionality control, but have declined the power to find domestic law unconstitutional due to a perceived breach of EU law (but see below). Finally, while the Belgian Cour constitutionnelle formally lacks the competence to use international and European norms as standards for review, it has developed the doctrine of ‘analogous interpretation’ in its case law, which in effect enables it to indirectly review the compatibility of Belgian rules with such norms. It could be said that the control exceptionally exercised by the French Conseil constitutionnel in relation to legislation transposing European directives, whereby it will have to test the impugned law against the directive that it purports to implement to determine whether there is an obvious incompatibility between the two, can also be considered a form of indirect control. Second, rules of international and European law can be used as a source of inspiration in deciding on the meaning of domestic constitutional provisions and principles. This is common practice among most of the constitutional guardians considered in this chapter, who notably prefer to use this approach when interpreting the national catalogue of fundamental rights. In this vein, it is noteworthy that the Spanish constitution explicitly requires the Tribunal Constitucional to construe the constitutionally guaranteed rights in conformity with international human rights instruments. In general, it may be said that the ECHR has been particularly favoured as supplying guidelines for the interpretation of constitutionally guaranteed rights, although the Belgian, Polish, Czech and Spanish courts also acknowledge that rules of Union law and judgments of the Court of Justice are a source of inspiration in this regard. It has been remarked that the Union’s constitutional framework ‘today boasts an impressive array of human rights provisions’,284 notably including the Charter of Craig and de Búrca, EU Law (n 264) 363.

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COMPARATIVE REMARKS 279

Fundamental Rights, and it will be interesting to see what national constitutional courts will make of the growing pervasiveness and salience of fundamental rights provisions within the Union legal order when providing constitutional justice within their respective national legal order. This is an appropriate juncture to shift focus from a comparison of different national legal systems to a comparison between the approach of domestic constitutional guardians and the Court of Justice to the grounds for constitutional review. A number of parallels can be observed in this regard. The European Treaties, judicially typified as the Union’s constitutional charter and today complemented by the Charter of Fundamental Rights, may be used by the Court of Justice as a standard for assessing the permissibility of Union legislative acts, in much the same way that national constitutions fulfil this role in the countries studied. A further similarity concerns the significance attributed to unwritten rules and principles by both constitutional courts and other domestic constitutional guardians on the one hand, and the Court of Justice on the other. In this respect, the ruling in Kadi can be interpreted to suggest the existence of supraconstitutional principles within the EU legal order – akin to the German Ewigkeitsklausel or the Italian principi supremo.285 Like most of the national constitutional custodians, the Court of Justice further contemplates a role for non-‘domestic’ (ie, European) norms in shaping its framework of reference standards. It occasionally invokes international agreements and rules of customary international law as separate grounds for review. In addition, evocative of a pervasive national practice, international human rights treaties, most particularly the ECHR, are treated as a source of inspiration in identifying and interpreting EU fundamental rights. Lastly, it should be highlighted that where several constitutional courts attribute to Union law, including the Charter, the role of interpretative aid in fleshing out the meaning of national constitutional provisions, the Court of Justice for its part recognises common national constitutional traditions as a source of inspiration in discovering and interpreting European fundamental rights, although its actual judicial practice in this regard may be described as lacklustre. In closing, a couple of final observations are warranted. First, a striking parallel is the use of unwritten principles as grounds for review by both constitutional courts and the European Court of Justice; and, relatedly, the importance often attributed to such principles as elementary norms of the respective constitutional order. It is clear that reliance on rights and principles not expressly spelled out in the constitution or other documents with a constitutional rank or role invests courts with considerable discretion and countenances judicial creativity in selecting and shaping unwritten rights and principles that may serve as grounds for review. This may also be considered a relevant factor in debates on the (perceived) judicial activism of a given national constitutional court or the Court of Justice. Secondly, the written standards for review are not static; they may develop and change over time. Such evolution can take place at the instigation of the political institutions, where appropriate with the participation of the people. A country may adopt a new constitution (as happened in Poland and Hungary) or the existing document may be amended, whereby the procedural provisions governing the chief constitutional guardian are modified (as in Belgium) or changes are made to the more substantive constitutional provisions. In addition, the political institutions may adopt (or abrogate) other legal texts that are 285 It is interesting to note that the Court of Justice can rely on these principles as ultimate yardsticks in deciding on the effects of international rules in the EU legal order and that some national constitutional courts similarly invoke foundational principles of their constitutional order as controlimiti to the effects of EU law in the national legal system.

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considered to be part of the sources of standards for review: think of constitutional acts in the Czech Republic and Italy, the Italian norme interposte or the legal rules that make up the Spanish bloque de constitucionalidad. As noted earlier, though, constitutional courts do not always abide by the intentions of the (constitutional) drafters when it comes to the range of the grounds on which they can test the legality of national acts. For example, we have seen that the Czech Ústavní Soud continues to assert that it may measure laws against human rights treaties despite an amendment that sought to eliminate this possibility, and that the French Conseil constitutionnel bestowed constitutional value on the preamble to the 1958 constitution, which was not meant to be judicially enforceable. It is furthermore clear that the constitutional courts – and the other guardians examined here – can also play an important role in the evolution of the written reference standards through the device of interpretation. It is a characteristic feature of most constitutions that they contain open, generally formulated norms, which require concretisation and decoding by means of interpretation. As has been poignantly observed: ‘Whatever its form, no constitution is self-explanatory or self-implementing.’286 The choice of interpretation techniques is of considerable significance in this regard, as is the question whether the constitutional court or other body considers the constitution and other laws with a constitutional rank or role as ‘living’ documents that should evolve, change with society over time and adapt to new circumstances in line with the Zeitgeist. Thirdly, there is a noteworthy trend that consists of the reliance on norms originating outside the internal legal order in the exercise of constitutional review, either as a source of inspiration or as grounds for review in their own right, and that are regularly – but not always – also explicitly mentioned in rulings and advisory opinions. The upshot is that the activities of actors in those other legal orders, encompassing both the institutions responsible for adopting such norms and those tasked with interpreting and upholding them, may influence the meaning given to the internal standards for review.

286 D Feldman, ‘Factors Affecting the Choice of Techniques of Constitutional Interpretation’ in F MélinSoucramanien (ed), L’interprétation constitutionnelle (Paris, Dalloz, 2005) 124.

Chapter 6 Testing and Remedying Unconstitutionality I. INTRODUCTION

Dieter Grimm, a former member of the German Bundesverfassungsgericht, once observed that ‘constitutional courts inevitably cross the line between law and politics and between the law making and the law applying processes’.1 His two explanations of why this is the case resonate with topics that have been addressed in earlier chapters of this book, more particularly those describing the functions performed by constitutional courts and identifying the benchmark that these institutions use when asked to decide on the constitutionality of legal provisions.2 According to Grimm: First, in exercising judicial review constitutional courts decide on the constitutionality of the law and thereby on the propriety of legislative behavior; second, the constitution does not offer an unambiguous and complete standard for these decisions. This is already true with regard to the organisational and procedural norms and even more true with respect to substantive norms such as fundamental rights.3

Since no sharp distinction can be drawn between politics and (constitutional) law, one may also have to accept that there is ‘no usable catalogue of criteria that could serve as a signpost in the ridge-walking between law and politics’.4 With constitutional courts inexorably drawn into the political fray and at times having to handle high profile or intensely political cases, an important question is how they can navigate the law-politics divide to acquit themselves adequately.5 The chapter critically explores several ‘prudential’ methods and strategies that the selected European constitutional courts can use when performing the task of assessing the validity of statutes and other legal measures on constitutional grounds.6 Section II looks at the tendency of these courts to incorporate statements in 1 D Grimm, ‘Comment’ in C Landfried (ed), Constitutional Review and Legislation: An International Comparison (Baden-Baden, Nomos, 1988) 169. Wojciech Sadurski has gone even further and typified constitutional courts in mature democratic systems as ‘essentially political institutions, engaged in wide-ranging law- and policy-making’: ‘Constitutional Justice, East and West: Introduction’ in W Sadurski (ed), Constitutional Justice, East and West: Democratic Legitimacy and Constitutional Courts in Post-Communist Europe in a Comparative Perspective (The Hague, Kluwer, 2002) 9. 2 Respectively ch 3 and ch 5. 3 Grimm, ‘Comment’ (n 1) 169. 4 J Limbach, ‘The Law-Making Power of the Legislature and Judicial Review’ in B Markesinis (ed), Law Making, Law Finding and Law Shaping: The Diverse Influences, vol 2 (Oxford, Oxford University Press, 1997) 174. 5 It should be clear that the scope of jurisdiction given to constitutional courts and the rules on standing are also important factors in this context: the easier it is to trigger the involvement of the constitutional court, the more issues will be referred to it and the more likely it is that the court will be asked to adjudicate politically charged or otherwise controversial matters. 6 To be sure, several of the techniques examined in this chapter can also be used when these courts carry out some of the other functions that have been entrusted to them. For a discussion of various ways in which constitutional courts and the Court of Justice can mitigate or pre-empt charges of judicial activism (including the techniques

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their decisions articulating what they see as their job and what is the proper role of the democratically elected legislature. Section III considers the doctrine of the ‘living law’ that has notably been practised by the Italian Corte costituzionale with a view to avoiding trespassing into the domain of the ordinary courts. This is followed by a discussion of the popular technique of constitution-conform interpretation that enables constitutional courts to save legislation from being annulled, but may entail them performing some form of judicial surgery on the pertinent legal provisions to be able to arrive at that conclusion (section III).7 Section IV explores the various kinds of decisions that constitutional courts can hand down and the effects thereof. Lastly, section V contains some final remarks. It should be noted that, unlike in the previous chapters, the European level and its Court of Justice are not discussed in the conclusion or the section just preceding it, but instead are integrated in the national comparative analysis and considered at the close of sections II, IV and V.

II. DEFERENCE RHETORIC

Constitutional judiciaries in Europe take care to emphasise proper deference to legislatures when evaluating the constitutionality of statutes. Judicial deference expresses the relative legitimacy enjoyed by constitutional judiciaries. Deference rhetoric also enables courts to show due respect for Parliament’s determinations regarding the constitutionality of legislation, whose members must commonly swear or promise to uphold the constitution upon accepting office.8 In addition, courts recognise the superior institutional capacity of the legislature to make polycentric decisions, which require consideration of a host of different elements or consideration of complex factual matrices. Coupled with the difficulty of modifying or overturning court rulings, a deferential court would think twice before striking down the policies of democratically accountable legislatures. Deference rhetoric, then, is typically used to set the tone of the substantive examination of a legislative measure. Judicial deference can take various forms. A common starting point for judges engaged in constitutional adjudication is the presumption of constitutionality. This means that the court will commence its examination of a statute under review by initially presuming its compatibility with the constitution. The party contesting the constitutionality of the statute is accordingly required to persuasively substantiate the grounds for its challenge. Thus, by way of example, the Polish Trybunał Konstytucyjny has declared that ‘The burden of argument is on those who challenge the constitutionality of a law and unless they featured in the present chapter), see M de Visser, ‘A Cautionary Tale: Some Insights Regarding Judicial Activism from the National Level’ in M Dawson, B De Witte and E Muir (eds), Judicial Activism at the Court of Justice (Cheltenham, Edward Elgar, 2013). 7 It should be emphasised that in particular the technique of constitution-conform interpretation and the closely related presumption of constitutionality of the legislative proposal under review are also used by other, non-judicial constitutional guardians when they are called upon to ensure that the legislature has shown the necessary respect for constitutional rules and principles. These notably include the Constitutional Law Committee of the Finnish Parliament, the UK House of Lords Constitution Committee and the Dutch Council of State, discussed in more detail in ch 1, section III-B and section II-A respectively. 8 It should be remembered, however, that the constitutionality of proposed legislation is not always thoroughly and/or autonomously debated by the legislature, ie independent of the judicial construction of the meaning and scope of the relevant constitutional provisions, as explained in ch 1, section III.

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produce a specific and convincing legal argument to prove their points, the Constitutional Tribunal will recognize the laws under challenge as constitutional’.9 Another illustration is offered by sentencia 17/1981 of the Spanish Tribunal Constitucional, in which it held that: [T]he law, as the emanation of the popular will, can in principle only be repealed or modified by the representatives of that will, and it is only for the case in which the legal provision infringes the Constitution that this Court has been granted the power to annul it. This power can only be used, nevertheless, when so required by very serious and well-founded reasons. . . . When these wellfounded and serious reasons do not exist, then respect for the legislator requires that this Court should refrain from making any higher pronouncement.10

In line with Kelsen’s conception of the institution of the constitutional court, constitutional judiciaries can also express deference by characterising themselves as ‘negative legislatures’.11 This Kelsenian concept has heavily influenced central and eastern European courts. Consider, for example, the following excerpt from a judgment of the Czech Ústavní Soud, ruling on the constitutionality of provisions of the Civil Code concerning the termination of apartment leases: No provision of the constitutional order gives rise to a binding order that the legislature regulate lease relationships to apartments in a particular manner. . . . Thus, it is in the legislature’s discretion whether to regulate leases generally for all imaginable subjects of lease agreements, or whether to respond through special provisions . . . or whether civil law will continue to differentiate and distinguish leases . . . based on the aims pursued at the time by the legal framework. Insofar as it passes such a legal framework within the bounds of the constitutional order, and leaves the court which applies it discretion for a constitutional interpretation of the norm in question, it is not desirable for the Constitutional Court, as a body for the protection of constitutionality and also as a negative legislature, to further widen the alleged constitutional gap through its derogative intervention.12

A case before the Polish Trybunał Konstytucyjny concerned a challenge to an amendment to the Copyright Act on the ground that the period between its promulgation and entry into force was insufficient to allow the addressees thereof to adjust to the new legal situation. Like its Czech counterpart, the Trybunał Konstytucyjny invoked the concept of negative legislature: Where the Constitutional Tribunal finds that a given vacatio legis [the period between promulgation of an Act and its entry into force] is excessively brief, it may (acting as a ‘negative legislator’) 9 Adapted from W Sadurski, Rights before Courts: A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe (Dordrecht, Springer, 2005) 98. 10 Sentencia 17/1981 of 1 June 1981 at FJ 4, excerpt taken from Spanish constitutional tribunal, The Problems of Legislative Omission in Constitutional Jurisprudence, National Report for the XIV Congress of the Conference of European Constitutional Courts (2008), 5. 11 According to Kelsen, a judgment annulling a statute has the same character as a statute which abrogates an earlier statute and can therefore be classified as a negative act of legislation. The adjective ‘negative’ signals that the constitutional court may only order the removal of general norms from the legal system; it cannot positively decide on the adoption or content of new legislative norms. Kelsen first developed his theory of the negative legislature in ‘La guarantie juridictionnelle de la constitution (La justice constitutionnelle)’ (1928) XXXV Revue du droit public 197. 12 Judgment Pl ÚS 42/03 of 28 March 2006, Protection of Apartment Lease, 62. Another example is offered by Judgment Pl ÚS 21/01 of 12 February 2002, Budget Case, VII. The legal discourse also uses the terminology of negative legislature in relation to the Czech constitutional court: see eg J Filip, P Höllander and V Šimícˇek, Zákon o Ústavním soudu: Komentárˇ (Prague, CH Beck, 2001) 226–89.

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only declare unconstitutional the statutory provision prescribing this period. It may not, however, usurp the legislator’s role and decree a period which would, in its opinion, be sufficient. In the event of a finding of unconstitutionality, the Act would have to return to Parliament in order for a new date of its entry into force to be determined.13

In a comparable fashion, European constitutional courts frequently emphasise that the legislature possesses wide discretion in making policy choices and that it is not for the court to second-guess such decisions.14 Thus, in one of its early rulings, the German Bundesverfass ungsgericht explained that: The Constitutional Court is not authorised to judge the wisdom of legislation . . . The Constitutional Court must examine such measure only to the extent of determining whether the legislature has observed the ultimate limits of its discretionary power and whether it has abused that power.15

Echoing these sentiments, the Conseil constitutionnel has held that ‘It is not for the Constitutional Council, which does not have a general discretionary decision-making power comparable to that of Parliament, to call into question the provisions enacted by the legislature on the basis of the state of knowledge and techniques’.16 A further example is offered by the abortion judgment of the Hungarian Alkotmánybíróság, which states as follows: It is the legislature which must evaluate the ethical and scientific viewpoints about the fetus, weigh its changing conceptualisation in the context of conflicting social trends, and decide whether these changing conceptualisations should be followed by the law. . . . Where the law should draw the line between the unconstitutional extremes of total prohibition and unrestricted availability of abortions and what indications it requires is the responsibility and the competence of the legislature to decide.17

For a last illustration, consider what the Belgian Cour constitutionnelle had to say in a 2001 decision in which it had to review legislation that allowed the revocation of financial contributions by the State to political parties on the ground that the latter did not commit themselves to observe the rights and freedoms guaranteed under the European Convention on Human Rights: ‘The Court does not have a power to assess and decide matters that is comparable to that of the democratically elected legislative assemblies. It would be acting ultra vires, should it replace its assessment on this point with that of the legislature.’18 The 13 Decision K 55/02 of 16 September 2003, Brief vacatio legis in introducing the requirement to obtain a license for cable network retransmissions at 3. 14 Note in this respect also Law no 87/1953, Art 28 concerning the Italian Corte costituzionale, stating: ‘The judgment of the Constitutional Court regarding an Act or statutory measure may not be based on any political reasoning or on any assessment regarding the use by the Parliament of its discretionary powers.’ 15 4 BVerfG 4, 7 (1954) Investment Aid I (excerpts from the judgment in English can be found in D Kommers and R Miller, The Constitutional Jurisprudence of the Federal Republic of Germany, 3rd rev edn (Durham, NC, Duke University Press, 2012) 624–26. 16 Décision no 2001-446 DC of 27 June 2001, Voluntary interruption of Pregnancy (Abortion) and Contraception Act. See also the first decision on abortion issued by the Conseil constitutionnel in which it held: ‘Article 61 of the Constitution does not confer on the Constitutional Council a general or particular discretion identical with that of Parliament, but simply empowers it to rule on the constitutionality of statutes referred to it’. Décision no 74-54 DC of 15 January 1975, Voluntary interruption of Pregnancy Act. 17 Decision 64/1991 of 17 December 1991, On the regulation of abortion. Excerpts in English can be found in L Sólyom and G Brunner, Constitutional Judiciary in a New Democracy: The Hungarian Constitutional Court (Ann Arbor, University of Michigan Press, 2000) 178 ff. 18 Judgment no 10/2001 of 7 February 2001, Vlaamse concentratie at B.4.6. See also eg judgment no 11/94 of 27 January 1994, Bic Benelux, at B.3.3.

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logic underlying the use of deference rhetoric also shapes and influences the employment of other techniques of constitutional adjudication, such as the standard of proof demanded by the constitutional court before it will proceed to strike down an act of parliament (as we have seen) or reliance on the technique of constitution-conform interpretation (on which, see below). Shifting our focus to the EU order, expressions of deference are somewhat less forthcoming in judgments of the Court of Justice of the European Union that entail the exercise of constitutional jurisdiction.19 As an example, consider the ruling in the Working Time Directive case, where the Court held: As to judicial review of those conditions [including the principle of proportionality], however, the Council must be allowed a wide discretion in an area which, as here, involves the legislature in making social policy choices and requires it to carry out complex assessments. Judicial review of the exercise of that discretion must therefore be limited to examining whether it has been vitiated by manifest error or misuse of powers, or whether the institution concerned has manifestly exceeded the limits of its discretion.20

Furthermore, regardless of whether the case concerns the legitimacy of Union legislative measures or national statutes, any reflections on the room for manoeuvre for the respective legislature do not always seem to set the tone of the discussion, but often appear in the justificatory phase of the scrutiny test rather than precede it. Matters are somewhat different as far as the treaty-makers are concerned, where instances of deference on the part of the Court of Justice can be more easily identified.21 Finally, it should be remembered that presumptions may be overturned and that professions of deference may be purely rhetorical – or perceived as such by the addressees of the judgment – and do not inevitably mean that constitutional courts will refrain from striking down legislation or adopt a hands-off approach in examining the compatibility of the law under review with the constitution.22 At the same time, it should be acknowledged that constitutional judges appear to consider it suitable and necessary to incorporate considerations concerning the proper roles of the legislature and the court in their rulings, in line with judicial self-perceptions and given that ‘a logic of appropriateness governs judicial behaviour to a great extent’.23 That having been said, if the audience of the court frequently 19 For two examples of cases involving an assessment of the validity of EU legislative measures without explicit reflections on the proper respective roles of the European legislature and the Court, see Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen [2010] ECR I-11063; Case C-236/09 Association belge des Consommateurs Test-Achats ASBL v Conseil des ministres [2011] ECR I-773. 20 Case C-84/94 United Kingdom v Council (‘Working Time Directive’) [1996] ECR I-5755. 21 A good example is offered by Case C-50/00P Unión de Pequeños Agricultores v Council [2002] ECR I-6677 concerning the rules on standing for individuals to bring annulment actions against European legislation, where the Court of Justice explained: ‘While it is, admittedly, possible to envisage a system for judicial review of the legality of Community measures of general application different from that established by the founding Treaty and never amended as to its principles, it is for the Member States, in accordance with Article 48 EU [setting out the procedure for amending the European Treaties], to reform the system currently in force.’ 22 For an example concerning the concept of negative legislature, see the Czech constitutional court’s judgment in Pl ÚS 20/05 of 28 February 2006, Rent Control, asserting as follows: ‘Based on these facts, the Constitutional Court, in its role of protector of constitutionality, cannot limit its function to the mere position of a “negative” legislature, and must, in the framework of a balance of the individual branches of power characteristic of a lawbased state founded on respect for the rights and freedoms of man and citizens (Art 1(1) of the Constitution), create space for the preservation of the fundamental rights and freedoms.’ 23 D Robertson, The Judge as Political Theorist: Contemporary Constitutional Review (Princeton, Princeton University Press, 2010) 21. The notion of ‘a logic of appropriateness’ has been developed by J March and J Olsen, ‘The Logic of Appropriateness’ in M Moran, M Rein and R Goodin (eds), Oxford Handbook of Public Policy (Oxford, Oxford University Press, 2006).

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detects and comments upon an incongruity between avowals of deference and an assertive body of case law, the credibility and usefulness of deference rhetoric as an instrument of judicial restraint may be undermined.

III. THEORY OF THE LIVING LAW

It should be clear from the preceding discussion that the use of deference rhetoric expresses how constitutional judiciaries view their relationships with the legislature. This section focuses on the theory of the living law, a technique used by some constitutional courts when reviewing the constitutionality of laws that is inspired by considerations relating to the relationship with the ordinary judiciary. This technique was developed and is principally practised by the Italian constitutional court, although, as we shall see, it has also made an appearance in the case law of other courts and in scholarly writings outside Italy. From 1965 onwards, the Corte costituzionale has embraced the doctrine of the living law (dottrina del diritto vivente), according to which it decides on the constitutionality of a statute not in the abstract, but as it is understood and interpreted (‘lives’) in the consolidated case law of the ordinary courts, notably judgments emanating from the Corte di cassazione (court of cassation).24 In judgment 350 of 1997, the Corte costituzionale explained how it might be confronted with questions regarding the constitutional validity of the living law: Even though it is beyond doubt that in the existing system there is no obligation for the regular judge to conform himself to the guidelines of the court of cassation . . ., it is also true that when these guidelines are consolidated in a stable manner in the case law – to such an extent that they exhibit the characteristics of living law – it is quite possible that the norm, as interpreted by the court of cassation and the regular judges, is subjected to constitutionality control, because the norm by now lives in the legal order in such a rooted fashion that it is difficult to imagine that there will be a change of the system without the intervention of the legislature or this court. In other words, in the presence of a living law which is not shared by the judge a quo because he is of the opinion that it is unconstitutional, he thus has a choice between following a different interpretation, which he is always allowed to do, or acquiescing to the living law, to refer the question [of its conformity with the Constitution] to this court.25

It should be recalled that the preliminary reference procedure is the principal avenue by which challenges to the constitutionality of statutes can be submitted to the Italian court.26 The doctrine of the living law principally features in two types of decision that have been devised by the Corte costituzionale in the context of this procedure.27 First, by means of a corrective ruling (sentenza correzione), a request for a preliminary ruling can be rejected without the constitutional question referred being considered on its merits. One of the grounds for doing so involves the Corte costituzionale indicating that the interpretation of the statutory provision offered by the referring judge – which has led her 24 Generally, see eg A Pugiotto, Sindacato di costituzionalità e ‘diritto vivente’: genesi, uso, implicazioni (Milan, Giuffrè, 1994). 25 Sentenza 350/1997 of 13 November 1997, considerato in diritto 2. (my translation). 26 Only the State and the regions have the right to directly initiate proceedings before the Corte costituzionale. For more detail, see ch 3, section III-C(i). 27 The Italian constitutional court has also fashioned several other types of judgment besides those explicitly contemplated by the relevant legal rules. These will be discussed in more detail below.

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to doubt the constitutionality of that rule – is incorrect and must be adjusted to conform to the more influential and widespread judicial interpretation of that provision, that is to say, to the prevailing living law.28 Second, and of greater relevance in this context, are so-called interpretative decisions (sentenza interpretativa), whereby the Corte costituzionale pronounces on the merits of the constitutional question raised by an ordinary judge. To appreciate the nature of these decisions, it is important to know that Italian doctrine and case law recognise a distinction between the legal text (disposizione), that is, the words actually written down in a given statute, and the meaning ascribed to this text following the process of interpretation (norma).29 Interpretative decisions come in two guises. The first entails the rejection by the Corte costituzionale of the claim of unconstitutionality presented by the referring judge (sentenza interpretativa di rigetto) in the preliminary reference. More precisely, the Italian constitutional court rejects the meaning given to a statute by the ordinary judge, which may be in line with well-established case law and leads to doubts concerning the statute’s constitutionality, and itself proposes an alternative interpretation (norma), indicating that only this reading of the statute ensures its compatibility with the constitution.30 The counterpart is the interpretative judgment accepting the constitutional challenge (sentenza interpretativa di accoglimento), in which the Corte costituzionale rules that the particular interpretation of a statute provided by the referring judge – which can include those based on the living law – is in conflict with the demands of the constitution and accordingly holds that this interpretation (norma) is unconstitutional, while allowing the text itself (disposizione) to stand.31 As hinted at in the introduction to this section, the theory of the living law has emerged in the case law of the Italian constitutional court as part of an effort to ensure a good working relationship with the ordinary courts and in particular with the Corte di cassazione. From its early decisions onwards, the Corte costituzionale has asserted competence to provide an autonomous interpretation of the statute alleged to violate the constitution, in order to determine whether a constitutional situation can be achieved by means of an interpretative decision, notably a sentenza interpretativa di rigetto, so as to save the statute from annulment.32 At the same time, the Corte costituzionale called upon the ordinary courts to embrace the constitution in the exercise of their jurisdiction and, where possible, read statutes in accordance with the relevant constitutional provisions, alongside their 28 Italian constitutional court, The Relations between the Constitutional Courts and the Other National Courts, including the Interference in this Area of the Action of the European Courts, National Report for the XIIth Congress of the Conference of European Constitutional Courts (2002), 12. 29 See eg R Guastini, ‘Rules, Validity and Statutory Construction’ (1992) 1 Italian Studies in Law 11. 30 See eg sentenza 91/2004 of 8 March 2004; sentenza 379/2007 of 5 November 2007; sentenza 308/2008 of 29 July 2008. Recourse to the doctrine of the living law is particularly significant in the context of these sentenzas interpretativa di rigetto, according to the Italian constitutional court in The Relations between the Constitutional Court and the Other National Courts (n 28) 12. 31 With this type of judgment, the regular judges retain the power to choose other interpretations of the statute in question: unlike with the sentenza interpretativa di rigetto, the Corte costituzionale does not seek to impose its own reading of the statute on the regular judges, but only strikes out one particular interpretation suggested by the ordinary courts, thereby leaving other possible readings intact. As such, it has been acknowledged that regardless of the type of interpretative decision used, the Corte di cassazione retains the final word on the meaning of the living law: see A Pizzorusso, ‘Présentation de la cour constitutionnelle italienne’ [1999] 6 Cahiers du Conseil constitutionnel. 32 See in particular sentenza 3/1956 of 15 April 1956. In the early years of the Corte costituzionale’s existence, various scholars argued against this institution having the power to autonomously construe the meaning of statutory provisions. See eg G Conso and E Fazzalari, ‘Appunti per una discussione sui problemi attuali della Cassazione’ (1966) 21 Rivista di diritto processuale 69, but today, its ability to do so seems to be generally accepted.

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competence to use the preliminary reference procedure.33 While this call initially went unheeded, from the mid-1960s onwards the ordinary courts progressively took the con stitution into account in the process of statutory interpretation. In response, the Italian constitutional court developed the doctrine of the living law, recognising that the Corte di cassazione, in view of its position at the apex of the ordinary judiciary, is principally responsible for establishing the meaning of acts of parliament and thereby avoiding, as much as possible, conflicting interpretations of the same legal rule by the court of cassation and itself.34 As Lamarque notes: [T]he Constitutional Court seemed to be satisfied with the results it had obtained thus far and, not wanting to force the regular courts’ hand, proposed new interpretations in conformity with the Constitution only when an unconstitutional settled case law had not been formed.35

The need for the Corte costituzionale to invest in a good modus vivendi with the Corte di cassazione and lower regular courts derives mainly from the fact that, as noted earlier, the former is heavily dependent on the latter for the supply of questions concerning the validity of statutes in order to be able to carry out its mission of keeping the legislature in check. A further point is that sentenze interpretative di rigetto, in contrast to interpretative judgments di accoglimento, are not considered to enjoy erga omnes effects; they bind only the referring judge in the case at bar.36 Instead, these judgments are treated as authoritative precedents, on the condition of being supported by persuasive reasoning. This means that the effectiveness of sentenze interpretative di rigetto, in which the Italian constitutional court indicates what it perceives to be the only proper and constitutionally conforming interpretation of a statute, is dependent on the ordinary courts accepting this interpretation.37 In practice, then, ‘there seems to have been a tacit division of labour between the Constitutional Court and ordinary courts, so that each endorses and approves the other’s interpretation within its own sphere’.38 More recent years have seen the gradual decline of the relevance of the doctrine of the living law. Statutes are increasingly referred to the Corte costituzionale for scrutiny relatively soon after their adoption, which means there is as yet no consolidated case law that

33 E Lamarque, ‘Interpreting Statutes in Conformity with the Constitution: The Role of the Italian Constitutional Court and Ordinary Judges’ [2010] Italian Journal of Public Law 91, 112. 34 There have, perhaps unsurprisingly, been instances of conflict between the Corte costituzionale and the Corte di cassazione, notably concerning the effects of interpretative rulings handed down by the former for the latter. Consider in particular the two so-called ‘wars’ in the 1960s and in the mid-1990s/early 2000s, the first of which is described in J Merryman and V Vigoriti, ‘When Courts Collide: Constitution and Cassation in Italy’ (1967) 15 American Journal of Comparative Law 665; the second is explained in L Garlicki, ‘Constitutional Courts versus Supreme Courts’ (2007) 5 International Journal of Constitutional Law 44, 56 ff. 35 Lamarque, ‘Interpreting Statutes in Conformity with the Constitution’ (n 33) 113–14. 36 More generally, all judgments that do not entail the Corte costituzionale declaring that the pertinent statutory provisions are unconstitutional formally lack effects erga omnes. 37 If the regular courts, including the Corte di cassazione, reject the interpretation put forward by the Corte costituzionale, the latter will have no option but to strike down the statute itself as unconstitutional when it is again placed before it for review. The formula typically used by the Corte costituzionale in such judgments is that legal provisions are found to be in breach of the constitution, insofar as they made possible the interpretation given to them by the regular courts. The unwillingness of ordinary courts at times to accept the reading of legislation provided by the Corte costituzionale in interpretative judgments di rigetto has led the latter to prefer handing down interpretative judgments di accoglimento. 38 T Groppi, ‘The Italian Constitutional Court: Towards a “Multilevel System” of Constitutional Review?’ (2008) 3 Journal of Comparative Law 100, 5.

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must be respected.39 Accordingly, the constitutional court is more often called upon to provide an autonomous interpretation of a statute, before being able to decide the question of its constitutionality. The place of the doctrine of the living law as one of the judicial tools designed to enable the harmonious coexistence of the Corte costituzionale and the ordinary courts is thus taken over by a growing emphasis on the technique of constitution-conform interpretation, which is discussed in more detail below.40 The Polish Trybunał Konstytucyjny also adheres to the living law approach, although explicit references to this notion are not forthcoming in its decisions.41 Once the supreme court or the high administrative court has authored a well-established and stable line of case law on the meaning to be given to a certain legal norm, the tribunal will treat this interpretation as revealing the actual content of the provision.42 Accordingly, if the understanding of a legal rule in the judicial practice of the ordinary courts is compatible with the constitution, this reading will be endorsed as the only admissible interpretation of the rule. Conversely, if the existing interpretation does not pass constitutional muster, the Trybunał Konstytucyjny will typically rule that the underlying legal provision is unconstitutional,43 although it can also decide to reject the established judicial practice and adopt an alternative, constitutional interpretation of that provision.44 Another constitutional court that should be mentioned in this context is the Hungarian Alkotmánybíróság. In an early judgment on the constitutionality of a provision in the Family Act laying down the conditions under which the presumption of paternity could be challenged, the Alkotmánybíróság embraced the theory of the living law, following the Italian example:45 39 In addition, the Corte costituzionale was for many years plagued by a considerable backlog of cases, which meant that even if laws were referred to the Corte costituzionale for scrutiny within a short period after being adopted, it would take years before their constitutionality could be determined, allowing for the emergence of the living law in the meantime. 40 In particular, the constitutional court now requires the ordinary courts to have made a serious effort to read legislation in harmony with the constitution before it will accept preliminary questions regarding the validity of laws as admissible, as explained in more detail in ch 7, section III-A. This is one of the factors that has led scholars to characterise the Italian system as ‘mixed’, in the sense of holding the middle ground between a truly centralised and a truly decentralised model of constitutional adjudication. See Groppi, ‘The Italian Constitutional Court’ (n 38); Lamarque, ‘Interpreting Statutes in Conformity with the Constitution’ (n 33). 41 A former judge of the Polish constitutional tribunal explicitly mentions this theory when describing the tribunal’s approach: see Garlicki, ‘Constitutional Courts versus Supreme Courts’ (n 34) 60. 42 Polish constitutional tribunal, The Relations between the Constitutional Courts and the Other National Courts, including the Interference in this Area of the Action of the European Courts, National Report for the XIIth Congress of the Conference of European Constitutional Courts (2002), 12. See also the English summary of Decision SK 18/00 of 4 December 2001, State liability for harm caused by unlawful actions of its functionaries at point 16, where the tribunal held that a deviation from its normal tendency to follow the established judicial practice of the regular courts was called for in this specific case, as the case law of the latter had lost its validity upon the entry into force of a new constitution in 1997. 43 See eg Decision SK 14/05 of 1 September 2006, where a provision of the civil code was held to be in breach of the constitution, even though it was possible to read it in a constitution-conform manner, with the Trybunał Konstytucyjny reasoning that it would be inadmissible to impose ‘its’ different interpretation on the regular judges. See M Safjan, ‘Décision de conformité sous réserve’ in P Bon and D Maus (eds), Les grandes décisions des cour constitutionnelles européennes (Paris, Dalloz, 2008) 791. 44 See eg Decision SK 14/05 of 1 September 2006. The second remedy is not universally accepted in Polish academic circles according to M Safin, ‘Poland: The Constitutional Court as a Positive Legislator’ in A Brewer-Carías (ed), Constitutional Courts as Positive Legislators: A Comparative Law Study (Cambridge, Cambridge University Press, 2011) 716. 45 That this doctrine was borrowed from the Italian Corte costituzionale is explicitly acknowledged by Lászlo Sólyom, former chief justice of the Hungarian constitutional court, in ‘The Role of Constitutional Courts in the Transition to Democracy: With Special Reference to Hungary’ (2003) 18 International Sociology 133, 145.

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If judicial practice of the ordinary courts and generally accepted legal interpretation apply a legislative text, possessing a variety of possible interpretations, in a uniform manner with a specified and determined meaning, then the Constitutional Court must scrutinize the constitutionality of the legislative text based on that meaning and content. If the normative content prevailing in practice can be determined, then the constitutional review must commence from the fact that the meaning and content of the legal rule is what the uniform and permanent legal practice deems it to be. . . . Following the above, the Constitutional Court should not compare the normative text in itself with the content of the provisions of the Constitution, but the norm which prevails, becomes effective and is realized – namely, the ‘living law’. In the opinion of the Constitutional Court, the ‘living law’ must be understood to comprise the text and both the interpretive and applied content of a legal rule.46

To understand why the Hungarian constitutional court was moved to adopt the ‘living law’, it should be recalled that at the time, the constitutional complaint procedure could only be used to question the constitutionality of legislative provisions; it was not available as a remedy in situations where the legal rule itself was constitutional, but had been applied in an unconstitutional manner by the ordinary courts or the administration.47 By endorsing the theory of the living law, the Alkotmánybíróság was able to scrutinise actual judicial practice for constitutional conformity – in what the then chief justice described as ‘an important step from abstract norm control towards more concrete protection of rights’.48 The underlying intention was to introduce this theory into constitutional case law prior to the adoption of a new constitution, which was initially scheduled for the mid-1990s, so that it would be part and parcel of an established body of constitutional law and could be considered by the drafters when shaping the relationship between the Alkotmánybíróság and the ordinary judiciary.49 However, the Hungarian constitutional court was severely criticised for embracing the living law theory, including by the two dissenting judges, who pointed to a number of drawbacks associated with its use. Legal certainty would be undermined, because the constitutional court would not consider the text of a law as published in the official gazette, but ‘the version corrected and thereby distorted by the practice of its application’, which would deprive ‘citizens and legal persons of the possibility of acquainting themselves with the laws in force’. From a more practical perspective, the dissenters feared that the court lacked the necessary resources to systematically examine how the contested legal norm is applied in practice, with a view to determining whether such a practice is sufficiently permanent and uniform to give rise to the ‘living law’. Furthermore, the legislature should not be ‘punished’ for the unconstitutional interpretation of a law by the ordinary courts in the form of the annulment 46 Decision 57/1991 of 8 November 1991, On Legal Guardians and on the Family Act. Excerpts in English can be found in Sólyom and Brunner, Constitutional Judiciary in a New Democracy (n 17) 171 ff. 47 See ch 3, section III-B. 48 Sólyom, ‘The Role of Constitutional Courts in the Transition to Democracy’ (n 45) 145. Indeed, in the case accepting the living law theory, the Hungarian Alkotmánybíróság not only declared the contested provision null and void, but also vacated the judgment of the lower court applying the invalidated legal rule. This judgment has been considered an attempt on the part of the Alkotmánybíróság to transform the constitutional complaint into a genuine legal remedy, but has been heavily criticised in the literature as exceeding the competences bestowed upon it. See eg G Brunner, ‘Structure and Proceedings of the Hungarian Constitutional Judiciary’ in Sólyom and Brunner, Constitutional Judiciary in a New Democracy (n 17) 85 and the references mentioned therein. In later decisions delivered before the entry into force of the new constitutional framework, the Alkotmánybíróság accordingly refrained from vacating or correcting judgments handed down by the regular courts. 49 Personal communication with Professor Renata Uitz.

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of this law, if it would pass muster under a different, and correct, interpretation of the constitution.50 In such cases, the dissenting judges argued, the constitutional court should instead indicate in its reasoning possible interpretations of the challenged text that are consistent with the constitution, and thereby offer guidance to the ordinary judiciary. According to one prominent commentator on the Alkotmánybíróság, this dissenting opinion thereby laid the foundation for the technique of constitution-confirm interpretation practised in subsequent rulings, in a development that somewhat mirrors the contemporary Italian experience with the doctrine of the living law.51 In the end, and as plans for a new constitution at that time did not come to fruition, the Alkotmánybíróság refrained from continued reliance on the theory of the living law in its later case law. Finally, the possible introduction of the theory of the living law and its perceived merits has been the subject of academic debate in Belgium and France, but the Cour constitutionnelle and Conseil constitutionnel respectively have so far refrained from clearly and consistently applying this theory in their case law.52

IV. CONSTITUTION-CONFORM INTERPRETATION

A technique that is ubiquitous in the case law of European constitutional courts is that of constitution-conform interpretation, known in French as réserves d’interprétation and in German as Verfassungskonforme Auslegung. After explaining what this technique entails (section A), we will take a closer look at four decisions delivered by different constitutional courts to show what constitution-conform interpretation looks like in practice (section B). Having thus set the stage, we will consider why courts across Europe have embraced this strategy and offer some general reflections on the merits of engaging in constitution- conform interpretation, with reference notably to the political legitimacy of constitutional courts (section C). Lastly, the approach taken by the Court of Justice is explored (section D). In view of the widespread use of constitution-conform interpretation, the discussion below will not feature a systematic and sequential analysis of each of the constitutional courts studied in this book; rather, the salient points will be elaborated with the help of

50 It should be noted that, in contrast to the Italian version of the theory of the living law, the Hungarian just ices understood that the Alkotmánybíróság would not be able to correct unconstitutional interpretations of legislative provisions by articulating an alternative reading of the relevant clauses or striking down particular readings relied on by the regular courts in applying the legislation, but that the Alkotmánybíróság would have to quash the pertinent legal rules. This is what happened, for instance, in Decision 9/1992 of 30 January 1992, On the Protest of Illegality. 51 G Halmai, ‘The Hungarian Approach to Constitutional Review: The End of Activism? The First Decade of the Hungarian Constitutional Court’ in Sadurski (ed), Constitutional Justice, East and West (n 1) 205. 52 For Belgium, see eg J Van Compernolle and M Verdussen, ‘La guerre des juges aura-t-elle lieu? A propos de l’autorité des arrêts préjudiciels de la Cour d’arbitrage’ (2000) 119 Journal des tribunaux 297, 301 ff. For France, see eg C Severino, La doctrine du droit vivant (Paris, Economica, 2003); F Laffaille, ‘Hic sunt leones: la question prioritaire de constitutionnalité en France (à la lumière de quelques comparaisons tirées du droit italien)’ (2010) 17 Politeia 283. Recall that before the 2008 constitutional reform and the introduction of the preliminary reference procedure, the Conseil constitutionnel could only review the constitutionality of acts of parliament that had been adopted but had not yet entered into force, which meant that application of the theory of the living law was at that time not technically possible because there could not yet exist any established and stable judicial practice in relation to the legal provisions challenged on constitutional grounds.

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illustrative examples from various jurisdictions. Relevant system-specific issues will be highlighted if and when appropriate. When reading the pages that follow, it is helpful to remember that the term ‘constitution- conform interpretation’ can be, and has been, used quite liberally to cover a variety of judicial practices.53 More importantly, we should be aware that this technique is not uncontroversial. To be sure, it can be celebrated as a useful and even welcome device that enables constitutional courts to show due respect for the greater democratic pedigree of the legislature: the contested provisions under review are after all not invalidated, but allowed to remain on the statute book. Yet, to arrive at this outcome, it will become clear that courts perform at times quite extensive judicial surgery on the law in question, making it difficult to characterise the decisions they hand down in those cases as showcasing judicial deference; rather, the courts seem to act as ‘positive legislatures’54 in such instances. Upon closer scrutiny, the seemingly innocuous legal technique of constitution-conform interpretation thus brings to the fore wider normative questions pertaining to the division of labour between the political institutions of governments and the courts.

A. General Introduction In order for a constitutional court to determine the validity or otherwise of the legal provisions submitted to it for review, it must first elucidate the legal meaning and scope of the contested text. The presumption of constitutionality, considered above, dictates that when more than one valid construction of the contested rule is possible, the judges should opt for the interpretation that ensures (the greatest) harmony with the constitution.55 Consider by way of illustration the classic formula of the Bundesverfassungsgericht, first articulated in a 1953 ruling: [I]t generally applies as a principle that a law cannot be declared void if it can be interpreted in conformity with the Constitution; for it is not only a presumption which speaks in favour of the reconcilability of a law with the Basic Law, rather, the principle enshrined in this presumption demands an interpretation in conformity with the Constitution also in case of doubt. That the purpose of the law may not be disregarded in this [engaging in constitution-conform interpretation] is self-evident.56

Similarly, according to established case law of the Spanish Tribunal Constitucional: [I]t need only declare the unconstitutionality of provisions ‘whose incompatibility with the Constitution is beyond doubt due to the impossibility of formulating an interpretation [of these provisions] that would be in accordance with it’.57

53 In favour of more conceptual clarity, see eg D Pinard, ‘A Plea for Conceptual Consistency in Constitutional Remedies’ (2006) 18 National Journal of Constitutional Law 108. 54 Kelsen, the intellectual father of separate constitutional courts, had conceived of these institutions as ‘negative legislatures’ in the sense that they would only be able to strike down measures adopted by the ‘positive legislature’, namely Parliament. 55 In many European countries, the courts are well disposed to reading legislation (and other legal acts) in harmony with EU law and the European Convention on Human Rights, often referred to as ‘EU-conform’ or ‘ECHR-conform’ interpretation. 56 BVerfG 2, 266 (1953) at 40. (my translation). 57 See eg sentencia 111/1993 of 27 April 1993 at FJ 8 with cross-references. (my translation).

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Likewise, the Italian Corte costituzionale holds that ‘when a provision admits of different interpretations, only one of which ensures the compatibility of the norm with the constitution, this one must be followed’.58 Such conciliatory interpretation is however not always possible; as the Bundesverfassungsgericht has acknowledged, it is subject to constraints in the form of the wording of the statute, its essential objectives as recognisably expressed in the law and, relatedly, the intentions of the legislature.59 Yet, it should be realised that constitutional courts are often willing to go to considerable lengths before concluding that it is not possible to read the impugned statute or other text in harmony with the constitution. More particularly, there are instances where provisions on their face seem to impinge upon constitutional provisions and values, but where these courts desire to avoid arriving at that conclusion and engage in constitution-conform interpretation, which in those cases may involve them modifying the scope and meaning of the pertinent rules. To this end, constitutional courts can include guidelines in their decisions for the interpretation under review that must be followed by administrative authorities and the regular courts when applying and enforcing the relevant legislative provisions. Constitution-conform interpretation may thus entail the judicial rewriting of the legislation in question, which technically speaking can take the form of adding in words or phrases, substituting a portion of the text, or removing particular expressions or complete sentences from the statute. It is vital to distinguish the particular linguistic intervention applied in relation to the legislature’s initial formulation of the statute from its effect on the statute’s reach. This can be explained by considering two common ways in which laws can present constitutional problems. Some legislation is under-inclusive, that is to say, it wrongly excludes situations or persons that ought, constitutionally speaking, to fall within its scope of application. Other statutes are unjustifiably over-inclusive, that is to say, they extend to cases or individuals that ought not to be covered by the provisions in question. By making using of constitution-conform interpretation, constitutional courts may be able to correct such apparent flaws by either extending or limiting the reach of the law. How they do so will depend on the drafting style of the statutory provision. For example, imagine a statute providing for child benefits, which only allows married couples to claim such benefits. Upon examination, the constitutional court finds that the statute is in breach of the constitutional principle of equality, because unmarried parents too should be entitled to receive child benefits. The judges believe that they can remedy this unlawful exclusion by means of constitution-conform interpretation. Now, if the disputed law expressly states that ‘married couples shall be entitled to apply for child benefits’, the judges will be required to add the words ‘and unmarried’ to the legislature’s formulation. Conversely, if the law contains an exception governing the wrongfully excluded group (‘unmarried couples shall not be entitled to apply for child benefits’) or stipulates that ‘only married couples may claim child benefits’, the constitutional court will need to remove the expressly stated exclusion to ensure the law’s compatibility with the constitution. Regardless of whether the court has to resort to ‘reading in’ (the first scenario) or ‘reading down’ (the second scenario), the effect is the same: the statute’s scope of application is extended. eg ordinanza 279/1990 of 31 May 1990. BVerfG 69, 1 (1985) Conscientious Objector II; BVerfG 54, 277 (1980). For a critical examination of the Bundesverfassungsgericht’s use of the technique of constitution-conform interpretation, see K Betterman, Die verfassungskonforme Auslegung: Grenzen und Gefahren (Heidelberg, Müller, 1986). 58 59

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B. Four Examples of Decisions Involving Courts Engaging in Constitution-Conform Interpretation Having set out some of the basic features of constitution-conform interpretation, the following pages feature four decisions delivered by different constitutional courts to illustrate how this technique plays out in constitutional practice. i. Belgium: Restricting Party Financing on Fundamental Rights Grounds The first example is the Party Financing ruling of the Belgian Cour constitutionnelle.60 This is a judgment which for many years was arguably the most well-known instance in Belgium of constitution-conform interpretation specifically entailing the ‘reading down’ of the contested law.61 The case arose out of a challenge to an amendment to the law regulating the financing of political parties. The impugned amendment authorised the withdrawal of state subsidies from political parties that displayed – either through their own behaviour or through that of their components, lists, candidates or MPs – hostility towards the rights and freedoms safeguarded by the European Convention on Human Rights (ECHR). The amendment was referred to the Cour constitutionnelle for review by a special not-for-profit organisation mandated to receive government subsidies on behalf of Vlaams Blok (a farright political party)62 and several party members.63 They asserted that the possibility of retracting financing as a sanction for hostility vis-à-vis the ECHR breached the constitution, more particularly the freedom of expression.64 The Cour constitutionnelle reasoned as follows: B.4.7.2. . . . The totality of the parliamentary preparation demonstrates chiefly the lawful wish according to which a democracy must be able to defend itself with energy and in particular cannot allow that political freedoms, which are its own and make it vulnerable, are used to destroy it. Even though the nature of the contested principle can therefore justify radical measures, this nature at the same time mandates that such measures are limited to the protection of the democratic character of the regime and are not extended according to the contested idea that every Judgment no 10/2001 of 7 February 2001, vzw Vlaamse concentratie en anderen (‘Partijfinanciering’). Other famous examples include judgment no 157/2004 of 6 October 2004 and judgment no 17/2009 of 12 February 2009. For a discussion of these and other rulings of the Belgian constitutional court applying the technique of constitution-conform interpretation, see S Sottiaux, ‘Grondwetsconforme interpretatie: Garantie voor of aantasting van de scheiding der machten?’ in A Alen and S Sottiaux (eds), Leuvense Staatsrechtelijke Standpunten 2 (Bruges, Die Keure, 2010) in particular 234 ff; B Lombart, ‘Les techniques d’arrêt de la Cour d’arbitrage’ [1996] Revue belge de droit constitutionnel 317; G Rosoux, ‘Les réserves d’interprétation dans la jurisprudence de la Cour d’arbitrage: une alternative à l’annulation’ [2001] Revue belge de droit constitutionnel 400. For an overview of the judgments handed down before 2004 that involved the use of this technique, see G Rosoux and F Tulkens, ‘Considérations théoriques et practiques sur la portée des arrêts du la cour d’arbitrage’ in La Cour d’arbitrage: un juge comme les autres? (Liege, ASBL Éditions, 2004). 62 The party was banned in 2004 by the Belgian Cour de cassation, which has jurisdiction in this respect, on the grounds of racism. Its successor is the party ‘Vlaams Belang’. 63 The Belgian rules on standing, including the possibility for individuals to bring abstract constitutionality challenges, are discussed in ch 3, section III-A(i)(b) and (c). 64 The Cour constitutionnelle reformulated this objection as involving a breach of the principle of non- discrimination, in the sense that the law would introduce an unjustified distinction in the conditions under which political parties could exercise their freedom of expression and obtain government funding, because at the time that the action was brought, it lacked the competence to directly test the compatibility of legislation with the full panoply of fundamental rights laid down in the Belgian constitution. For more detail, see ch 5, section II. 60 61

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political option which is adopted by a democracy or a totality of democracies is therefore essential for democracy. Consequently, it is important that the contested provisions are interpreted strictly and not in such a way that they permit that financial means (the necessity of which the legislature has acknowledged since it provides these itself and at the same time has restricted the opportunity to obtain others) are denied to a party that has only proposed that one or another rule in the ECHR or in one of the protocols is given a new interpretation or is revised, or has espoused criticism of philosophical or ideological presumptions of those international instruments. In this context, ‘hostile’ can only be understood as the incitement to a violation of a valid legal norm (amongst others to committing violence and resistance against those norms); it is further for the highest courts of law [charged with deciding the validity of the withdrawal of subsidies] to examine whether the subject of that hostility is indeed a principle that is essential for the democratic character of the regime. (my translation).

By giving a narrow reading to the notion of ‘hostility’ as the decisive criterion for withdrawing state subsidies, the Belgian constitutional court thus circumscribed the reach of the law. It went on to stipulate two further interpretative guidelines that should be heeded for the law to pass constitutional muster. To understand the reason for the first of these, it should be mentioned that the Cour constitutionnelle had accepted that the individual petitioners had standing to bring the abstract constitutionality challenges not in their capacity as party members, but because they sat in parliamentary assemblies on behalf of Vlaams Blok and could accordingly be ‘directly and unfavourably affected by the impugned provisions to the extent that these would relate to their interventions in the parliamentary assemblies’.65 When examining the legislative provisions on their merits, however, the Cour constitutionnelle indicated that these should be read so as not to affect the parliamentary immunity of elected representatives: B.4.7.4. . . . The contested provisions do not harm the rights of candidates to run for office, to be elected and to take up their position in the parliamentary assemblies, and cannot be understood so that they would detract from the parliamentary immunity guaranteed by article 58 of the Constitution. An opinion or a vote cast in the exercise of the parliamentary mandate can therefore not give rise to the application of [the relevant provision of the law]. Subject to that condition the measure is not unreasonable. (my translation).

The other interpretative reservation circumscribed the situations in which political parties could forfeit their entitlement to state subsidies. According to the Belgian constitutional court, this sanction could not be imposed where sections of the party had conducted themselves in an anti-democratic fashion, but the party had distanced itself from those actions: B.4.8.2. According to the contested provisions, a political party can lose its donation if it evinces the hostility mentioned in [the law], both ‘as a result of its own doing or through its components, lists, candidates or MPs’. The legislature could refer to these sections, taking into account that political formations usually do not have legal personality and that influencing of the popular will can occur both by the political party as such as by sections thereof, insofar as there is no doubt about the link between these sections and the relevant political party. The measure would however be clearly unreasonable if it would have the result that the relevant party could lose part of its donation through the hostility emanating from one of the aforementioned sections, in spite of the party having openly and clearly disapproved of this. (my translation).

Judgment no 10/2001 of 7 February 2001, vzw Vlaamse concentratie en anderen (‘Partijfinanciering’) at B.2.3.

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ii. The Czech Republic: Burden of Proof in Discrimination Cases As a second example, let us consider the judgment of the Czech Ústavní Soud on the burden of proof in discrimination litigation.66 The case originated from a complaint filed in the regional court by four individuals of Roma nationality, who alleged that they had suffered racial discrimination at the hands of staff employed by the defendants in their restaurant, who had refused to serve them. The regional court had reservations about the constitutionality of one of the rules it had to apply, namely Article 133a(2) of the civil procedure code (CPC). This provision was an implementation by Czech law of a European directive67 and stipulated that courts should consider the facts asserted about a claim of discrimination to be proven, unless the contrary was found in the proceedings. This shift in the burden of proof, the regional court felt, amounted to a violation of the procedural equality of participants in judicial proceedings and hence of the right to a fair trial. It accordingly referred this rule to the Ústavní Soud to be annulled. The Czech constitutional court, however, resorted to constitution-conform interpretation and denied the request for annulment: 68. Undoubtedly, in proceedings listed in the contested § 133a par. 2 of the CPC . . . the defendant is treated differently in relation to proof than are defendants in other civil law proceedings, and this difference is an advantage for the plaintiff, and thus obviously a disadvantage for the defendant. Whether this disadvantage can be considered unconstitutional discrimination must be weighed a) from the viewpoint of an objective and reasonable entitlement, i.e. whether this disadvantage pursues a legitimate aim, and b) from the viewpoint of a reasonable relationship (proportionality) between the legitimate aim and the means by which that aim is achieved. . . . 71. As regards the legitimacy of the aims . . . the Constitutional Court respects the expression of the will of member states of the European Union expressed in the [relevant] directives, and states that the contested § 133a par. 2 of the CPC does pursue a legitimate aim. 72. It remains to be decided whether the second condition has also been met . . . [A]t first glance it is obvious that the condition contained in Article 8 par. 1 of the cited directive, ‘the member states shall enact, in accordance with their legal systems, the necessary measures so that, as soon as a person feels injured by the failure to observe the principle of equal treatment and submits to the court . . . facts indicated that direct or indirect discrimination occurred, it fell [sic] to the opponent to prove that the principle of equal treatment had not been violated,’ that is, a condition that the plaintiff shall present to the court facts indicating that discrimination occurred, is not sufficiently transparently expressed in the existing wording of § 133a of the CPC. . . . However, despite these facts, the Constitutional Court is of the opinion that a constitutional interpretation of the contested § 133a par. 2 of the CPC cannot lead to a conclusion other than that which arises from the cited directive . . ., i.e., that § 133a par. 2 of the CPC does not have the nature of a rebuttable presumption of responsibility being on the defendant. . . . 73. Thus, in the Constitutional Court’s opinion, one cannot conclude from interpretation of § 133a par. 2 of the CPC that it is enough for a person who felt racially discriminated against when purchasing services to simply claim that discriminatory conduct occurred. That person must, in court proceedings, not only claim, but also prove, that he was not treated in the usual, non- disadvantaging manner. If he does not prove this claim, he cannot succeed in the proceedings. . . . Judgment Pl ÚS 37/04 of 26 April 2006, Discrimination. Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180/22. 66 67

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75. . . . For the foregoing reasons the Constitutional Court concluded that § 133a par. 2 of the CPC is a proportionate means for achieving the aim pursued, or that – if it is applied in the abovementioned constitutional manner – a fair balance between the requirements of the public interest of society and the requirements of protection of individual fundamental rights will be preserved.

By reading the contested legal rule to require claimants not only to assert the facts, but also to prove discriminatory treatment, the Czech constitutional court adopted a position that was at odds with the legislature’s intentions, as the latter had sought to make use of the possibility provided by the directive to set even lighter conditions for shifting the burden of proof by permitting claimants to only ‘claim the facts’ and not ‘present facts indicating direct or indirect discrimination’. This contradictory stance was acknowledged and justified by the Ústavní Soud in the following terms: 76. The Constitutional Court takes this presented opinion despite the position of the Ministry of Justice. The content of that position indicates that the Ministry of Justice has essentially the same opinion as the petitioner: that the ‘total’ burden of proof lies on the defendant, and only on him (even if allegedly provided by the legislature with milder conditions for shifting the burden of proof to the defendant). The Ministry of Justice merely – unlike the petitioner – considers this situation to be constitutional. That is of course not the case; the Constitutional Court notes that the Ministry of Justice apparently overlooked the fact that transposition of the cited directives must range within the constitutional bounds of a fair trial; the interpretation presented both by the Ministry of Justice and by the petitioner can not be accepted, because it would exceed those bounds.

Interestingly, in the last paragraph of its decision, the Ústavní Soud acknowledged that it was far from straightforward that the contested provision could be saved from annulment by reading it in a way that would make it comply with the constitution, and called upon the legislature to take action to change the text of the Civil Procedure Code in this regard: 78. Of course, the Constitutional Court considers it undisputed that the formulation of the contested Civil Procedure Code provision requires, especially in terms of the test of proportionality, an interpretation which is virtually a borderline case where one can still, by interpretation of the statutory text, conclude that it is precisely as a result of this interpretation that the contested provision can be considered constitutional. Therefore it would be extremely desirable for the legislature to consider whether it cannot conduct the transposition of the cited EC Council directives for the target audience of the relevant procedural norms in a somewhat more clear manner.

iii. France: Security and Liberty The third example concerns the Security and Liberty ruling of the French Conseil constitutionnel,68 which is considered in French constitutional discourse to be the birthplace of the technique of ‘réservations d’interprétation’.69 In anticipation of presidential 68 Décision no 80-128 DC of 20 January 1981 Loi renforçant la sécurité et protégeant la liberté des personnes. The judgment was also important for the constitutionalisation of criminal law. On this dimension of the judgment and later case law, see eg D Rousseau, Droit du contentieux constitutionnel, 9th edn (Paris, Montchrestien, 2010) 504 ff; and the older J Bell, French Constitutional Law (Oxford, Clarendon Press, 1992) 141 ff. Excerpts in English from a number of key rulings can be found in M Rogoff, French Constitutional Law: Cases and Materials (Durham, NC, Carolina Academic Press, 2011) 288 ff. 69 An excellent discussion of this technique in the case law of the Conseil constitutionnel can be found in A Viala, Les réserves d’interprétation dans la jurisprudence du Conseil constitutionnel (Paris, LGDJ, 1999). French constitutional scholarship commonly distinguishes between three types of such réserves: réserves constructives (the addition of words to the text under consideration to make it comport with the bloc de constitutionnalité), réserves neutralisantes (erasing the harmful effect of impugned provisions by asserting that they are without legal effect),

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elections scheduled for early 1981, the government in late 1980 had proposed a bill that simultaneously sought to improve law and order by reforming aspects of criminal procedure, while also enhancing the protection of civil liberties. The bill was heavily criticised both within and outside Parliament for its allegedly overly repressive character and, within days of its adoption, 145 minority parliamentarians accordingly referred it to the Conseil constitutionnel for scrutiny.70 Although the Conseil constitutionnel ultimately found that only four legislative provisions were unconstitutional, it had ample recourse to constitution-conform interpretation to ensure that many of the remaining clauses would pass constitutional muster. The most significant of these will be examined in what follows.71 One of the impugned provisions punished the disruption of train services by three months’ imprisonment or a fine, without allowing for any exceptions depending on the reason for such interferences. The petitioners had argued that this clause, cast as it was in absolute terms, impinged upon the exercise of the right to strike and the trade union rights recognised by the constitution. The Conseil constitutionnel, however, offered a reading of this provision that made it constitutionally acceptable: 20. Considering that the restraint of barriers or hindrances to the running of trains as a result of placing an object on the tracks is not such as to prevent or interfere in any way with the lawful exercise of the right to strike or of union action; 21. Considering that, if the penalties foreseen in the text would, furthermore, be applicable to any person who, with a view to preventing or interfering with the train service, would have employed some means to hinder or obstruct the running [of the trains], these provisions, which require a positive action on the part of the perpetrators of the acts criminalised [by the law], are not aimed at persons lawfully exercising their right to strike recognised by the Constitution, even if the cessation of their work has the effect of disrupting or cancelling the running of the trains. (my translation).

The contested legislation also included a provision that allowed the examining magistrate (juge d’instruction) or the president of the local criminal court to extend pre-arraignment custody (garde à vue) for certain serious offences beyond the normal duration of 24 hours. The petitioners objected that in the latter scenario, an extension could be ordered by a judge who had not examined the file of the person in detention. In response, the Conseil constitutionnel specified that every magistrate would be required to scrutinise the file before allowing the garde à vue to be continued, even though the contested provision made no express mention of such an obligation: 25. Considering that, if the intervention of a judge to authorise in these cases [ie the specified grave offences] an extension of the pre-arraignment custody, is necessary by virtue of article 66 of the Constitution [prohibiting arbitrary detention], no principle or rule of constitutional status requires that this judge is an examining magistrate. and réserves directives (indicating how those responsible for applying the legislation, notably the regular courts, should do so). See L Favoreu, ‘La décision de constitutionnalité’ (1986) 38 Revue internationale de droit comparé 611. For a comparative examination also involving Italy, see T Di Manno, Le judge constitutionnel et la technique des décisions ‘interprétatives’ en France et en Italie, Collection droit public positif (Paris, Economica-PUAM, 1997). 70 Recall that at that moment, the Conseil constitutionnel could only be asked to verify the compatibility of legislation with the French bloc de constitutionnalité after its adoption, but before promulgation. For more detail and a discussion of the applicable standing rules, see ch 3, section V. 71 As of 2002, the Conseil constitutionnel habitually indicates in the dictum which paragraphs of its decision contain réserves d’interprétation, thereby making it easier to assess whether the Conseil constitutionnel has engaged in constitution-conform interpretation to save the legislation and, if so, in relation to which particular statutory provisions.

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26. Considering that the judge, who will necessarily have to examine the file in order to authorise the extension of pre-arraignment custody beyond twenty-four hours, will not have made a decision on the investigation of the offence or prejudged the guilt of the person under suspicion. (my translation).

Another part of the statute granted law enforcement authorities the power to stop persons to check their identity, and categorised the refusal to comply as a criminal offence. The Conseil constitutionnel clarified that there was an important difference between a refusal to cooperate and an inability to do so on the spot, whereby only the former could be penalised: 61. Considering that, if article 78 punishes with imprisonment and fines any person who refuses to cooperate with identity checks or who prevents the authorised officers from accomplishing their mission of checking and verifying the identity [of persons], these provisions are not aimed at persons who have not been immediately able, at the point [where the check is carried out] or at the police station, to verify their identity. (my translation).

If a person was unable to satisfy a request to verify her identity at the checkpoint, she could be taken to a police station, where she could be held in custody for as long as was strictly necessary to establish her identity. The person detained was able, amongst other things, to request that the public prosecutor be notified of her being taken into custody. The Conseil constitutionnel construed the relevant provision in the legislation such that this possibility was transformed into a right: 57. Considering that paragraphs 2 to 5 of article 76 read as follows: When a person cannot prove his identity at the checkpoint, the officers referred to in the preceding paragraph may, if necessary, take him to the local police station to enable him to furnish proof of his identity. . . . Every person thus brought to the local police station cannot be detained for longer than is strictly necessary to verify his identity, and this period may not exceed six hours. . . . The affected person may at any time request that the public prosecutor is immediately notified of his detention. This magistrate may decide that [the detention] will come to an end. . . . 58. Considering that the application of these provisions is limited by the rule that persons asked to verify their identity can satisfy this request on the spot by an appropriate means of their choice and that they have to be taken to a police station only in case of necessity that strict respect for these prescriptions – [several of which are recalled at this juncture], the right to petition the public prosecutor . . . – limit the constraints placed on the person who was unable or unwilling to prove his identity on the spot to what is necessary to safeguard objectives of general interest which have constitutional value and the pursuit of which has motivated the identity check. (my translation).

The Conseil constitutionnel lastly issued an instruction to the regular judges and administrative authorities to see to it that the safeguards included in the law for persons stopped for identity checks were duly respected: 64. Considering, finally, that the legislature, with a view to preventing abuse, has surrounded the procedure for the checking and verification of identity with numerous precautions; that it is for the judicial and administrative authorities to ensure that these are fully respected, as well as for the competent tribunals to sanction and reprimand, where necessary, illegalities that may be committed and to provide for reparation for any harmful consequences that may possibly result. (my translation).

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iv. Spain: Right to Assistance from Interpreters in Criminal Cases The fourth example is sentencia 74/1987 of the Spanish Tribunal Constitucional.72 The Spanish Parliament had amended various provisions of the criminal procedure act, including granting foreigners who did not understand or speak Castilian73 the right to free assistance from an interpreter when taken into custody. The government of the Basque autonomous community challenged the constitutionality of this amendment, arguing that arrested or detained Spanish citizens – in particular those who enjoy the political status of Basque – should likewise be entitled to the assistance of an interpreter in similar circumstances.74 For a good understanding of the case, it should be noted that while the constitution endorses Castilian as the official State language, other Spanish languages may also be recognised as official in the various autonomous communities, in line with their Statutes of Autonomy.75 Thus, the Statute of the Basque country stipulates that ‘Euskera, the language of the Basque people, shall, like Spanish, have the status of an official language in Euskadi [Basque country]’ and that all its inhabitants ‘have the right to know and use both languages’.76 During parliamentary deliberations on the text of the impugned provision, some MPs had in fact suggested that the right to assistance from an interpreter be extended to residents of those autonomous communities that recognise another official language besides Castilian, but this proposal was ultimately rejected. In examining whether the text of the provision as eventually agreed upon comported with the constitution, the Tribunal Constitucional began by highlighting the importance of assistance from an interpreter for the effective protection of the right to a fair trial, and held that the ability of Spanish citizens to use Castilian should be conceived of as a rebuttable presumption: FJ 3. It is clear that the right to be assisted by an interpreter derives from ignorance of the Castilian language that prevents the detainee from being informed of his rights, enforcing them and making statements that he considers relevant to the police authorities, and while some of these rights would be respected by other means . . ., other rights, involving a dialogue with police officials, cannot be exercised without the assistance of an interpreter. The right in Article 24(1) of the Constitution should be understood as providing that in no case may there be a lack of defence. And while it is true that this provision seems to refer to court proceedings, it must be interpreted extensively as applying to all kinds of actions that have a bearing on a possible trial and sentencing, and among them, to police proceedings, the importance of which is clear for the right to defence. The attribution of this right to the Spaniards who are not fluent in Castilian and not only to foreigners who are in this position is beyond doubt. Otherwise, this would amount to flagrant discrimination prohibited by Article 14 of the Constitution. It cannot be argued that Castilian is the official Spanish language and that all Spanish have a duty to know [this language] (Article 3(1)

Sentencia 74/1987 of 25 May 1987. This book will use the term ‘Castilian’ rather than ‘Spanish’, following the English translation of the Spanish constitution available on the website of the Tribunal Constitucional. 74 The access of the Spanish autonomous communities to the Tribunal Constitucional to contest the constitutionality of measures adopted by the central State is discussed in ch 3, section III-C(i). In this particular case, the Attorney-General had raised an objection of inadmissibility. This challenge was however dismissed by the Tribunal Constitucional, which reasoned that the Basque government had standing as its autonomy was affected by the contested provision, given that the rules on the language to be used in interactions between police personnel and detainees would also apply to the Basque police authorities and that the organisation, regulation and control of police authorities was a matter for the Basque country, as per its Statute of Autonomy. 75 Spanish constitution, Art 3(1)–(2). 76 Statute of Autonomy of the Basque Country, Art 6. 72 73

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of the Constitution), since what is taken into account here is a fact (ignorance or insufficient knowledge of Castilian) as it affects the exercise of a fundamental right, which is the right to defence. . . . Indeed, the duty of Spanish citizens to know Castilian, referred to above, suggests that this knowledge exists in reality, but this presumption can be rebutted when the detainee or prisoner plausibly argues his ignorance or insufficient knowledge or this fact becomes apparent in the course of the activities conducted by the police. (my translation).

Having thus laid the groundwork, the Tribunal Constitucional made use of constitutionconform interpretation to preserve the validity of the contested clause. Putting forward a broad understanding of the personal scope of the legislative provision, the Tribunal Constitucional held that it should be interpreted to mean that Spanish citizens who did not speak or understand Castilian also have the right to assistance from an interpreter: FJ 4. A consequence of this is that the right of every person, foreign or Spanish, who does not know Castilian, to use an interpreter in his statements before the police, derives, as mentioned, directly from the Constitution and does not depend for its exercise on legislative implementation, although this may be convenient for greater efficiency. . . . The rule contained in Article 520(2) is, quite obviously, constitutional if it is not interpreted in the exclusive sense, that is to say, in the sense that it only recognises the right to an interpreter for foreigners but not for Spanish who find themselves in similar circumstances. It is perfectly possible to interpret the impugned norm in line with the Constitution and thereby avoid declaring it unconstitutional. . . . Finally, it should be noted that the assistance of an interpreter must be free of charge for Spanish who require it, just like for foreigners, according to Article 520(3)(e) of the act on criminal procedure. A contrary view would infringe the principle of equality enshrined in Article 14 of the Constitution and would be an unreasonable barrier to the right of defence laid down in Article 24(1) of this fundamental text. (my translation.)

C. Evaluating the Technique of Constitution-Conform Interpretation Having explored what constitution-conform interpretation means in practice, some more general comments about this technique are warranted. The ability of constitutional courts to read statutory provisions in harmony with the constitution, including making adjustments to their meaning or scope to overcome constitutional flaws that would otherwise result in the clauses being struck down, is not usually envisaged by the legal framework governing constitutional adjudicatory processes, but instead embraced by those courts in their case law. Although this legal technique has found favour with all the constitutional judiciaries canvassed in this chapter, there is some variety as regards the decisions handed down after judicial surgery has been performed on a given law. The courts in Belgium, Germany, Spain, Italy and France (since 2002) systematically indicate that they have engaged in constitution-conform interpretation in their holdings, either explicitly repeating the interpretative qualifications in full or referring back to the relevant paragraphs of the decisions in which those reservations are articulated. For instance, the final paragraph of the Belgian Party Financing case reads as follows: For these reasons, the Court – subject to the reservation that the contested provisions must be interpreted narrowly (B.4.7.2.), cannot detract from parliamentary immunity (B.4.7.4.) and cannot result in the loss of the subsidy intended for a party that would have openly and clearly rejected the hostility emanating from its section (B.4.8.2.) – rejects the challenge. (my translation).

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Similarly, the Spanish Tribunal Constitucional held, in the operative part of its ruling on the right of detainees to be assisted by an interpreter, that it had decided: That Article 520(2)(e) of the criminal procedure act as amended by the Organic Law 14/1983 of 12 December is not unconstitutional if it is interpreted in the sense that it does not deny the right to assistance by an interpreter to Spanish citizens who do not understand or do not speak Castilian. (my translation).

Conversely, decisions rendered by the Czech, Polish and Hungarian constitutional judiciaries – and those delivered by the French Conseil constitutionnel before 2002 – do not, or at least do not always, include the judicial reading of the pertinent legislative provisions in the verdict. In those countries, it will thus typically be necessary to study the reasoning in the operative part of the judgment carefully to see whether the court gave the law under review a clean bill of health or whether there are strings attached to its conclusion that the legislation comports with the constitution.77 By way of example, in the Czech Burden of Proof case, the actual judgment made no mention of the fact that the Ústavní Soud had quite radically changed the meaning of the objectionable statutory clause. It simply read: The Plenum of the Constitutional Court of the Czech Republic . . . decided on 26 April 2006 on a petition from the Regional Court in Ústí nad Labem . . ., as follows: The petition to annul § 133a par. 2 of Act no. 99/1963 Coll., the Civil Procedure Code, as amended by later regulations, is denied.78

Incorporating interpretative reservations in the holding of a given decision has its advantages. For one, constitutional courts are thereby better able to assure their binding effect, given that the verdicts delivered by such courts are generally stipulated to be binding, whereas this is not always the case for the reasoning adduced in support thereof.79 Furthermore, the addressees of the decision can easily identify that the constitutional court has put forward a particular reading of the statute under review, to which the legislature may wish to respond by amending the law and which the State organs in charge of interpreting and applying that law in daily life are expected to heed. However, the practice of listing or referring to interpretative conditions in verdicts has also been criticised. This has happened in the Czech Republic, for instance, with those decisions that feature the Ústavní Soud’s reading of the contested law in the holding slated ‘for not having [a] basis in the law, for elevating the Court to the status of the legislature, and for excessively formalising precedential features of the Court’s jurisprudence’.80 Adopting a more general perspective, there may be good reasons for constitutional courts not to be too ‘trigger happy’ when asked to decide on the compatibility of legal provisions with the constitution.81 These primarily concern the relationship between these 77 It should be clear that this task can be quite difficult if the constitutional court has not been very explicit in signalling that it has made use of constitution-conform interpretation. 78 An example of a case in which the Czech Ústavní Soud did indicate the interpretative reservations in its dictum is Judgment Pl ÚS 41/02 of 28 January 2002, Clearance of Defence Counsel; note in this respect in particular the last paragraph under VIII/b, where the Czech court explained its reasons for doing so. 79 This is slightly different in Italy, however, in that judgments handed down by the Corte costituzionale that uphold the law under consideration do not enjoy effects erga omnes. See also section V-A below. 80 Z Kühn, ‘Czech Constitutional Court as Positive Legislator’ in Brewer-Carías (ed), Constitutional Courts as Positive Legislators (n 44) 457, referring to Z Kühn, M Bobek and R Polcˇák, Judikatura a právni argumentace (Case Law and Legal Argumentation) (Prague, Auditorium, 2006). 81 But see V Ferreres Comella, Constitutional Courts & Democratic Values: A European Perspective (New Haven, Yale University Press, 2009) ch 7, who argues that such courts cannot be too timid either, in view of their special mission to enforce the constitution against other State organs, notably the legislature.

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institutions and the political branches of the government, although we will see in chapter seven that constitution-conform interpretation is not without consequences for the relations between constitutional courts and regular judges.82 It is often assumed that constitutional judiciaries make use of this legal technique out of respect for the popularly elected legislature whose policy choices and resultant statutes they wish to uphold as far as possible. Adopting a more strategic perspective, by delivering decisions that do not strike down the contested law but remedy constitutional deficiencies through interpretation, constitutional judges are able to avoid both an open confrontation with the parliamentary majority and the limelight in what may be a highly charged political case. A slightly different line of reasoning suggests that the basic choice between either quashing the law under review or rejecting the constitutional challenge filed against it may be unsuitable in view of the constitutional shortcoming at issue.83 Imagine that the drafting problems are relatively minor or concern an issue that the legislature simply overlooked but would have catered for had it been aware of the constitutional implications. In such cases, it could be economically efficient to allow the constitutional court to carry out the necessary corrective work. The legislature is thereby spared having to dedicate its scarce resources to rewriting a comparatively insignificant part of an otherwise constitutionally irreproachable law. Alternatively, the constitutional court may locate the breach of the constitution in the failure of the legislature to cater for a particular group or interest deserving of protection, as for instance happened in the Spanish case study. By striking down the contested law, its initial addressees would, at least for the time being, lose the rights or benefits the denial of which to others was the cause of the constitutional problem, with the upshot that such a decision would produce a situation even less in accordance with the legislature’s intentions or the constitution’s demands than allowing the law to stand. We will see in section V below that similar concerns have prompted constitutional courts to exhibit some judicial creativity as regards the type, and timing, of unconstitutionality rulings that they can adopt. A final point of note is that the selected European constitutional courts have not (yet) expounded overarching standards or a set of criteria in their case law to determine the suitability of engaging in constitution-conform interpretation in a given case,84 unlike, for example, their counterparts in Canada and South Africa.85 Although the technique of constitution-conform interpretation may be inspired by considerations of judicial deference, it should be clear that its use can give rise to considerable activism on the part of constitutional courts and see them engage in judicial lawmaking. Thus, constitutional judges may actually re-draft legislation in a way that contradicts the legislature’s intentions – as the Belgian and Czech case studies illustrate. These examples also show that this technique is not only employed to redress unconstitutional draftsmanship ch 7, section III-A. M-C Ponthoreau, ‘Réflections sur le pouvoir normatif du juge constitutionnel en Europe continentale sur la base de cas allemand et italien’ [2008] 24 Cahiers du Conseil constitutionnel. 84 See Sottiaux, ‘Grondwetsconforme interpretatie’ (n 61) 231. The Belgian constitutional court is a partial exception, in that it has elaborated two criteria governing the use of constitution-conform interpretation in order to extend the scope of a law. These are, first, that the impugned statute contains a legal gap, and second, that this gap can be identified in sufficiently precise and complete terms. The relevant decisions are judgment no 111/2008 of 31 July 2008 at B.10 and judgment no 64/2009 of 2 April 2009 at B.8.17. It should be pointed out that these criteria are formulated as instructions to the regular courts, which must apply them in situations where the Cour constitutionnelle has found that the statute under consideration violates the constitution. 85 For the Canadian Supreme Court, see Schachter v Canada [1992] 2 SCR 679; for the South-African constitutional court, see National Coalition for Gay and Lesbian Equality v Minister of Home Affairs [2000] (s) SA 1 (CC). 82 83

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exhibited in fairly trivial articles of a law, but may also involve constitutional courts changing the meaning of core provisions of the particular legislation. Further, the French Conseil constitutionnel for one has been reproached in the literature for its at times excessive use of réserves d’interprétation:86 a judgment of March 2004 included more than 10 interpretative guidelines and a prior ruling of February that same year featured in excess of 20 such instructions.87 What is more, unless the legislature disagrees so strongly with the judicial modifications that it is willing to replace the reinterpreted law with a new version, the court’s solution is likely to remain in place, whereas a decision of unconstitutionality would put the matter back in the hands of the legislature. Thus, it has been astutely observed that ‘constitutional tribunals have more of a chance to provide lasting and unsupervised determinations of the law by interpreting the law rather than by voiding it’.88 Turning to the effects of this legal technique for the reach of the disputed statute, of the four case studies examined earlier, the Spanish ruling on the right to assistance from an interpreter is the only one where the constitutional court extended the law’s scope of application – with the other three examples all seeing the constitutional judges limiting the reach of the statute or imposing conditions to be observed in the application thereof. This is no coincidence: constitutional courts are generally cautious or even reluctant to widen the coverage of a law through interpretation to make it comport with the constitution, but appear to have fewer qualms about employing this technique to formulate guidelines to be observed when applying the pertinent legislative provisions or circumscribing their scope of application. This difference can be readily understood by noting that the former approach can give rise to particularly blatant and intrusive judicial lawmaking – which tends not to be well-received by the court’s various interlocutors – and may have serious financial ramifications for the State budget. Lastly, the decision of a constitutional court to seek to read legislation in harmony with the constitution, which at times means stretching the literal wording of the relevant provisions, also affects institutions and groups other than the legislature. For the addressees of legal norms, their legal certainty may suffer in that they can no longer content themselves with scrutinising the text of a given statute, but may be required to examine the body of constitutional case law for possible interpretative qualifications that demarcate their legal rights and obligations. Further, when constitutional courts render decisions that contain judicial ‘repairs’ of legislative provisions to overcome constitutional flaws, they can be said to place themselves at the mercy of the regular courts and the executive as the State organs responsible for applying those clauses in daily legal practice. This is not always or necessarily successful, for various reasons. Ordinary judges and administrative authorities may find it difficult to understand exactly what is required of them when applying legal rules upheld as constitutional, on the condition that specific interpretative directions are complied with. This, in turn, can result in different courts or authorities each ascribing their own understanding to the reinterpreted or readjusted legislation and concomitantly to variations in the way in which the law will be applied, which ultimately may be at odds with the idea of equality under the law. The Czech constitutional court, for instance, has occasionally Rousseau, Droit du contentieux constitutionnel (n 68) 163. Respectively, Décision no 2004-492 DC of 2 March 2004, Law adapting the Administration of Justice to the changing face of crime; Décision no 2004-490 DC of 12 February 2004, Organic law on the statute of autonomy of French Polynesia. 88 A Sajó, ‘Constitutional Adjudication in the Light of Discourse Theory’ (1995) 17 Cardozo Law Review 1193, 1208. 86 87

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decided against a constitutionally conforming interpretation of a law even though such a construction would be possible, because it believed that this was unlikely to work in judicial practice.89 Further, regular courts may be reluctant to heed the reading of the statute put forward by the constitutional court on grounds related to the demarcation of their respective role and functions.90 It is normally the prerogative of regular courts to interpret, apply and develop ordinary legislation, and when the constitutional court proceeds to construe a statute in a particular way to make it comport with the constitution, they may believe that the latter has invaded their domain. This is why constitutional courts may feel incentivised, as was explained earlier, to include their reading of the pertinent statutory provisions in the operative part of decisions finding that the legislation passes constitutional muster, so as to dispel any doubts as to the legal authority of such interpretative qualifications.91

D. The European Level: The Court of Justice It has been observed that the methods and techniques of interpretation used by the Court of Justice by and large resemble those of national constitutional courts.92 Generally speaking, this also holds true for the legal technique examined in this section. The Court of Justice has clarified that it will seek to read EU legislative measures in such a way that they comport with the Union’s constitutional charter: ‘Under a general principle of interpretation, a [Union] measure must be interpreted, as far as possible, in such a way as not to affect its validity and in conformity with primary law as a whole.’93 More recently, we also see that the Court, like national constitutional courts, does not appear to shy away from modifying the reach of Union legislation so that it can pass muster, with the European judges at times wielding a rather firm editorial hand. The rulings in Zoi Chatzi94 and Sturgeon95 offer two nice examples, both of which deal with the question of when situations can be considered comparable and hence warrant equal treatment. In the former case, the Court was asked to decide whether the birth of twins created a right to a double amount of parental leave under the relevant EU legislation.96 This instrument did not explicitly contemplate the particular case of twins and, with one exception, the intervening governments all submitted that a doubling of parental leave was not warranted. The Court found that Member States Kühn, ‘Czech Constitutional Court as Positive Legislator’ (n 80) 454. The difficulty of strictly separating the responsibilities and powers of the regular courts and constitutional judiciaries is addressed by eg FI Michelman, ‘The Interplay of Constitutional and Ordinary Jurisdiction’ in T Ginsburg and R Dixon (eds), Comparative Constitutional Law, Research Handbooks in Comparative Law (Cheltenham, Edward Elgar, 2011). 91 In those legal systems that recognise the constitutional complaint mechanism, constitutional courts may also be able to use this procedure to take action against any disobedience on the part of the ordinary judiciary when it comes to respecting interpretative decisions. See further ch 7, section III-B. 92 M Claes, The National Courts’ Mandate in the European Constitution (Oxford, Hart Publishing, 2006) 416– 17; J Bengoetxea, The Legal Reasoning of the Court of Justice: Towards a European Jurisprudence (Oxford, Clarendon Press, 1993); G Beck, The Legal Reasoning of the Court of Justice of the EU (Oxford, Hart Publishing, 2013). 93 Case C-149/10 Zoi Chatzi v Ipourgos Ikonomikon [2010] ECR I-8489, para 43; see also Case C-403/99 Italian Republic v Commission [2001] ECR I-6883, para 37. 94 [2010] ECR I-8489. 95 Joined Cases C-402/07 and C-432/07 Christopher Sturgeon v Condor Flugdienst GmbH and Stefan Böck and Cornelia Lepuschitz v Air France SA [2009] ECR I-10923. 96 Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC [1996] OJ L145/4. 89 90

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had wide discretion as regards the regulation of parental leave and that they were under no obligation under the Union measure to provide for twice the amount of normal leave.97 However, it proceeded to recognise an (unwritten) positive action requirement incumbent on national legislatures when exercising their discretion to accommodate the special situation of twins, derived from the constitutional principle of equality: [C]lause 2.1 of the Framework Agreement is not to be interpreted as requiring the birth of twins to confer entitlement to a number of periods of parental leave equal to the number of children born. However, read in the light of the principle of equal treatment, this clause obliges the national legislature to establish a parental leave regime which, according to the situation obtaining in the Member State concerned, ensures that the parents of twins receive treatment that takes due account of their particular needs.98

In Sturgeon, the Court had to rule on whether Regulation 261/200499 on air carrier liability gave passengers a right to compensation for flights subject to long delays. While this Regulation provided for automatic compensation to passengers whose flights had been cancelled, it made no equivalent provision for compensation for delayed flights. In the latter eventuality, air carriers were instead placed under an obligation to offer assistance in the form of free meals, telephone calls, accommodation etc. The Court began by observing that it does ‘not expressly follow from the wording’ of the Regulation that passengers whose flights are delayed have a right to compensation. However, basing itself on the Regulation’s objective of ensuring a high level of protection for air passengers and the principle of equal treatment, the Court found that passengers who suffer a delay of three or more hours are nevertheless entitled to compensation: Given that the damage sustained by air passengers in cases of cancellation or long delay is compar able [namely, a loss of time], passengers whose flights are delayed and passengers whose flights are cancelled cannot be treated differently without the principle of equal treatment being infringed. That is a fortiori the case in view of the aim sought by Regulation No 261/2004, which is to increase protection for all passengers. In those circumstances, the Court finds that passengers whose flights are delayed may rely on the right to compensation laid down in Article 7 of Regulation No 261/2004 where they suffer, on account of such flights, a loss of time equal to or in excess of three hours, that is to say when they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier.100

Notably in Sturgeon, the Court of Justice could be said to be testing the outer limits of the technique of reading Union legislation in a particular way to ensure compliance with European constitutional rights and principles, offering a construction of the pertinent legal rules that was not quite plausibly founded upon the text or attributable to the intentions of the Union legislature. Indeed, in her Opinion in that case, Advocate General Sharpston suggested that the issue could not be ‘fixed’ by interpretation, however constructive, and called upon the Court to invite submissions from the Union institutions and the Member 97 In her Opinion, AG Kokott did find that the Union measure granted an entitlement to parental leave of at least three months (the minimum stipulated by the measure) for each twin. 98 Zoi Chatzi (n 93) para 75. 99 Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2011 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights [2004] OJ L46/1. 100 Sturgeon (n 95) paras 60–61.

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States to decide whether the distinction in the Regulation between cancellation and delay fell foul of the principle of equal treatment (which she believed to be the case), with the upshot that the relevant provision should be annulled.101 As mentioned, the willingness of the Court to render decisions that judicially amend European legislative acts to ensure that they fully respect the Union’s constitutional charter is a relatively recent phenomenon. The entry into force of the Lisbon Treaty appears to have been an important catalyst in this regard.102 With this treaty, the European Charter of Fundamental Rights acquired binding force and this document is said to have ‘improved the centrality and weight of fundamental rights, reinforcing both their visibility in the legal discourse of the Court and their role as parameters of constitutionality’.103 Advocate General Cruz Villalón, for instance, has argued that it has become ‘imperative’ to interpret Union legislative measures in the light of the rights guaranteed by the Charter (the same applies, one may surmise, as regards other acts adopted by the European institutions or bodies).104 For national courts contemplating sending a preliminary reference and for those enjoying direct access to the Court, the Charter provides additional ammunition when it comes to filing successful challenges against acts adopted by the EU institutions and by the Member States. Importantly, these players may today also have more incentives to contest the validity of European legislation, including on fundamental rights grounds, given that the Union is progressively becoming active in areas in which such rights are particularly relevant, such as criminal law, immigration and asylum law. In addition, the Court is now competent to take cognisance of virtually all claims asserting the invalidity of measures adopted in the area of freedom, security and justice,105 after the Treaty of Lisbon removed previous limitations on its jurisdiction to review such acts.106 In sum, the fact that the Court of Justice has begun to deliver judgments that impose a particular interpretation of European legislative acts to ensure that these comport with the Union’s constitutional charter could be a sign of it becoming more active in controlling the Union legislature. Such an outcome may be welcomed, given that the Court has in the past often been criticised for being overly deferential vis-à-vis the European legislature. At the same time, some caution may be in order as regards this particular way of reinvigorating its role as a check on the legislature, in line with the remarks made earlier when discussing the appropriateness of national constitutional courts reading statutes in harmony with the constitution to 101 Opinion of AG Sharpston in Sturgeon (n 95). The validity of the Regulation on air carrier liability in the light of the principle of equal treatment had been unsuccessfully challenged by the airlines in Case C-344/04 R, on the application of International Air Transport Association (IATA) and European Law Fares Airline Association (ELFAA) v Department for Transport [2006] ECR I-403. 102 The judgment in Sturgeon was delivered two weeks before the Charter of Fundamental Rights became legally binding; the ruling in Zoi Chatzi after the Charter had come into force, with the referring national court in the latter case also explicitly inquiring about the impact of the Charter in establishing the correct meaning of the pertinent legal provisions. 103 S Iglesias Sánchez, ‘The Court and the Charter: The Impact of the Entry into Force of the Lisbon Treaty on the ECJ’s Approach to Fundamental Rights’ (2012) 49 CML Rev 1565, 1576 (emphasis omitted). 104 Opinion of AG Cruz Villalón in Case C-306/09 IB v Conseil des ministres [2010] ECR I-10341, para 44. 105 The Court cannot, however, review the validity or proportionality of operations by the police or law enforcement authorities with a view to maintaining law and order and safeguarding internal security according to Art 276 TFEU. 106 There is still a temporary restriction on the Court’s competence to receive questions submitted by national courts regarding the validity of measures adopted under what used to be the Third Pillar (dealing with police and judicial cooperation in criminal matters): until 1 December 2014, it is only competent to adjudicate such questions if the Member State in which the referring court is located has accepted the Court’s jurisdiction to do so: Protocol (No 36) on transitional provisions [2010] OJ C83/322, Art 10(1) and (3).

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avoid striking them down.107 While offering a reconstruction of Union legislative measures may be considered preferable to delivering a decision annulling legislative provisions, notably in political or otherwise sensitive cases, allegations of judicial activism may be invited through the back door depending on the degree of judicial creativity displayed. Parenthetically, mention should also be made of the European doctrine of consistent (or harmonious) interpretation, which is about ensuring the conformity of national law with EU law. Pursuant to this doctrine, national courts and other authorities responsible for executing EU law are required to read national law in the light of Union law. The duty of consistent interpretation has been elaborated by the Court of Justice in its case law and is rooted in the duty of loyal cooperation laid down in Article 4(3) TEU.108 A helpful summary of the role of this principle in the Union legal order and what it demands of national judges and administrative bodies can be found in Dominguez:109 23. It should be stated at the outset that the question whether a national provision must be disapplied in as much as it conflicts with European Union law arises only if no compatible interpretation of that provision proves possible. 24. In that regard, the Court has consistently held that when national courts apply domestic law they are bound to interpret it, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive . . . This obligation to interpret national law in conformity with European Union law is inherent in the system of the Treaty on the Functioning of the European Union, since it permits national courts, for matters within their jurisdiction, to ensure the full effectiveness of European Union law when they determine the disputes before them. 25. It is true that this principle of interpreting national law in conformity with European Union law has certain limitations. Thus the obligation on a national court to refer to the content of a directive when interpreting and applying the relevant rules of domestic law is limited by general principles of law and it cannot serve as the basis for an interpretation of national law contra legem. ... 27. [I]t should be noted that the principle that national law must be interpreted in conformity with European Union law also requires national courts to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that the directive in question is fully effective and achieving an outcome consistent with the objective pursued by it. (internal references omitted)

The principle of consistent interpretation is thus intended to safeguard the effet utile of EU law110 and enforce the higher authority of Union law over national law, in line with the 107 The Court’s preference for putting forward a particular interpretation of a Union measure to ensure its conformity with the EU’s constitutional charter instead of declaring such measures void may also stem from the way in which constitutional issues are presented to it. Many cases, including Sturgeon and Zoi Chatzi, reach the Court through the preliminary reference procedure, with the national court asking for guidance regarding the interpretation of certain provisions of Union legislative instruments, while not challenging their validity (a possibility that is provided for). In such instances, the Court of Justice would in any event deliver ‘interpretative’ preliminary rulings. 108 See Case 14/83 Sabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen [1984] ECR 1891. 109 Case C-282/10 Maribel Dominguez v Centre informatique du Centre Ouest Atlantique, préfet de la région Centre [2012] ECR I-0000. 110 The CJEU attributes considerable significance to a construction of EU norms that guarantees their effectiveness, stating as a general interpretational principle that ‘where a provision of [Union] law is open to several inter pretations, preference must be given to that interpretation which ensures that the provision retains its effectiveness’.

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cardinal doctrine of the supremacy of EU law.111 Its raison d’être is linked to the existence of a hybrid model of constitutional adjudication in the European Union and the division of labour between the Court of Justice and national courts: as we saw in chapter three, the former lacks the power to interpret national statutes or rule on their compatibility with the Union’s constitutional charter.112 These issues are to be decided by national courts and the doctrine of harmonious interpretation has accordingly been crafted to fit, and cater to, the practical needs of the European legal order and facilitate the attainment of the aims just mentioned.

V. TYPES OF JUDGMENT AND THEIR EFFECTS

This final section is dedicated to an examination of the various types of judgments that constitutional courts can render at the tail end of the adjudicatory process, and the consequences that such decisions can produce. In line with the approach commonly adopted by the applicable legal rules regulating such issues, the discussion is organised along a binary distinction between constitutional courts upholding a statute (section A) and finding that a statute is in breach of the constitution (section B).113 We will see, however, that most courts have displayed some judicial creativity when it comes to the types of decision they hand down and the temporal effects thereof, so that the actual constitutional praxis is more sophisticated than the above dichotomy suggests. Lastly, the European legal framework governing these matters will be considered (C).

A. Decision to Uphold the Statute At the close of a procedure involving an assessment of the compatibility of legal provisions with the relevant constitutional benchmark, the constitutional court in a great many cases will decide to uphold the statute and reject the objections brought to bear against it. Judgments to this effect have generally binding force – so-called erga omnes effects – in the preponderance of jurisdictions under examination, namely in the Czech Republic,114 France,115 Germany,116 Hungary,117 Poland118 and Spain.119 The legal framework governing the Belgian Cour constitutionnelle, however, distinguishes between the effects of decisions delivered in the context of abstract constitutionality challenges and rulings handed down in response to preliminary questions. The former have binding force for all regular courts 111 As such, it can be considered the European version of the normal legal technique of interpreting lower acts in accordance with higher-ranking legal norms. 112 For more detail, see ch 3, section IV-B. 113 To be clear, the focus will be on judgments dealing with the merits of the case and hence not on rulings dismissing applications for constitutional review on procedural grounds. 114 Czech constitution, Art 89(2). 115 French constitution, Art 62. 116 Law on the Bundesverfassungsgericht, Art 31. 117 Act CLI of 2011 on the Constitutional Court, Art 39(1). 118 Polish constitution, Art 190(1). 119 Organic Law 2/1979 on the Constitutional Tribunal, Art 38(1); Organic Law 6/1985 on the judiciary, Art 5(1), which obliges courts to follow the interpretation of constitutional provisions and principles set out in judgments of the Tribunal Constitucional.

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with respect to the points of law settled by those rulings,120 while the latter are formally speaking only binding for the judge who raised the question and for other courts asked to decide the same case on appeal.121 As regards the effects of judgments of the Italian Corte costituzionale, the decisive criterion is not the procedure used to attack a given piece of legislation, but whether the claim that the pertinent provisions are unconstitutional is accepted or rejected.122 Claims asserting that a particular statute infringes the constitution are typically brought before the Corte costituzionale by means of a preliminary reference, and judgments rejecting such claims (so-called sentenze di rigetto) only bind the referring judge in the case before her and, even then, only as regards the grounds adduced in the referral.123 The decision to reject the objections voiced against a statute or some of its provisions does not necessarily mean, however, that the impugned legal norm has been given a completely clean bill of health. For one, the constitutional court can be asked to conduct another evaluation of the law, either reviewing the constitutionality of articles other than those already examined or assessing the law on different grounds.124 For another, we saw in the previous section that all constitutional courts engage, to a lesser or greater extent, in constitution-conform interpretation. This legal technique is often used when judges consider that the impugned rules are in some way constitutionally deficient or problematic, but believe that it is possible to construe these rules in such a way that they are fully compatible with the constitution. In such instances, the court avoids the conclusion that (part of) the statute should be struck down, but the statute does not make it through the review process unscathed: the decision to uphold the statute is conditioned by interpretative reservations, which must be respected by the regular courts and administrative authorities when applying the statute. A further decisional modality that should be mentioned here is peculiar to the Bundesverfassungsgericht and the Corte costituzionale. Both courts have recognised that they have the ability to hand down decisions of temporary constitutionality, which state that the contested law as yet comports with the constitution, but will soon cease to do so – or is only just within constitutional boundaries – and accordingly appeal125 to the legislature to take action to achieve a fully constitutional state of affairs. The Bundesverfassungsgericht for the first time held that a law was ‘still constitutional’ (noch verfassungsmäßig) in 1955 when 120 Special Act on the Constitutional Court, Art 9(2). Further preliminary references are thus possible, provided these do not concern points of law already settled by the Cour constitutionnelle in earlier decisions. See eg judgment no 53/99 of 26 May 1999; judgment no 80/99 of 30 June 1999; judgment no 52/2006 of 19 April 2006. 121 Special Act on the Constitutional Court, Art 28. In addition, such preliminary rulings release other courts from the obligation of engaging the Cour constitutionnelle through sending preliminary references insofar as they follow these judgments: Special Act on the Constitutional Court, Art 26(2)(2). Should a regular court disagree with the Cour constitutionelle’s findings, it is required to re-submit the matter to the latter by making a preliminary reference. 122 To be clear, in the latter scenario, the Corte costituzionale technically does not endorse the statute as compatible with the constitution, but only rejects the request to strike it down based on the arguments included in the reference: see sentenza 7/1958 of 24 January 1958. 123 See section III above. 124 This has only been possible in France following the 2008 constitutional reform that introduced the prelim inary reference procedure, as the Conseil constitutionnel could initially only review legislation for its constitutionality before adoption, and was not able to receive challenges to laws that had been promulgated. The Conseil constitutionnel granted a small exception to the basic rule in Décision no 85-187 DC Loi relative à l’état d’urgence en Nouvelle-Calédonie et dépendances, where it held that promulgated laws could be challenged on the occasion of an examination of legislative provisions that modify, complement or affect their scope, but it stated that this was not possible as far as the simple application of the law was concerned (para 10). 125 For this reason, such decisions have also been called ‘appeal’ decisions (or Appellentscheidungen in German).

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reviewing the validity of the Saar Statute.126 While this Statute did not fully cohere with the German Basic Law, it was considered a step in the right direction and, as such, more desirable from a constitutional viewpoint than the status quo ante: A legal finding of unconstitutionality is excluded in principle by the fact that the situation created by the treaty is ‘closer to the Basic Law’ than the previously existing one. If only a treaty arrangement in full accord with the Basic Law were to be counted as constitutional, that would mean advocating a constitutional rigorism which could be encapsulated in the following sentence: the bad may not give way to the better, because the best (or from this viewpoint, the sole good) is not attainable. This cannot be desired by the Basic Law.

A variation of this line of reasoning can be identified in an early judgment on overhang mandates, where the Bundesverfassungsgericht found that the law drawing the boundaries of electoral districts was still tolerable, in order to avoid a legal lacuna and the potential chaos this would entail for the results of past parliamentary elections by ruling that the statute should be struck down.127 The German court has also been motivated to render decisions of temporary constitutionality when it is clear that the law under review requires revision in light of changes to the social environment or values and norms.128 The appeal to the legislature to take action has binding force and the Bundesverfassungsgericht in some cases sets a deadline by which the legislature should carry out the necessary reforms. The Corte costituzionale has delivered rulings of temporary constitutionality in largely the same kinds of cases, including those where striking down the statute would only aggravate matters, those involving laws of temporary duration,129 or to enable Parliament to deal with a particularly urgent situation. A good example is offered by sentenza 15/1982, where the Corte costituzionale was asked by various regular courts to review the constitutionality of a law extending the maximum period of preventive detention.130 Although this law was in tension with several constitutional guarantees, the Italian court emphasised that its adoption was prompted by an urgent need to protect the democratic order and public safety against a wave of terrorist and subversive acts. This existence of a ‘state of emergency’ moved the Corte costituzionale to uphold the law, but at the same time, it nudged the legislature towards reform: ‘[A state of emergency] is a condition that is certainly unusual and grave, but also essentially temporary. It follows that it legitimises, yes, unusual measures, but they lose their legitimacy if unjustifiably prolonged over time.’131 Decisions of temporary constitutionality belong to the group of so-called ‘follow-up judgments’ (doppia pronuncia): the Corte costituzionale rejects the challenge brought against a law while simultaneously calling upon the legislature to take action, and this initial judgment serves as the basis for the Italian court to subsequently declare the law unconstitutional following a second request for review if the legislature has failed to make amends. While judgments of temporary constitutionality may serve a practical need, they also have their short comings. It has been poignantly argued that BVerfG 4, 157 (1955). BVerfG 16, 130 (1963), in which the Bundesverfassungsgericht stated: ‘The unconstitutionality of the drawing of the boundaries of electoral district was, however, on 17 September 1961 [the day that elections for the Bundestag took place] not yet so clearly evident, that this must already be considered as invalid at that point in time.’ 128 See eg BVerfG 39, 169 (1975) on the question of entitlements to survivors’ pensions for widowers and widows and the earlier ruling that the legislation was compatible with the Basic Law: BVerfG 17, 1 (1963). 129 eg sentenza 112/1993 of 24–26 March 1993. 130 Sentenza 15/1982 of 1 February 1982. 131 ibid, at 7. 126 127

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these decisions convey the message that Parliament was justified, if only marginally, in passing the law. To declare a statute constitutional is often to impart legitimacy on it – legitimacy that may reduce pressure to reform or amend the law. As qualified as they are, declarations of ‘temporary constitutionality’ may be counterproductive because they send a mixed message: The law ought to be fixed, but there is no rush.132

This last point can be accommodated by setting a deadline for legislative intervention, but satisfactorily addressing the first point is more difficult – which may explain why the Bundesverfassungsgericht and the Corte costituzionale use this type of decision sparingly.

B. Findings of Unconstitutionality Having examined the ways in which constitutional courts can uphold statutes and the effects of doing so, we must now address the converse situation and asks what happens if the judges find that the law under review impinges upon constitutional rules and prin ciples. This will be done, first, by exploring the general consequences attendant upon a successful challenge, including the possibility of striking down only part of the contested legislation (section i). Next, the temporal effects of findings of unconstitutionality are examined, whereby attention will also be devoted to the possibility of deferring the date on which the annulment takes effect (section ii). It will further be explained that several constitutional courts have accepted the power to render decisions declaring that a law does not comport with the constitution, without however invalidating it (section iii). i. General Features: Legal Effects, Partial Annulment and the Inclusion of Legislative Guidelines As a rule, decisions of unconstitutionality entail the elimination of the impugned statute from the legal system and hence the loss of its legal effectiveness – although some courts have severed the seemingly inevitable link between finding that a statute is unconstitutional and its removal from the statute books, as we shall see later. Decisions invalidating legislation enjoy erga omnes effects in all the legal systems under study,133 Belgium being the only exception as far as preliminary rulings are concerned.134 When the Cour constitution132 W Nardini, ‘Passive Activism and the Limits of Judicial Self-Restraint: Lessons for America from the Italian Constitutional Court’ (1999) 30 Seton Hall Law Review 1, 29. 133 For the Czech Republic, Czech constitution, Art 89(2); for France, French constitution, Art 62, Décision no 88-244 DC of 20 July 1988 and Décision no 62-18L of 16 January 1962; for Germany, Law on the Bundesverfassungsgericht, Art 31 and BVerfG 37, 217 (1974); for Hungary, Act CLI of 2011 on the Constitutional Court, Art 39(1) stating that decisions of the constitutional court are binding on everyone unless otherwise provided for; for Italy, Italian constitution Art 136(1) and Law no 87/1953, Art 30(3); for Poland, Polish constitution, Art 190(1); for Spain, Spanish constitution, Art 164(1) and Organic Law 2/1979 on the Constitutional Tribunal, Art 87. The binding force of judgments delivered by the Czech Ústavní Soud has not always or fully been accepted by the regular courts, notably the two supreme courts, although the former has been adamant that the binding nature of its judgments ‘represents the conditio sine qua non of the constitutional judiciary’: judgment III ÚS 425/97 of 2 April 1998, Binding force of constitutional court judgments. See also judgment IV ÚS 81/95 of 18 September 1995, Objection of conscience, in which the constitutional court held that it expected that its principled decisions on fundamental rights issues delivered in the context of the constitutional complaint procedure ‘will serve for the ordinary courts’ future decision-making as a guideline’. See further J Prˇibánˇ , ‘Judicial Power vs Democratic Representation: The Culture of Constitutionalism and Human Rights in the Czech Legal System’ in Sadurski (ed), Constitutional Justice, East and West (n 1) 380–81. 134 Judgments delivered in the context of abstract constitutionality challenges do have effects erga omnes: Special Act on the Constitutional Court, Art 9(1).

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nelle declares, in response to a question submitted by an ordinary court, that a statute is unconstitutional, this finding is formally only binding on the court that made the reference (and other judges who may later be called upon to adjudicate the same case). Its effects, however, extend beyond the particular case that prompted the ordinary judge to consult the Belgian constitutional court, in that such rulings release other judges from the obligation to make use of the preliminary reference procedure to send the same constitutional question to the Cour constitutionnelle.135 Further, while preliminary rulings do not remove the offending statute from the legal order – it is for the legislative assembly of the relevant echelon to draw the necessary consequences136 – they do trigger a new six-month time limit within which eligible public institutions and persons with a justifiable interest can bring abstract constitutionality challenges against the objectionable legal norm, which would enable the Cour constitutionnelle to strike it down with general effect.137 Considerations of deference and respect for the democratic credentials of the legislature dictate that the constitutional court should refrain from invalidating more of a statute than is necessary.138 If only part of a given piece of legislation is constitutionally repugnant, the judges should consider whether the objectionable provisions are severable from the other clauses and, in the event of an affirmative answer, declare that only the former are unconstitutional and uphold the remainder of the statute.139 To be clear, when severability is not possible – typically because the unconstitutionality affects a central part of the statute or because the unobjectionable provisions would have no independent significance – annulment of the whole statute will still be warranted.140 All the constitutional courts canvassed in this book have the competence to strike down a portion of the law, in addition to being able to declare its total invalidation, and in practice decisions partially invalidating the legislation under review are quite common.141 It should be acknowledged that partial annulment may entail constitutional courts changing the scope and meaning of the underlying law. As such, these courts can, by striking down particular provisions or phrases thereof, achieve an effect similar to when they engage in constitution-conform interpretation – they cure the statute’s defects by effectively amending it. The main difference can be found in the way that the decision is framed: in the latter case, the law is upheld, subject to compliance with the particular interpretation ascribed to it; while in the former case, the law is quashed as unconstitutional ‘insofar as’ it applies to, or fails to accommodate, certain situations. An example may be useful to illustrate this point. In its Decision no 64/2009, the Belgian Cour constitutionnelle had to review 135 This is known as the ‘reinforced relative authority’ (versterkt relatief gezag van gewijsde) of preliminary rulings in the literature; see now also judgment no 125/2011 of 7 July 2011 at B.5.1. 136 See judgment no 8/97 of 19 February 1997. 137 Special Act on the Constitutional Court, Art 4. For a discussion of the rules on standing to bring abstract constitutionality challenges, see ch 3, section III-A(i)(b) and (c). 138 Another relevant factor is how the challengers or the national court have framed their petition (ie whether they attack the legal norm in its entirety or only particular provisions) and whether the constitutional court is able to examine the constitutionality of provisions that have not been included in the petition. 139 A more general discussion of the technique of severability, illustrated with examples from the US constitutional context, can be found in DH Gans, ‘Severability as Judicial Lawmaking’ (2008) 76 George Washington Law Review 639. 140 For an example, see BVerfG 65, 325 (1983). 141 For Belgium, Special Act on the Constitutional Court, Art 8(1); for the Czech Republic, Act on the Constitutional Court, § 70(1); for France, Ordinance 58-1067 on the Constitutional Council (as amended), s 22 and 23, Décision no 85-197 DC of 23 August 1985 and Décision no 2003-468 DC of 3 April 2003; for Germany, see eg BVerfG 65, 325 (1983) and BVerfG 62, 117 (1982); for Hungary, Act CLI of 2011 on the Constitutional Court, Art 4(1); for Poland, Constitutional Tribunal Act, Art 164(2).

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a law that outlawed discrimination on a number of exhaustively enumerated grounds.142 Two unions and two affected individuals filed abstract constitutionality challenges and submitted, amongst other things, that the legislation unjustifiably failed to include ‘union beliefs’ on the list of prohibited grounds of discrimination. The Belgian court agreed and struck down the provisions of the law setting forth the disputed list, ‘but only insofar as they do not comprise union beliefs within the protected criteria’.143 It thereby, in effect, added a further ground to the anti-discrimination law and instructed the regular courts to enforce the law thus modified, in anticipation of legislative change.144 It is interesting to see that the German and Italian constitutional courts have recognised different kinds of decisions by which they partially strike down the statute referred for review. In its case law, the Bundesverfassungsgericht has accepted two forms of partial invalidation of legislative provisions. On the one hand, it can – similar to its colleagues in other jurisdictions – annul certain clauses or sentences of a law, in what has been referred to as quantitative partial annulment.145 The Bundesverfassungsgericht can, on the other hand, also deliver decisions that entail the so-called qualitative partial annulment of the contested statute. This means that the law is invalid insofar as it would apply to certain factual situations (which are not explicitly identified by this law).146 While the text of the statute remains fully intact, the Bundesverfassungsgericht excises one or more applications thereof to specific case configurations as unconstitutional. Thus, in the Second Degree case, the German court held that: The second degree regulation in § 32 II S. 1 Nr. 5 HRG . . . is void, insofar as the admission to a second degree in medicine is dependent on the prerequisite of [it being] a meaningful addition to the first degree also in the case of applicants which have up to and including the winter semester 1974/75 started such a second degree, trusting in the then existing opportunity to do so.147

Turning to the Corte costituzionale, it should be reiterated that its judgments declaring unfounded the constitutional doubts voiced about a law do not have erga omnes effects. This also includes interpretative judgments that reject the constitutional reservations expressed by a regular court in its requests for preliminary rulings and simultaneously indicate what the constitutional court considers to be the correct reading of the law referred for review.148 For this reason, the Corte costituzionale prefers to deliver rulings that declare the contested legal provisions unconstitutional – which are generally binding – and it has devised a wide range of what are known as ‘manipulative decisions’ (sentenze manipolative).149 Such judgments do not simply strike down a statute or a part thereof, 142 Judgment no 64/2009 of 2 April 2009. For a more detailed description of the Belgian constitutional case law and the various modalities of partial annulment (including ratione materiae, ratione loci and ratione tempori), see eg R Moerenhout, ‘Bijzondere Wet 6 januari 1989 Art 8’ in Publiek Procesrecht (Antwerp, Kluwer, 1999). 143 In an earlier judgment, the Cour constitutionnelle struck down the entire list of prohibited discrimination grounds due to the omission of language and political beliefs: judgment no 157/2004 of 6 October 2004. This decision is discussed by J Velaers, ‘Het Arbitragehof en de antidiscriminatiewet’ [2004] Tijdschrift voor bestuurswetenschappen en publiekrecht 601. 144 See in particular B.8.17. 145 Also known as ‘reduction of the wording of the norm’ (Reduzierung des Wortlauts des Norm(en)): see eg K Schlaich and S Korioth, Das Bundesverfassungsgericht: Stellung, Verfahren, Entscheidungen, 8th edn (Munich, CH Beck, 2010) 246. 146 ibid with further references. 147 BVerfG 62, 117 (1982), adapted from Schlaich and Korioth, Das Bundesverfassungsgericht (n 145) 247. 148 See section III above. 149 See eg M Bellocci and T Giovannetti, Il quadro delle tipologie decisorie nelle pronunce della Corte costituzionale, Report prepared for the visit of the Hungarian constitutional court on 11 June 2010 and available on the website of the Corte costituzionale.

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but also modulate the impact of the finding of unconstitutionality. Three types of manipulative judgments can be considered to involve partial annulment affecting the substance of the law and will accordingly be considered here; we will encounter other kinds of sentenze manipolative in the pages that follow. First, with an ablative decision (sentenza ablativa), the Corte costituzionale invalidates a portion of the law ‘to the extent that’ it brings about a particular situation and thus abrogates the objectionable statutory provisions. Second, substitutive judgments (sentenze sostitutive) entail the Corte costituzionale replacing part of the original provision that would produce an unconstitutional outcome with content of its own making so as to achieve a result that is in harmony with the constitution.150 Third, by means of an additive ruling (sentenza additiva) the Corte costituzionale declares that a statute is unconstitutional ‘insofar as it does not’ provide for a certain rule and effectively adds the missing provision itself, thereby rectifying a legislative omission.151 For example, when asked about the constitutionality of a law granting extraordinary paid leave to various cohabitating family members of seriously disabled persons, the Italian court found that: Article 42(5) of legislative decree No 151 of 26 March 2001 . . . is unconstitutional, insofar as it does not include cohabiting children amongst the category of individuals entitled to take the leave provided for therein, in the absence of other individuals capable of caring for a person affected by a serious handicap.152

By employing the last type of judicial fix, the Corte costituzionale in the 1960s and 1970s regularly extended the scope of welfare legislation to overcome violations of the equality principle. Its decisions to that effect had significant financial ramifications.153 In later years, the Corte costituzionale has accordingly circumscribed the use of additive judgments. In particular, it will now only issue additive decisions that insert ‘obligatory verses’ (rime obbligate) into the statute, that is to say, introduce clauses that are absolutely necessary and inherent in the relevant normative context: [A]n additive decision is permitted, in line with established case law, only when an adeguatrice solution is not the result of a discretionary assessment, but necessary to achieve a judgment that is legitimate in that the Corte in reality proceeds to a logical extension which is necessary and often implicit in the interpretive potentiality of the normative context in which the contested norm is inserted. Where, on the other hand, a plurality of solutions are present, deriving from various possible assessments, the intervention of the Corte is not admissible, since it is exclusively for the legislature to choose [among them].154

Constitutional courts do not always limit themselves to striking down a law or a portion thereof. Their decisions invalidating particular statutory provisions can incorporate guidelines or contain admonitions that the legislature is expected to heed when drafting a new statute. Such instructions can have a temporal dimension, whereby the constitutional court calls upon the legislature to adopt a law that comports with the constitution within a certain period of time. The formula commonly used in this respect is that legislative See eg sentencia 27/2005 of 12 January 2005; sentencia 15/1969 of 12 February 1969. The Corte costituzionale will not, however, insert missing provisions into criminal statutes where this would expose individuals to greater criminal liability: sentenza 467/1991 of 16–19 December 1991. 152 Sentenza 19/2009 of 26 January 2009. (my translation). 153 Nardini, ‘Passive Activism and the Limits of Judicial Self-Restraint’ (n 132) 20–25; Groppi, ‘The Italian Constitutional Court’ (n 38) 114. 154 Sentenza 109/1986 of 22 April 1986, considerato in diritto 3. (my translation). 150 151

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intervention should take place ‘within a reasonable time’. At times, constitutional courts have even set a specific deadline and declared that in the event of legislative inactivity, it will be for regular judges to fill the resultant legal vacuum. In such instances, they occasionally also stipulate guidelines or criteria that should be applied by regular judges when deciding cases to which the invalidated law would otherwise have been applicable.155 An interesting, and notorious, example is the 2006 judgment of the Czech constitutional court in what is known as the ‘rent control saga’. At issue was the adjustment of rental rates for apartments to bring these in line with the market value of the properties, thereby terminating the system of rent control that had been in place during the Communist era. In 2000, the Ústavní Soud found that a ministerial decree providing for an increase in rental prices breached the constitution, but delayed the effects of its decision to give the legislature the opportunity to enact a new measure.156 After two more judgments striking down similar decrees and exhorting the legislature to act,157 the Ústavní Soud decided in its 2006 ruling that in the face of persistent legislative inertia, it would now be for the regular judiciary to ensure respect for the relevant constitutional principles: The flagrant consequence of the legislature’s inactivity lead [sic] the Constitutional Court, being aware of its position as the body for protecting constitutionality, to the necessity of replacing the instruments for legal protection of landlord which are lacking at the level of ‘ordinary’ law by applying the principles of constitutional law regulation . . . [T]he Constitutional Court, in its role of protector of constitutionality, cannot limit its function to the mere position of a ‘negative’ legislature, and must, in the framework of a balance of the individual branches of power characteristic of a law-based state founded on respect for the rights and freedoms of man and citizens, create space for the preservation of the fundamental rights and freedoms. Therefore, the general courts, even despite the absence of the envisaged specific regulations, must decide to increase rent, depending on local conditions, so as to prevent the abovementioned discrimination [ie, between landlords with market income from leases and those with rental rates set in the past by the administration]. In view of the fact that such cases will involve the finding and application of simple law, which is not a matter for the Constitutional Court, as it has repeatedly emphasised in its case law, the Constitutional Court refrains from offering a specific decision-making procedure and thereby replacing the mission of the general courts. It merely states that it is necessary to refrain from arbitrariness; a decision must be based on rational arguments and thorough weighing of all the circumstances of a case, the application of natural principles and the customs of civic life, the conclusions of legal learning and settled, constitutionally consistent court practice.158

155 See eg sentencia 36/1991 of 14 February 1991 of the Spanish Tribunal Constitucional, in which it was asked to review the constitutionality of legislation regarding criminal proceedings involving minors at FJ 5–6; or Decision 2 BvR 1057/91 (1998) of the Bundesverfassungsgericht, in which the German court insisted on the need for equal treatment as regards tax advantages for married parents with children on the one hand, and single and cohabitating parents with children on the other hand. 156 Judgment Pl ÚS 3/2000 of 21 June 2000, Rent Control I. 157 Judgment Pl ÚS 8/02 of 20 November 2002, Rent Control II; Judgment Pl ÚS 2/03 of 19 March 2003, Rent Control III. 158 Judgment Pl ÚS 20/05 of 28 February 2006, Rent Control IV under G. Since then, several individuals have complained about the situation to the European Court of Human Rights, alleging that the rent-control scheme impinges upon their right to property under Art 1 of Protocol 1 to the ECHR, and that the Czech court system is unable to provide adequate protection of the constitutional rights of landlords, in violation of Art 13 of the Convention (guaranteeing the right to an effective remedy): Morawetz, Hlavácˇek, Hlavácˇek and Art 38 a.s. v Czech Republic App nos 11179/06, 11163/06 and 1458/07.

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Alternatively, or additionally, the constitutional judges can formulate substantive requirements with which the new statute must comply in order to pass constitutional muster.159 Here again we should mention the Italian constitutional court. In view of the (financial) drawbacks associated with sentenze additive, the Corte costituzionale from the mid-1990s onwards began to issue a slightly different kind of additive decision, the so-called principle-additive judgments (sentenze additive di principio). These do not add new norms to the statute, but specify the guiding principles that the legislature must concretise into specific rules when amending or replacing the measure that has been declared unconstitutional.160 ii. Timing and the Possibility of Deferring Annulment to a Later Date To appreciate the impact of findings of unconstitutionality, it is also important to consider their temporal effects. Two points of departure are possible. Ex tunc annulment entails the retroactive eradication of the unconstitutional statute from the legal system, with concomitant consequences for acts adopted on the basis of the rule that has now been invalidated. As a rule, such acts include decisions of regular judges that conclusively settle the legal rights and obligations of the parties to the proceedings – or in other words, judgments which have the force of res judicata. Alternatively, ex nunc annulment means that the statute loses its validity with prospective effect typically from the date of publication of the judgment. As a general rule, decisions of the Belgian, French, German, Italian and Spanish constitutional courts declaring legal norms unconstitutional have ex tunc effects.161 Those adopted by their colleagues in the Czech Republic, Poland and Hungary in principle invalidate constitutionally offensive provisions ex nunc.162 Having said that, none of the European countries under study subscribe to either ex tunc or ex nunc annulment in its pure form, and various modifications are accordingly provided for. On the one hand, constitutional courts in States that adhere to the former point of departure may be competent to stipulate that certain effects produced by the invalidated measure are to be maintained (Belgium);163 159 Consider, for example, Bundesverfassungsgericht: BVerfG 39, 1 (1975) Abortion I and BVerfG 33, 303 (1972) Numerus Clausus I; Spanish Tribunal Constitucional: sentencia 49/1988 of 22 March 1988 at FJ 18 and sentencia 71/1990 of 5 April 1990 at FJ 4; Czech constitutional court: Judgment Pl ÚS 4/94 of 12 October 1994, Anonymous Witness. 160 See eg sentenza 185/1998 of 26 May 1998, discussed by T Groppi and C Meoli, ‘Décisions “additives de principe”’ in Bon and Maus (eds), Les grandes décisions des cour constitutionnelles européennes (n 43). While the Corte costituzionale usually requires legislative intervention with reference to the principles it has indicated in its judgment, there are also cases where it has considered that these principles can be directly applied by the regular judiciary, thereby blurring the distinction between sentenze additive and sentenze additive di principio. 161 For Belgium, Special Act on the Constitutional Court, Art 8 dealing with the effects of abstract constitutionality challenges, which the Cour constitutionnelle applies by analogy to its preliminary rulings (judgment no 125/2005 of 7 June 2011); for Germany, Law on the Bundesverfassungsgericht, Art 78; for Italy, Law no 87/1953, Art 30(3); for Spain, Organic Law 2/1979 on the Constitutional Tribunal, Art 39. In France, if the Conseil constitutionnel concludes that legislative provisions that have been adopted by Parliament but not yet promulgated do not comport with the bloc de constitutionnalité, these cannot be promulgated or implemented: French constitution, Art 62. 162 For the Czech Republic, Act on the Constitutional Court, § 71(2) and (4); for Hungary, Act CLI of 2011 on the Constitutional Court, Art 45(1) and (3). 163 Special Act on the Constitutional Court, Art 8(2). Although this provision is technically only applicable to decisions delivered in the context of abstract constitutionality challenges, it is applied by analogy to preliminary rulings: see judgment no 125/2011 of 7 June 2011. In creating this competence, the drafters of the Belgian Special Act were inspired by the European Court of Justice, which had also been given this power. For more discussion, see A Alen and K Muylle, Handboek van het Belgisch Staatsrecht (Mechelen, Wolters Kluwer, 2011) 535 with further references. This competence is however used sparingly: see Belgian constitutional court, The Relations between the

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to exceptionally decide that an unconstitutional statute should continue to apply for a transitional period in order to avoid legal chaos (Germany);164 or to determine in each case the conditions and limits according to which the effects produced by the quashed provision can be challenged (France).165 Alternatively, it may be the case that there is only a short period following the ruling of the constitutional court within which affected individuals can request the revocation of judgments with the force of res judicata (Belgium);166 or that decisions involving the application of unconstitutional provisions other than those concerning substantive criminal law shall remain intact, unless the case can be reargued under the applicable procedural rules (Italy and Spain).167 Where ex nunc invalidity holds sway as the general rule, affected parties may be able to rely on decisions striking down legal provisions to demand the reopening of various kinds of proceedings (Poland168) or only of criminal cases (Czech Republic169); or they may be prevented from enforcing the rights and obligations stemming from final judgments delivered in the context of civil or administrative litigation (Czech Republic170). In a variation on this theme, the constitutional court may be empowered or even required in some cases to stipulate that its decisions invalidating legal rules produce retroactive effects (Hungary171). As such, we see that notwithstanding differences in the point of departure, the jurisdictions under study are in actual fact not too far apart when it comes to this dimension of judgments handed down by constitutional courts finding that legislation or other measures are in breach of the constitution. The basic rule is that constitutional judgments are enforceable upon their publication or the day thereafter. A question of considerable practical significance is whether constitutional courts can defer the date on which the invalidation takes effect and the unconstitutional Constitutional Courts and the Other National Courts, including the Interference in this Area of the Action of the European Courts, National Report for the XIIth Congress of the Conference of European Constitutional Courts (2002), 82, listing the judgments handed down before 2002 in which the Cour constitutionnelle made use of this possibility. See also judgment no 1/2005 of 12 January 2005, where the constitutional court indicated that in deciding whether to maintain the effects of an annulled provision, it considers the interests of the applicants, the requirements of the proper administration of justice and the interests of other potential litigants. 164 See eg BVerfG 41, 251 (1976) on school regulations and BVerfG 61, 319 (1982) on a tax system allowing for the joint assessment of spouses. 165 French constitution, Art 62. 166 A six-month time limit applies. The relevant rules are laid down in Special Act on the Constitutional Court, Arts 10–18. 167 For Italy, Law no 87/1953, Art 30(4) and Italian constitutional court, Constitutional Justice: Functions and Relationship with the Other Public Authorities, National Report for the XVth Congress of the Conference of European Constitutional Courts (2011), 22; A Pizzorusso, V Vigoriti and G Certoma, ‘The Constitutional Review of Legislation in Italy’ (1983) 56 Temple Law Quarterly 503, 24. For Spain, Spanish constitution, Art 161(1); Organic Law 2/1979 on the Constitutional Tribunal, Art 40(1). The Tribunal Constitucional has further circumscribed the retroactive effects otherwise ascribed to its rulings by equating administrative decisions that can no longer be appealed with civil and administrative judgments that have the force of res judicata (sentencia 45/1989 of 20 February 1989) and by limiting the ability of litigating parties to use extraordinary remedies against final judgments: see eg sentencia 55/1990 of 28 March 1990; sentencia 254/1994 of 15 September 1994. 168 Polish constitution, Art 190(4). 169 This applies only to criminal proceedings that have been concluded with a final judgment, which has not yet been enforced: Act on the Constitutional Court, § 71(1). 170 ibid, § 71(2). 171 The Hungarian constitutional court is obliged to order review of criminal cases if a declaration of unconstitutionality would result in a more favourable outcome for affected individuals: Act CLI of 2011 on the Constitutional Court, Art 45(6). As regards other judgments handed down by regular courts that have acquired the force of res judicata, the Hungarian court has discretion in deciding whether its rulings have consequences for past cases: Act CLI of 2011 on the Constitutional Court, Art 45(5).

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statute loses its binding force.172 The ability to do so can be a useful tool to soften the impact of decisions of unconstitutionality for the political institutions and the legal order as a whole. This may notably be the case for statutes dealing with social or taxation matters that are found to impinge upon the principle of equality, which can have significant financial consequences that may necessitate some form of redistribution of the State budget. Further, invalidating the objectionable legal provisions may not solve the constitutional problem, but in fact exacerbate it, because rights or benefits awarded by the voided statute are lost until a new legislative measure is adopted. To ensure legal continuity and avoid the emergence, albeit temporarily, of a legal gap, constitutional courts may wish to give the legislature time to make the necessary arrangements and delay the moment at which a statute becomes ineffective. The legal frameworks in the Czech Republic, Poland and Hungary expressly empower their constitutional courts to determine that annulment will take effect on a later date.173 It is interesting to note that the power of the Polish Trybunał Konstytucyjny to postpone the date on which a legal act loses its binding force was in fact inspired by budgetary considerations. As will be explained in more detail in chapter seven, before 1997 the decisions of the Trybunał Konstytucyjny were not final and could be overturned by Parliament.174 When the abolition of this override mechanism was debated, the fear was expressed that the immediate enforceability of judgments declaring legal provisions unconstitutional could produce financial mayhem. To grant the legislature some reprieve in making the necessary budgetary arrangements, the Trybunał Konstytucyjny was accordingly given the power to defer the date on which constitutionally defective rules lose their binding force.175 In fact, where its judgment may result in expenditure not provided for in the State budget, the Trybunał Konstytucyjny is even obliged to seek the opinion of the Council of Ministers before setting the date on which the impugned statute loses its binding force.176 In practice, the power of postponement is mainly used to avoid gaps in the Polish legal order and enable Parliament to carry out the necessary legislative repairs. It should finally be noted that there is a maximum period of time for which the enforceability of judgments can be deferred, which is set at 18 months for statutes and 12 months for other legal acts. Although the constitutional courts in the other countries under study have not been attributed the competence to defer the date on which annulment takes effect, they have accepted 172 The ability to do so has not gone unnoticed at the European level. The European Court of Human Rights has recognised that deferring the date on which a law loses its binding force, with the effect that an unconstitutional provision remains applicable for a transitional period, may be necessary to ensure due respect for the principle of legal certainty and that this practice passes muster under the ECHR PB and JS v Austria App no 18984/02 (ECtHR, 20 July 2010) para 49; Walden v Liechtenstein App no 33916/96 (ECtHR, 16 March 2000); JR v Germany App no 22651/93 (Commission Decision, 18 October 1995). The position under EU law is different when the relevant provisions are also in breach of Union law, and the relevant judgments delivered by the Court of Justice are discussed in more detail in ch 7, section V-C. 173 For the Czech Republic, Czech constitution, Art 89(1) and Act on the Constitutional Court, § 58(1); for Poland, Polish constitution, Art 190(3) and Constitutional Tribunal Act, Art 71(2); for Hungary, Act CLI of 2011 on the Constitutional Court, Art 45(4), granting the Hungarian constitutional court the competence to depart from the normal rules on repeal and inapplicability of statutes if this is justified by the protection of the Fundamental Law, by the interest of legal certainty or by a particularly important interest of the entity initiating the proceedings. 174 See ch 7, section II-B(ii). 175 L Garlicki, ‘The Experience of the Polish Constitutional Court’ in Sadurski (ed), Constitutional Justice, East and West (n 1) 280. 176 Polish constitution, Art 190(3); Constitutional Tribunal Act, Art 44(2), which specifies that the Polish Council of Ministers should deliver this opinion within two months.

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this possibility in their case law.177 Doing so has at times required some judicial creativity, given that the applicable legal rules do not always allow room for manoeuvre in determining the date on which judgments come into force. This has notably been a debated issue in Italy, where the constitution unequivocally prescribes that statutes that have been declared unconstitutional cease to have effect from the date of publication of the Corte costituzionale’s judgment to that effect in the Gazzetta Ufficiale.178 This, however, has not deterred the Italian court, which, besides adopting judgments of supervening constitutionality,179 has occasionally simply waited to publish its ruling until after the legislature had rectified the unconstitutionality.180 The Spanish Tribunal Constitucional has, notably in earlier times, occasionally made use of a different strategy to arrive at a similar result: it would defer delivering its ruling until the constitutional problem had been remedied, and then limit itself to declaring that the object of review has disappeared (desaparición del objeto). iii. Findings of Unconstitutionality Not Accompanied by Annulment The legal frameworks governing the exercise of constitutional jurisdiction in the selected European countries assume a logical link between finding that a statute under review is unconstitutional and its annulment, that is to say its removal from the legal system.181 The constitutional courts in Spain, Italy and Germany have however accepted the possibility of issuing judgments that sever this link.182 The Spanish Tribunal Constitucional for the first time accepted that it could adopt such decisions in sentencia 45/1989.183 A married couple had brought a constitutional complaint against a decision to determine their tax liability by applying fiscal rules according to which the income of spouses was combined for taxation purposes, as a result of which they had to pay higher taxes than if they had been a non-married cohabiting couple. A chamber of the Tribunal Constitucional ruled that the two applicants had suffered unjustified fiscal discrimination by virtue of being married, in violation of the principle of equality and the constitutional obligation incumbent on public authorities to ensure the social, economic 177 For Belgium, see eg judgment no 102/99 of 30 September 1999, Tabaksreclame and judgment no 73/2003 of 26 May 2003, Brussels-Halle-Vilvoorde at B.9.8; for France see eg Décision no 2008-564 DC of 19 June 2008 (GMOs) at paras 56–58, where the Conseil constitutionnel was motivated to postpone the effects of its finding of unconstitutionality to allow France to comply with its EU obligation to implement directives in time; for Spain see eg sentencia 195/1998 of 1 October 1998; for Germany see eg 2 BvL 54/06 (2009); for Italy see eg sentenza 426/2004 of 16 December 2004 and sentenza 370/2003 of 17 December 2003. A comparative analysis of the exercise of the power to defer annulment in France, Belgium and Germany can be found in C Behrendt, Le juge constitutionnel, un législateur cadre positief: une analyse comparative en droit français, belge et allemand (Brussels, Bruylant, 2006). 178 Italian constitution, Art 136(1); Law no 87/1953, Art 30(3). 179 Such judgments find that a legal provision only becomes unconstitutional upon the materialisation of a certain future event; the declaration of unconstitutionality is accordingly deferred until that event takes place. For example, a regional law can become unconstitutional once a new law adopted by the state enters into force: see sentenza 153/1995 of 5 May 1995. 180 This happened, for example, in sentenza 64/1970 of 23 April 1970. 181 See, for example, the Spanish Organic Law 2/1979 on the Constitutional Tribunal, Art 39: ‘Where the judgment declares the unconstitutionality, it shall also declare invalid the contested provisions’; and the Czech Act on the Constitutional Court, § 70. 182 The old Czechoslovak constitutional court was similarly competent to restrict itself to a finding of unconstitutionality, without at the same time annulling the impugned law: see Czech constitutional court, The Relations between the Constitutional Courts and the Other National Courts, including the Interference in this Area of the Action of the European Courts, National Report for the XIIth Congress of the Conference of European Constitutional Courts (2002), 24. 183 Sentencia 45/1989 of 20 February 1989.

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and legal protection of the family.184 As the chamber was suspicious about the constitutionality of the underlying fiscal rules that had been applied to the complaining couple, it referred the law to the full tribunal for review.185 The full Tribunal Constitucional found that the idea of joint assessment for taxation purposes as such was constitutionally neutral and hence permissible, but that the method stipulated by the legislature for determining the amount of tax owed in the event of combined tax liability breached the constitution. Since the finding of unconstitutionality did not concern the core notion of joint tax liability, but rather an ancillary aspect, namely the application of a discriminatory calculation method, with there being no necessary connection between the two, the Tribunal Constitucional held that the disputed legal provisions should be declared unconstitutional, but not invalidated: As regards the effects, we should commence by recalling that, in accordance with the provisions of the organic law governing the constitutional tribunal, provisions considered to be unconstitutional shall be declared invalid, a declaration which has general effect from the moment of its publication in the Official State Gazette and in the case where it brings about the immediate and definitive expulsion of the affected provisions from the legal order, prevents their application from the moment just indicated, because the organic law does not empower this Tribunal, different from what occurs in some other systems, to postpone or defer the moment on which the annulment takes effect. However, since the connection between unconstitutionality and invalidity is not always necessary, and the consequences of invalidity as regards the past are not defined by law, this leaves to the Tribunal the task of specifying their scope in each case, since the category of invalidity shall not have the same content in the different parts of the legal order. . . . [T]he provisions of law 44/1978 declared unconstitutional formed part of a legal system whose full accommodation to the Constitution cannot be achieved by the annulment of one of those rules, as the sanction of invalidity, as a strictly negative measure, is manifestly incapable of reordering the tax rules governing personal income in terms compatible with the Constitution. The infringement of the constitutional principle of equality cannot be repaired, in this case, by means of the pure and simple extension to taxpayers integrated in a family unit of the regime legally established for taxation of those not in such a unit, for, as is obvious, such a hypothetical equation not only fails to recognise the constitutional legitimacy, affirmed in this judgment, of the prin ciple of joint taxation, but would also provoke irrational and incompatible results in the current legal framework, in turn, of [the principle of] equality, insofar as other parts of the legal system . . . have not been affected by finding of unconstitutionality and thus remain in place.186

The Tribunal Constitucional notably adopts decisions holding that a law is constitutionally flawed without quashing it when the defects stem from its discriminatory character or are caused by a violation of the equality principle, so that annulling the pertinent provisions would not solve the matter.187 Sentencia 209/1988 of 10 November 1988. This is known as an ‘auto-question of constitutionality’ (autocuestión de inconstitucionalidad) in the Spanish constitutional literature and is recognised by Organic Law 2/1979 on the Constitutional Tribunal, Art 55(2). In the instant case, the principal constitutional defect identified by the chamber in the ruling on the constitutional complaint had in the meantime been cured by the legislature. Nevertheless, the Tribunal Constitucional held that it was still necessary to examine the constitutionality of the pertinent legislative provisions as originally worded because they could still be applied in administrative and judicial proceedings: sentencia 45/1989 of 20 February 1989 at FJ 3. 186 Sentencia 45/1989 of 20 February 1989 at FJ 11 (internal references omitted). 187 Spanish constitutional tribunal, The Relations between the Constitutional Courts and the Other National Courts, including the Interference in this Area of the Action of the European Courts, National Report for the XIIth Congress of the Conference of European Constitutional Courts (2002), 19. 184 185

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Turning to the Corte costituzionale, we have seen that this court has not been given the power to prescribe that provisions that do not comport with the constitution remain applicable for a transitional period and that it has accordingly decided simply to delay the publication of its decisions. Another method of avoiding the immediate effectiveness of findings of unconstitutionality, which the Italian court uses more frequently, consists of the adoption of so-called judgments of ‘unconstitutionality verified but not declared’ (incostituzionalità accertata ma non dichiarata). The Corte costituzionale has devised this type of decision to deal with cases where it seems to be sure that the law violates the constitution, but prefers to give the legislature a sort of ultimatum before quashing the offending provision. These mainly include situations where the Italian court fears that eliminating the unconstitutional measure would be worse than tolerating its continued existence or when there is a pervasive political dimension to the law it has been asked to review. Like rulings of temporary constitutionality, decisions of ‘unconstitutionality verified but not declared’ also belong to the group of ‘follow-up judgments’ (doppia pronuncia). To reiterate, these entail the Corte costituzionale at first instance indicating that a law under consideration is not fully in harmony with the constitution, but refraining from striking it down and insisting that it is for the legislature to make the necessary corrections. Should the legislature fail to do so, the Corte costituzionale can invalidate the law on the next occasion it is asked to examine its constitutionality. Accordingly, such verdicts are known as ‘warning judgments’ (sentenze monito) in Italian constitutional doctrine. In practice, however, this is not always what happens. Parliament has been known to remain inactive, which may be exacerbated by the tendency of the Italian court not to set a deadline by which the necessary reforms ought to be carried out.188 There have been instances where laws have returned to the Corte costituzionale for review and the latter has not followed up on its threat of annulling the legislation, but has instead limited itself to exhorting the legislature once again to revise the problematic provisions to ensure their conformity with the constitution.189 In more recent years, the Italian court has appeared more willing to punish legislative inertia by adopting sentenze additive di principio, whereby it does not simply invalidate the law, but also specifies the guiding principles that a new statute should observe. The Corte costituzionale can instruct the ordinary judges to implement these principles and overcome the constitutional flaws it has identified, while awaiting the full realisation of those principles by the legislature.190 A more troublesome aspect of judgments of unconstitutionality verified but not declared has to do with the idea of individual justice. It should be realised that such rulings mean that the constitutionally offensive legislation remains in the legal system (at least for the time being) and can therefore still be applied by regular courts to parties embroiled in litigation. The Corte costituzionale has to date failed to deal satisfactorily with this issue. The Bundesverfassungsgericht can likewise decide that a statute is incompatible (nur unvereinbar) with the Basic Law, while declining to declare it null and void. Originally devel188 There are exceptions, mainly when it is possible to identify a specific moment at which the incompatibility of a statute with the constitution becomes so serious as to be intolerable, for instance as regards the need to implement European directives by a specific point in time: see Italian constitutional court, Constitutional Justice: Functions and Relationship with the Other Public Authorities (n 28) 24. 189 Nardini, ‘Passive Activism and the Limits of Judicial Self-Restraint’ (n 132) 33–38, who also discusses several examples of cases where the Corte costituzionale refrained from following up its initial judgment of ‘unconstitutionality verified but not declared’ (incostituzionalità accertata ma non dichiarata). 190 See eg sentenza 295/1991 of 17 June 1991; sentenza 560/1987 of 10 December 1987; sentenza 143/1997 of 19 May 1997.

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oped in constitutional case law,191 the possibility of adopting a declaration of incompatibility is now also mentioned in the law on the Bundesverfassungsgericht.192 The legislature has however refrained from regulating the consequences of this type of ruling or indicating the circumstances in which it may be appropriate to render such judgments, leaving these matters to the German court. The principal legal effects of a declaration of incompatibility are twofold. On the one hand, the legislature is placed under an obligation to rectify the unconstitutional situation.193 Unlike its Italian colleague, the Bundesverfassungsgericht frequently sets a deadline by which the necessary reforms must be carried out; failure to do so can expose the legislature to liability for damages incurred due to its inertia.194 On the other hand, and again different from the approach taken by the Corte costituzionale, the ordinary courts can as a rule no longer apply the impugned law in pending litigation, although it formally remains on the books.195 To be fair, it may be possible that the unconstitutional statutes continues to be applicable, but the Bundesverfassungsgericht must explicitly prescribe this in its ruling and only tends to do so in exceptional cases, such as those concerning tax provisions governing a period for assessment which has almost ended.196 It is possible to distinguish three categories of cases in which the Bundesverfassungsgericht is inclined to limit itself to declaring that the law under consideration is incompatible with the Basic Law, without stating that it is null and void.197 First, and most importantly, when the contested statute is found to infringe the principle of equality and there are several ways in which the legislature can rectify this defect: the original group of beneficiaries may be For the first time in BVerfG 28, 227 (1970); see also BVerfG 112, 268 (2005). See in particular the Law on the Bundesverfassungsgericht, Art 31(2) which – following revision in the 1970s – states that the German court can declare a law ‘to be compatible or incompatible with the Basic Law or to be null and void’ (emphasis added). See also Art 79(1) regulating the possible consequences of a ruling issued in response to abstract constitutionality challenges and Art 93(c)(1) concerning the possible types of decisions that can be handed down at the close of the constitutional complaint procedure. Contrast this, however, with Art 78 – included in the section on abstract constitutionality challenges – stating that if the Bundesverfassungsgericht finds that legislation does not comport with the Basic Law ‘it shall declare the law to be null and void’. 193 eg BVerfG 32, 189 (1972); BVerfG 34, 9 (1972); BVerfG 37, 217 (1974). This is seen as the most important consequence of a declaration of incompatibility and is a feature which distinguishes it from decisions declaring legislation null and void, which do not impose an obligation on the legislature to create a new law: see Schlaich and Korioth, Das Bundesverfassungsgericht (n 145) 263. The legislature is further required to ensure that the reform covers the entire period affected by the declaration of incompatibility and benefits all decisions based on the constitutionally deficient statute that have not yet acquired the force of res judicata: see BVerfG 107, 27 (2002). 194 eg BVerfG 72, 330 (1986); BVerfG 89, 15 (1993); BVerfG 116, 243 (2006). Article 35 of the Law on the Bundesverfassungsgericht is considered the legal basis for setting a deadline. For a discussion with examples of judgments imposing deadlines, see German federal constitutional court, Constitutional Justice: Functions and Relationship with the Other Public Authorities, National Report for the XVth Congress of the Conference of European Constitutional Courts (2011), 14–15. In the face of legislative inactivity, the Bundesverfassungsgericht has occasionally called upon the regular judiciary to decide pending cases in line with constitutional demands (eg BVerfG 115, 259 (2006); BVerfG 116, 229 (2006)), although this practice has been criticised. 195 See BVerfG 37, 217 (1974); BVerfG 55, 100 (1980); BVerfG 73, 40 (1986); BVerfG 87, 153 (1992). This can entail the suspension of the proceedings which led the Bundesverfassungsgericht to review the law (ie if the measure has come before it by means of a preliminary reference or a constitutional complaint) as well as lawsuits involving the same law (so-called parallel cases). 196 See eg BVerfG 105, 73 (2002) with references. In such cases, the German court ascribes more weight to the public interest of reliable fiscal and budgetary planning and the uniform execution of administration. For a recent example concerned not with taxation provisions, but with rules on preventive detention, see 2 BvR 2365/09 and 2 BvR 2333/08 (2011), where the Bundesverfassungsgericht held that declaring the relevant rules null and void would mean that all persons placed in preventive detention would have to be released immediately, creating almost insoluble problems for the courts, the administration and the police. 197 German federal constitutional court, The Relations between the Constitutional Courts and the Other National Courts, including the Interference in this Area of the Action of the European Courts, National Report for the XIIth Congress of the Conference of European Constitutional Courts (2002), 24 ff. 191 192

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expanded, abolished or defined in an altogether different way. According to the reasoning of the German court, declaring the law null and void in those situations would improperly impinge upon the legislature’s discretion to make that policy choice (Gestaltungsfreiheit des Gesetzgeber).198 Second, it is standing case law that the Bundesverfassungsgericht will refrain from striking down a statute, but only assert its incompatibility with the Basic Law when nullification would create a situation that is even less in accordance with the constitution than the actual status quo.199 The final category is today of minor significance and concerns statutes adopted prior to the entry into force of the Basic Law and certain transitional laws.200 C. The European Level: The Court of Justice Having considered the effects of decisions rendered by constitutional courts at the national level, this section explores, first, the legal consequences of rulings by the Court of Justice upholding European legislative acts and dismissing objections brought against its validity, and, secondly, the effects of finding that such acts are indeed at odds with the Union’s constitutional charter.201 At the outset, it should be noted that the effects of the Court’s decisions depend, strictly speaking, on whether they have been rendered in the context of an action for annulment or delivered in response to a request for a preliminary reference.202 In the former case, judgments produce an effect erga omnes, while in the latter case, rulings are formally speaking only binding for the referring national judge. In this respect, then, the European legal framework is comparable to the procedural regime in place in Belgium.203 In its case law, the Court of Justice has however largely overcome this asymmetry concerning the legal consequences of its judgments. Focusing for the moment on preliminary rulings that uphold EU acts, other national judges are no longer required to consult the Court of Justice about the compatibility of such measures with the EU’s constitutional charter, provided that they follow those rulings.204 Conversely, should a national court still harbour suspicions about the validity of other provisions of the European measure or doubt its lawfulness on grounds that have not been addressed in the earlier judgment, it is required to send a question to that effect to the Court of Justice. It is similarly possible to commence a second annulment action against the same European (legislative) act if the petitioners rely on new arguments to sup198 eg BVerfG 33, 349 (1972); BVerfG 93, 121 (1995); BVerfG 25, 101 (1969). The Bundesverfassungsgericht can determine the constitutional framework within which the legislature must remain when drafting a new law: see eg BVerfG 116, 243 (2006) Exclusion of Transsexual Foreigners from the Transsexuals Act. In extraordinary cases, the statute will be annulled, namely when there is only one way to remedy the violation of the equality principle; when it is clear which solution the legislature would have opted for; and when the relevant legal framework only leaves room for one particular solution: see the Report of the German federal constitutional court, The Relations between the Constitutional Courts and the Other National Courts (n 197) 25 with references to case law. 199 See eg BVerfG 83, 130 (1990) Josefine Mutzenbacher, discussed in Bon and Maus (eds), Les grandes décisions des cour constitutionnelles européennes (n 43) 714 ff; BVerfG 16, 130 (1963); BVerfG 33, 1 (1972). 200 German Basic Law, Art 117(1); as regards transitional rules, see eg BVerfG 84, 133 (1991); BVerfG 36, 146 (1973). 201 Recall that the Court lacks the power to strike down national laws adopted by the Member States or assess their compatibility with the Union’s constitutional framework: see eg Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings [2012] OJ C338/1, paras 7–8; Joined Cases C-10/97 to C-22/97 Ministero delle Finanze v IN.CO.GE.’90 Srl [1998] ECR I-6307. 202 More generally, see AG Toth, ‘The Authority of Judgments of the European Court of Justice: Binding Force and Legal Effects’ (1984) 4 Yearbook of European Law 1. 203 On which, see the text to n 120, n 121 and n 134. 204 Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECR 3415.

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port their claim, although the strict two-month deadline by which such actions must be initiated means that this does not tend to happen in practice.205 The Court of Justice is more likely to be asked to revisit its initial decision to uphold a Union measure through a prelim inary reference made by a national court following an unsuccessful annulment action.206 So what happens if the Court of Justice concludes that acts adopted by the European institutions do not comport with the EU’s constitutional charter? When the judgment is delivered at the close of a well-founded action for annulment, the act is declared void with generally binding effects.207 In contrast, findings of invalidity made in the context of the preliminary reference procedure in theory only entail that the objectionable act is deprived of its legal force in relation to the parties before the national court that referred the matter to the Court of Justice. Yet, in its ICC judgment the Court held, relying on the principle of legal certainty and the need to ensure the uniform application of EU law, that preliminary rulings declaring a European act invalid are also relevant for other national courts and, as such, can be said to produce an effect erga omnes: 11. The main purpose of the powers accorded to the Court by Article [267 TFEU] is to ensure that [Union] law is applied uniformly by national courts. Uniform application of [Union] law is imperative not only when a national court is faced with a rule of [Union] law the meaning and scope of which need to be defined; it is just as imperative when the court is confronted by a dispute as to the validity of an act of the Institutions. 12. When the Court is moved under Article [267 TFEU] to declare the act of one of the Institutions to be void there are particularly imperative requirements concerning legal certainty in addition to those concerning the uniform application of [Union] law. It follows from the very nature of such a declaration that a national court may not apply the act declared to be void without once more creating serious uncertainty as to the [Union] law applicable. 13. It follows therefrom that although a judgment of the Court given under Article [267] TFEU declaring an act of an institution, in particular a Council or Commission regulation, to be void is directly addressed only to the national court which brought the matter before the Court, it is sufficient reason for any other court to regard that act as void for the purposes of a judgment which it has to give.208

In the event of a successful challenge to the validity of a Union measure, the Court of Justice does not necessarily strike down the act in its entirety. Partial nullity is also possible, including in those instances where only certain provisions of a measure have been challenged, on the condition that the offending portion can be severed from the rest.209 205 For a discussion of the relevant legal framework governing annulment actions before the Court of Justice, see ch 3, section IV-B. 206 Another option for litigants would be to raise a plea of illegality as per Art 277 TFEU when contesting the validity of another Union act that is based on the European measure that was initially held by the Court of Justice to comport with the Union’s constitutional charter. It should be noted, however, that the Court cannot quash Union acts that are incidentally challenged: formally, it can only hold that those acts will not be applied to the petitioners’ case. 207 Art 264(1) TFEU. 208 Case 66/80 SpA International Chemical Corporation (ICC) v Amministrazione delle finanze dello Stato [1981] ECR 1191. National courts continue to be able to send preliminary references if they are uncertain about the grounds, scope and arguably the consequences of the invalidity declared by the Court of Justice in its first ruling. 209 Joined Cases C-68/94 and C-30/95 French Republic and Société commerciale des potasses et de l’azote (SCPA) and Entreprise minière et chimique (EMC) v Commission [1998] ECR I-1375, paras 251–59. In that case, the Court held that partial annulment would alter the substance of the measure in question and consequently decided in favour of total annulment. For a recent example where the Court decided on partial annulment, given that the validity of only one provision of the pertinent directive was called into question, see Test-Achats (n 19).

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In terms of the temporal effects of decisions proclaiming Union measures invalid, the basic principle is that of ex tunc or retroactive nullity, which means that legal relationships arising and establishing prior to the Court of Justice delivering its ruling are also affected.210 This principle is not absolute, however: like those constitutional courts whose declarations of unconstitutionality as a rule have retroactive effect, the Court too can regulate the temporal effects of its rulings. It has the authority to specify that some of the effects of the invalidated Union measure shall be considered final to prevent the emergence of a legal gap,211 and the Court has accepted that it can also rule that European acts retain their binding force until a new measure has been adopted.212 The conditions under which the Court of Justice will be swayed to deviate from the basic rule of retroactive nullity are, however, stringent: this is only considered justified ‘where overriding considerations of legal certainty involving all the interests, public as well as private are at stake and during the period of time necessary in order to allow such illegality to be remedied’.213 As such, and in view of the volume of its case law, there are relatively few instances in which the Court of Justice has (provisionally) maintained the effects of invalid Union measures. In the wake of a judicial finding of invalidity, the responsible Union institutions are under a treaty-imposed obligation to take the necessary measures to comply with the judgment.214 In addition to the primary obligation of adopting a new measure to replace the annulled act, this may also include ensuring that any replacement act is not vitiated by the same irregularities that prompted the Court to strike down its predecessor,215 and that similar provisions in other measures already in force are eliminated therefrom.216 While the institutions are expected to take action within a reasonable period of time, the Court has ruled that it lacks jurisdiction to impose a precise time limit in this respect.217 From a comparative perspective, the legal effects of rulings delivered by the Court of Justice are largely similar to those produced by decisions handed down by constitutional courts in the selected European countries. The most notable difference is arguably the judicial ingenuity displayed by several national courts – notably the Corte costituzionale and the See eg Case C-228/92 Roquette Frères SA v Hauptzollamt Geldern [1994] ECR I-1455, para 17. Art 264(2) TFEU. Although this power technically only applies in the context of annulment actions, the Court has held that it can also be relied upon in preliminary rulings, in view of the ‘necessary consistency between the preliminary ruling procedure and the action for annulment . . ., which are two mechanisms provided by the Treaty for reviewing the legality of acts of the [Union] institutions’: Case 112/83 Société des produits de maïs SA v Administration des douanes et droit indirects [1985] ECR 719, para 17. See also H Schermers and D Waelbroeck, Judicial Protection in the European Union, 6th edn (The Hague, Kluwer, 2001) 510–12. 212 See eg Case C-166/07 European Parliament v Council (‘International Fund for Ireland’) [2009] ECR I-7135, paras 70–75; Joined Cases C-402/05P and C-415/05P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351, paras 373–76; Case C-392/95 European Parliament v Council (‘Visa Requirements for TCNs’) [1997] ECR I-3213, paras 25–27; Case C-333/07 Société Régie Networks v Direction de contrôle fiscal Rhône-Alpes Bourgogne [2008] ECR I-10807, para 126; Case 81/72 Commission v Council (Staff Regulations) [1973] ECR 575, para 15. 213 Case C-409/06 Winner Wetten GmbH v Bürgermeisterin der Stadt Bergheim [2010] ECR I-8015, para 66. See also Régie Networks (n 212) paras 122 and 126; Kadi and Al Barakaat (n 212) para 375; Case C-41/95 Council v European Parliament [1995] ECR I-4411, paras 43–45. Whenever the Court decides to limit the retroactivity of its judgments, it normally makes an exception in favour of parties that have already taken legal action to protect their rights, in order to safeguard their legitimate expectations. 214 Art 266 TFEU, also held to be applicable in the context of the preliminary reference procedure: see Case 4/79 Société coopérative ‘Providence agricole de la Champagne’ v Office national interprofessionel des céréales (ONIC) [1980] ECR 2823, paras 44–46; Case 41/84 Pietro Pinna v Caisse d’allocations familiales de la Savoie [1986] ECR 1, paras 26–31; Joined Cases C-120/06P and C-121/06P FIAMM v Council and Commission [2008] ECR I-6513. 215 See eg Case C-310/97P Commission v AssiDomän Kraft Products [1999] ECR I-5363, paras 50–56. 216 Joined Cases 97, 193, 99 and 215/86 Asteris AE and Hellenic Republic v Commission [1988] ECR 2181. 217 See eg Case C-21/94 European Parliament v Council (‘Road Taxes’) [1995] ECR I-1827, para 33. 210 211

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Bundesverfassungsgericht – in devising alternative types of decisions or tinkering with their temporal effects beyond what is envisaged by the applicable legal regimes, with the Court of Justice in contrast displaying less creativity in this respect. While the relevant rules at EU level arguably do not create the same need to provide for judicial adaptation, as has been the case for some constitutional courts, a more potent explanation is that the Court has to date only infrequently declared Union legislative measures invalid, including on fundamental rights grounds, and that there has consequently been less need for a greater degree of variation or sophistication in deciding on the legal effects of its rulings.

VI. CONCLUDING REMARKS

This chapter has considered selected aspects of how constitutional courts go about the exercise of their power to review legislation for its constitutionality. In closing, some overarching observations are in order. The use of deference rhetoric and the development of the techniques and modalities of judicial decision-making that featured in the previous sections are underpinned by a common rationale. They are conceived as tools to moderate the relationship between the constitutional judges and the legislature, thereby assuaging the so-called counter- majoritarian difficulty and the tension inherent in allowing popularly elected representatives to make laws in line with the view of the political majority and giving judges the power to quash such laws. As such, they enable constitutional courts to practise the ‘passive virtues’ extolled by Alexander Bickel, who coined this term in American constitutional law to denote doctrines such as ripeness, mootness and void for vagueness, which have helped the US Supreme Court to reduce its involvement in controversial or delicate matters.218 The need for devices that allow a delimitation of the judicial function is perhaps even more pressing for European constitutional courts, which formally cannot control their own docket and are obliged to decide cases properly brought before them on their merits, than for the US Supreme Court, which is able to shape its own docket by deciding whether to grant certiorari. By skilfully employing various presumptions, techniques and decisional modalities, constitutional courts can show their sensitivity to the wider political, economic and social context within which they operate and mitigate open clashes with the legislature in politically or morally polemical cases. At the same time, it should be appreciated that the means and strategies canvassed in this chapter have frequently been made possible by, or involve, a certain degree of activism or judicial lawmaking on the part of constitutional courts. Thus, techniques such constitutionconform interpretation, rendering rulings of temporary constitutionality and modulating the temporal effects of annulment are not usually provided for in the applicable legal framework, but have been devised by these courts in their case law. Similarly, when constitutional courts hand down judgments that uphold the law under consideration after it has been ‘fixed’ or on condition that it is read in a particular way (possibly arriving at an outcome different from what the legislature had envisaged) or decide to strike down parts of a statute, thereby in effect modifying its scope or meaning, it cannot be said that these courts are behaving in a 218 A Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (New Haven, Yale University Press, 1962).

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very passive or deferential manner. Likewise, their rulings may steer future legislative activity by indicating guidelines or constitutional principles that should be respected for new statutes to pass constitutional muster. On a separate though related note, it has been argued that ‘the softer the consequences of a declaration of unconstitutionality, the more eager the court will be to subject legislation to a relatively strict scrutiny under the Constitution’.219 The upshot is that constitutional courts cannot be regarded purely or primarily as ‘negative legislatures’ in the way that Kelsen originally conceived of these institutions, and that it should be acknow ledged that they can, and do, at times act as positive legislatures. 220 A comparative analysis shows that constitutional courts in the systems under study have all displayed a certain inventiveness in accepting the possibility of rendering decisions that can be considered ‘grey’ in the sense that they neither simply declare the unconstitutionality of a particular statute nor uphold legislation as fully in harmony with the constitution. This is not to say that judicial approaches have been completely homogeneous in this respect. The degree of judicial resourcefulness is influenced by the formulation of the applicable legal rules (like in Italy) and notably by the position of the constitutional court in the constitutional order and the influence it exerts on political processes, in the eyes of its interlocutors and according to its self-perception. The tendency to fashion techniques along the lines sketched earlier has thus far been less pronounced at European level. This is arguably due to the fact that Court of Justice has not been particularly demanding or aggressive in checking the compatibility of Union legislative measures with the EU’s constitutional charter.221 In other words, it has to date used the intensity with which it scrutinises European acts as the principal strategy to regulate its relationship with the Union’s political institutions. Yet, the Court’s apparent newfound willingness to articulate readings of such acts that are somewhat strained in order to ensure full respect for European constitutional law could signal that it is becoming more active vis-à-vis the Union legislature. It will be interesting to see whether this tendency will endure and whether the Court will consequently feel the need to look for ways to soften the effects of findings of invalidity that mirror those currently used by national constitutional courts. Finally, only one of the legal techniques examined in this chapter has been explicitly fashioned by constitutional courts with a view to accommodating the position of the regular judiciary – namely the living law doctrine. Few constitutional courts have embraced this theory, however. Having said that, we have seen that some of the strategies or means that have been devised with an eye to governing the relationship between these courts and the political branches of government have an impact on the division of labour between constitutional courts and regular judges. This is notably the case with constitution-conform interpretation – which may require the latter to apply a statute in accordance with the interpretation ascribed to it by the former in order to ensure its conformity with the constitution – and when constitutional courts hand down decisions declaring legislation unconstitutional that establish a deadline for legislative reform failing which the regular courts are called upon to fill the resultant legal vacuum. As such, these techniques focus our attention on the fact that upholding the constitution is not the exclusive preserve of constitutional courts, a topic that is at the heart of the next chapter. Ferreres Comella, Constitutional Courts & Democratic Values (n 81) 85. Consider also the telling title of a comprehensive comparative volume edited by Allan Brewer-Carías on this particular issue, Constitutional Courts as Positive Legislators (n 44). 221 The Court has been more willing to strictly scrutinise and where necessary strike down non-legislative measures adopted by the Commission and other bodies competent to adopt such acts. 219 220

Chapter 7 Interplay between Constitutional Courts and Other Actors I. INTRODUCTION

The previous chapters have repeatedly shown that constitutional courts do not operate in a vacuum; rather, they are influenced by, aware of and engage with their wider political, social and judicial environment. Consider the discussion of the rules setting out who may bring constitutional issues to the attention of these courts and how this is done in chapter three; the important role played by Parliament in selecting and appointing new constitutional judges described in chapter four; the reliance placed on the ECHR or EU law in deciding on the meaning of the benchmark for constitutional review as detailed in chapter five; and, featured in chapter six, the decisional techniques devised in the case law with an eye to moderating the relationship with the legislature and the regular courts. Those chapters approached the engagement of constitutional courts with their wider environment primarily in light of the perceptions of these courts themselves. This chapter adopts a broad systematic perspective of the phenomenon. It studies interactions between constitutional courts and three of their most prolific interlocutors: the legislature (section II), the regular judiciary (section III) and the transnational judicial scene. This latter term is taken to comprise engagements with constitutional courts in other countries (section IV), with the Court of Justice of the European Union in Luxembourg (section V) and with the European Court of Human Rights in Strasbourg (section VI). Particular attention will be paid to the identification of factors that help to shape the incentives or need for engagement (or may conversely account for the absence thereof) and that steer its trajectory in a certain direction. In terms of methodology, the chapter makes ample use of case studies featuring one or a small set of legal systems, notably to illustrate points that (may) play out in a similar way as regards constitutional courts in other jurisdictions. Lastly, a comment on terminology. It is increasingly en vogue to conceptualise relationships between constitutional courts on the one hand and legislatures and other courts, both at the domestic and the European level, on the other hand, as involving elements of communication and conversation. The notion of ‘constitutional dialogues’, in particular, has gained currency in Canadian and American scholarship to describe interactions between the political branches of government and the constitutional judiciary.1 It is seen as 1 See, from an abundant literature, M Tushnet, ‘Dialogue and Constitutional Duty’ (2010) Harvard Public Law Working Paper No 12-10; M Schor, ‘Constitutional Dialogue and Judicial Supremacy’ (2010) Drake University Law School Research Paper No 12-02; C Bateup, ‘Expanding the Conversation: American and Canadian Experiences of Constitutional Dialogue in Comparative Perspective (2007) 71 Temple International and Comparative Law Journal 1; C Bateup, ‘The Dialogic Promise: Assessing the Normative Potential of Theories of Constitutional Dialogue’ (2006) 71 Brooklyn Law Review 1109; P Hogg and A Thornton, ‘The Charter Dialogue

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an attractive answer to the charge of counter-majoritarianism conventionally levelled against courts being able to strike down laws adopted by popularly elected representatives for breaching the constitution.2 As explained by Troper: All theories of justification [of constitutional adjudication] must reconcile two propositions: that courts partake in the final formulation of legislation and that they nonetheless implement the fundamental principles embodied in the political will of the people. On the one hand, courts must safeguard the supremacy of the Constitution as positive law; on the other, they must not inhibit democracy.3

Theories of constitutional dialogue emphasise that the political branches of government are (or should be) able to respond to decisions handed down by the courts, and that the constitutional judiciary should in turn also show a greater political responsiveness – which can take the form of (more) deference to legislative determinations or the inclusion of guidelines telling the legislature how to redress the defects of a particular statute. This means that constitutional issues are debated and decided in the context of an ongoing dialogue among various institutions, whereby the judges do not always or necessarily have the final word on such issues. Constitutional adjudication, accordingly, is not to be considered as a veto on the policies of the nation, but rather the beginning of a dialogue as to how best to reconcile constitutional principles and individual rights with the accomplishment of social and economic policies for the benefit of the community as a whole. Ideas of constitutional dialogue are taken to achieve exactly the reconciliation highlighted by Troper: they are conceived as a form of constitutionality control that entails neither judicial nor legislative supremacy. While there is a growing interest in examining how such ideas (can) work(s) in Europe, notions of dialogue or conversation have been used in the European context more often to characterise relationships within the judicial branch – in particular the interplay between national constitutional courts and the two European courts.4

between Courts and Legislatures’ (1999) Policy Options 19; L Tremblay, ‘The Legitimacy of Judicial Review: The Limits of Dialogue between Courts and Legislatures’ (2005) 3 International Journal of Constitutional Law 617 (who maintains an interesting distinction between dialogue as conversation and dialogue as deliberation); L Fisher, Constitutional Dialogues: Interpretation as Political Process (Princeton, Princeton University Press, 1988). 2 The term ‘countermajoritarian difficulty’ was first coined by Alexander Bickel in relation to the US Supreme Court in his famous book The Least Dangerous Branch: The Supreme Court at the Bar of Politics (New Haven, Yale University Press, 1962). More generally on the background and evolution of this concept in the US context, see B Friedman, ‘The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy’ (1998) 73 New York University Law Review 333; B Friedman, ‘Part Two: Reconstruction’s Political Court’ (2002) 91 Georgetown Law Journal 1; B Friedman, ‘Part Three: The Lesson of Lochner’ (2001) 76 New York University Law Review 1383; B Friedman, ‘Part Four: Law’s Politics’ (2000) 148 University of Pennsylvania Law Review 871; and B Friedman, ‘Part Five: The Birth of an Academic Obsession’ (2002) 112 Yale Law Journal 153. 3 M Troper, ‘The Logic of Justification of Judicial Review’ (2003) 1 International Journal of Constitutional Law 99, 99. 4 See eg M Claes, M de Visser, P Popelier and C van de Heyning (eds), Constitutional Conversations in Europe: Actors, Topics and Procedures (Antwerp, Intersentia, 2012); A Torres Pérez, Conflicts of Rights in the European Union: A Theory of Supranational Adjudication (Oxford, Oxford University Press, 2009); G Martinico, ‘Judging in the Multilevel Legal Order: Exploring the Techniques of “Hidden” Dialogue’ (2010) 21 King’s Law Journal 2; M Cartabia, ‘Europe and Rights: Taking Dialogue Seriously’ (2009) 5 European Constitutional Law Review 1; A Rosas, ‘The European Court of Justice in Context: Forms and Patterns of Judicial Dialogue’ (2007) 1 European Journal of Legal Studies 2; F Jacobs, ‘Judicial Dialogue and Cross-Fertilization of Legal Systems: The European Court of Justice’ (2003) 38 Texas International Law Journal 3. On the application of the notion of dialogue to the relationship between the ECtHR and the CJEU, see eg G Martinico and O Pollicino, The Interaction between Europe’s Legal Systems: Judicial Dialogue and the Creation of Supranational Laws (Cheltenham, Edward Elgar, 2012).

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And yet, expressions such as ‘dialogue’, ‘conversation’ or ‘communication’ are not traditionally terms of art within either constitutional or European law. They are, instead, employed as metaphors. As such, and similar to other metaphors, they can be useful in shaping our thoughts and providing a framework to highlight certain features of a phenomenon or indicate the direction in which a certain (fledgling) practice is developing, or ought to develop. Still, some caution is due: over-reliance on metaphors and the associated danger of trying to fit real life events into metaphor-terminology can be confusing at best and downright misleading at worst.5 In the particular case of the terms ‘dialogue’ and ‘conversation’, there are also underlying normative sentiments to be reckoned with, in that both terms not only signal whether, empirically speaking, the various actors are actually communicating with one another, but are also generally employed to indicate that such communication as a phenomenon should be evaluated positively and encouraged where possible. Accordingly, this chapter will practise restraint with the use of the notions of dialogue and conversation, and more frequently make use of less value-laden terms such as interactions, interplay, relationships or engagements.6 These will largely be treated as synonyms.

II. INTERACTIONS BETWEEN CONSTITUTIONAL COURTS AND (CONSTITUTIONAL) LEGISLATURES

A classic function entrusted to constitutional courts consists of reviewing laws for their constitutionality, with the judges assessing whether the legislature has overstepped the limits on its power and has respected constitutional rules and principles.7 The previous chapter explored several techniques that constitutional courts use in the exercise of this task and the kinds of decisions that they can hand down at the close of such an examination. This section takes the logical next step and inquires what can happen after the constitutional judiciary has spoken. Following a ruling on the validity or otherwise of a law, the ball is back in the legislature’s court.8 While it would seem that the legislature now has to make the political decision as to whether, and how, to proceed, the exercise of this responsibility can be circumscribed by the way judgments are crafted. Constitutional courts regularly adopt decisions that neither simply declare a law unconstitutional nor fully endorse the contested statute’s conformity with the constitution. In particular, rulings declaring that a given statute is unconstitutional may include guidelines or principles that should be respected for new legislation to pass muster or stipulate deadlines by which the court expects constitutional deficiencies to have been rectified, as part of the compromise to defer the date on which the unconstitutional provisions become ineffective. Such judgments effectively seek to steer future legislative activities and establish (at least in part) the 5 For instance, in the context of relationships between constitutional courts and the CJEU commentators have queried whether what is actually taking place is a series of monologues. 6 This last term is also profitably used by Vicki Jackson, Constitutional Engagements in a Transnational Era (New York, Oxford University Press, 2010). 7 See also ch 3, which features a detailed discussion of the various purposes of constitutional adjudication. While review of legislation is – at least in theory – seen as the central function exercised by constitutional courts, many of them also have other functions, which in practice may be more important than keeping the legislature in check. 8 Interactions between constitutional courts and the executive are not taken up in this book for reasons of space, while it is acknowledged that these relationships too are interesting to explore from a constitutional perspective.

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terms of further engagement between legislature and court in the event of subsequent challenges.9 Yet, when the court upholds the statute under review, legislative action within a certain time span or in accordance with particular constitutional principles may also be a requirement rather than an unfettered choice. This can notably happen in Germany and Italy, where the Bundesverfassungsgericht and the Corte costituzionale have recognised the possibility of handing down decisions of temporary constitutionality. It will be remembered that these state that the contested law as yet comports with the constitution, but will soon cease to do so – or is only just within constitutional boundaries – and appeal to the legislature to act in order to achieve a fully constitutional state of affairs. Inertia is not risk-free, since the court may strike down the law in second instance if the legislature fails to take action. More generally, decisions upholding a law may involve parts of it being judicially ‘modified’ to ensure that it is in harmony with the constitution, with the judges having engaged in constitution-conform interpretation to overcome flaws that would otherwise have resulted in the pertinent provisions being quashed.10 This can be done in a way that contradicts the legislature’s intentions, which may incite it to act in order to re-assert the meaning it had originally attributed to the relevant legislative clauses (although in practice this does not happen too frequently). Further, constitutional courts can reject the objections voiced against a law or part thereof, while at the same time highlighting some doubts about its constitutional legitimacy in other respects and suggesting that improvements or changes may be advisable, even if not required at that moment. In many cases, legislatures heed constitutional decisions, guidelines and deadlines included. That is not to say that rulings are always welcomed across the political or public spectrum. On the contrary, it is possible in every jurisdiction under study – and the same will no doubt go for those not examined here – to identify instances where the legislature complies only grudgingly, and critical remarks or even bitter complaints about the ruling, and sometimes also of its author, are made in Parliament and the media. This section will not examine such cases where the legislature, reluctantly or otherwise, follows the decisions of the constitutional court. We will instead explore several avenues that are open to the legislature when it disagrees with a judicial pronouncement on the validity of a law or with the interpretation given to a certain constitutional provision, to achieve some modi fication, adjustment or even reversal of the judgment.11 The legislature may attend to the 9 Christian Behrendt distinguishes in this respect between two types of judicial ‘interference’: those that are permissive, in that the legislature is empowered to adopt laws in line with a judicially created framework, which he calls ‘guidelines’ (lignes directrices), and those that are backed up by a legal obligation, meaning that the legislature is required to produce such laws, which he calls ‘injunctions’ (injonctions): Le judge constitutionnel, un législateurcadre positif: une analyse comparative en droit français, belge et allemand (Brussels, Bruylant, 2006). 10 The technique of constitution-conform interpretation is further explained and discussed in ch 6, section IV. 11 There will be no discussion of other means to evade compliance or respond to decisions deemed unfavourable by political actors, such as ‘court packing’, limiting the independence of constitutional judges or failing to appoint new judges to the bench once the term of office of their predecessors has come to an end, so that the court lacks the quorum to render judgments. For some older examples of such practices in the context of central and eastern Europe, see K Lach and W Sadurski, ‘Constitutional Courts of Central and Eastern Europe: Between Adolescence and Maturity’ (2008) 3 Journal of Comparative Law 212, 226–28, and note more recently developments in Hungary and Romania, on which see eg Venice Commission, Opinion 665/2012 on Act CLI of 2011 on the Constitutional Court of Hungary (CDL-AD(2012)009, Venice, 15–16 June 2012); and the ‘Urgent Communication: Update’ adopted by the Romanian constitutional court on 3 August 2012, which was addressed to one of the vicepresidents of the European Commission, the presidents of various bodies of the Council of Europe and the special rapporteur on the independence of judges and lawyers: N Buckley, ‘Judges Caught in Romania Power Struggle’, Financial Times (London, 7 August 2012).

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principal points made by the constitutional court, but resist compliance in other respects, with the upshot that laws may travel back and forth between the two institutions until a mutually agreeable result is achieved, as detailed in section A. The interplay can also be more formal and proceduralised in nature, such as when the decisions rendered by courts lack finality and may be repudiated by Parliament or require parliamentary implementation to be legally effective, as explained in section B, or where the political branches of government decide to amend the constitution to overturn a judgment, as described in section C. It should, lastly, be realised that the legislature might not respond in any way to the decisions handed down by constitutional courts and section D offers some explanations that may account for this. Ferreres Comella has argued that one of the advantages of having a separate constitutional court is that this facilitates political responses to court decisions, given that this court is the exclusive interlocutor for Parliament on questions regarding the constitutional validity of laws.12 Within Parliament, committees on legal affairs and the like are usually responsible for monitoring constitutional decisions and advising the plenary, often together with the relevant subject-matter committee, on whether and how to proceed.13 It is interesting to observe that the standing orders of various Houses of Parliament explicitly address the issue of the follow-up to the court’s rulings. Those of the Italian Chamber of Deputies, for instance, provide that the relevant subject-matter committee and the committee on constitutional affairs have 30 days to examine judgments of the Corte costituzionale and express an opinion, in writing, on the need for new legislation and its guiding principles.14 This opinion is conveyed to the president of the Corte costituzionale, among others. Other modalities of communication between the constitutional court and the legislature concerning the implementation of rulings have also been devised. For instance, the plenum of the Polish Trybunał Konstytucyjny discusses, at least once every year, problems resulting from its judgments and the most important of its political interlocutors are able to attend such gatherings and participate in the discussion.15 These meetings culminate in annual publications entitled ‘information on substantial problems arising from the activities and jurisprudence of the constitutional tribunal’, which are sent to both Houses of Parliament.16 12 V Ferreres Comella, Constitutional Courts & Democratic Values: A European Perspective (New Haven, Yale University Press, 2009) 104. 13 These committees are also typically involved in the preparation of new legislation (ie not in response to a particular judgment) and advising on the drafting thereof, and may also at this stage be influenced or even guided by the existing body of case law emanating from the constitutional court (see also ch 1, section III). This phenomenon has been referred to as the judicialisation of the legislative process: see eg A Stone Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford, Oxford University Press, 2000). As such, it could be said that the interaction or engagement between the legislature and the court (can) commence(s) during the drafting stages of new laws that are not directly or causally related to specific decisions handed down by the constitutional court. 14 Italian Chamber of Deputies Rules of Procedure, r 108. See also Rules of the Italian Senate, r 139 and the Rules and Regulations of the Polish Senate, Arts 85a–85f, introduced in November 2007. In Belgium, follow-up on judgments of the constitutional court that have an influence on the effective operation of the legal system is entrusted to a joint parliamentary committee (Comité voor Wetsevaluatie), which was set up by the law of 25 April 2007. According to this law, the committee will examine constitutional decisions on a monthly basis and adopt a report (Art 9), which may include proposals for new legislation (Art 10). 15 Constitutional Tribunal Act, Art 13. The president of the republic, the marshals of the Chamber of Deputies and the Senate and the prime minister can participate in the meeting, and the chairs of the relevant parliamentary committees, the president of the audit office, the minister of justice, the public prosecutor general, the presidents of the highest ordinary courts and the commissioners for citizens’ rights and the rights of the child have the right to attend. 16 ibid, Art 4(1). See also the Rules of Procedure of the Polish Chamber of Deputies, Art 123, which states that this information must be considered within three months of receipt, and Art 169(2), which states that this information shall be the subject of plenary parliamentary discussions. In addition, the Polish constitutional tribunal

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Somewhat comparably, in Germany, judges of the Bundesverfassungsgericht and representatives of the federal government and the Bundestag get together at approximately twoyearly intervals for a general exchange of information.17 With a better idea of what the implementation of court rulings can look like from an organisational perspective, let us now consider the various forms that follow-ups can take.

A. Processes of Give-and-Take A rather common form of interaction between the constitutional court and the legislature involves laws (or proposals for legislation) going back and forth between the two institutions until an acceptable compromise has been reached between the legislature’s policy preferences and the court’s identification of the constitutional commands that must be observed.18 What happens in those cases is, generally speaking, the following. The initial legislative attempt to achieve a certain objective or implement a certain policy choice has been struck down on other than merely procedural or formal grounds, which may be simply redressed without any need for changes to the substance of the impugned law. Parliament is still committed to realise the objective or policy it desires and consequently rewrites the portions of the invalidated law or enacts a new statute, redressing the most serious constitutional issues highlighted by the court. While largely complying with the pertinent judgment, Parliament does not, however, fully accommodate everything that the judges have said and resists adaption of the original legislative idea in some respects.19 The new legislative provisions will usually also find their way to the constitutional court for review, which may decide to accept the changes that have been made and uphold the new legislation. Doing so often involves an adjustment of the position articulated by the court in its initial ruling, in that it now lets legislation pass that may not be completely in line with what the judges had ideally wanted, but that is seen to be the best result that can at that time be achieved. This may be considered as a form of political responsiveness on the part of constitutional courts.20 Recall, in this respect, that while constitutional judiciaries may adopt non-binding signalling decisions, which indicate the existence of inconsistencies or gaps in the legal system, the removal of which is beneficial for ensuring the integrity of the Polish legal system (Constitutional Tribunal Act, Art 4(2)). 17 German constitutional court, Constitutional Justice: Functions and Relationship with the Other Public Authorities, National Report for the XVth Congress of the Conference of European Constitutional Courts (2011), 17. 18 Kim Lane Scheppele speaks of ‘constitutional negotiations’ in this respect: ‘Constitutional Negotiations: Political Contexts of Judicial Activism in Post-Soviet Europe’ (2003) 18 International Sociology 219. 19 To be sure, much here may also depend on how much leeway the constitutional court leaves the legislature, or, conversely, whether the judgment includes rather precise guidelines or indications as to the content of the new or revised legal rules. 20 This book will leave aside strategic accounts of the behaviour of constitutional courts, prominent in US political science literature, whereby the room for manoeuvre and scope for judicial lawmaking by such courts are assessed with reference to the constraints posed by the presence and power of other actors within the constitutional system. On this, see eg L Epstein and J Knight, The Choices Justices Make (Washington, QC Press, 1997); L Baum, The Puzzle of Judicial Behaviour (Ann Arbor, University of Michigan Press, 1998); G Vanberg, ‘LegislativeJudicial Relations: A Game-Theoretic Approach to Constitutional Review’ (2001) 45 American Journal of Political Science 346. Focusing more specifically on the Court of Justice, see C Carrubba, M Gabel and C Hankla, ‘Judicial Behavior under Political Constraints: Evidence from the European Court of Justice’ (2008) 102 American Political Science Review 435 and the reply by A Stone Sweet and T Brunell, ‘The European Court of Justice, State Noncompliance, and the Politics of Override’ (2012) 106 American Political Science Review 204.

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take seriously their job of upholding the constitution, including against the legislature, they are also concerned to show respect for the latter’s greater democratic credentials.21 They may thus seek to leave the legislature some latitude and avoid unduly inhibiting the execution of the legislative agenda. Alternatively, the amendments made by Parliament may be considered insufficient, meaning that the constitutional court also invalidates the legislature’s second attempt and the ‘to-and-fro’ process may repeat itself until a workable compromise has been reached and the court finds that the pertinent legal rules are constitutional (or no further challenges are brought against these). In the end, both Parliament and the court may thus have had to change their initial position somewhat to enable the realisation of a policy that the legislature wants, in a way that complies with the gist of what the court holds is permissible in light of relevant constitutional rules and principles. The process by which legislation travels back and forth between Parliament and the court will be illustrated below with the help of two case studies. The first concerns the German Bundesverfassungsgericht and the regulation of abortion; the second involves the Hungarian Alkotmánybíróság and limitation periods for crimes committed during Communism. Before discussing these examples, a few more general remarks are in order. The constitutional courts under study have all indicated that in principle they do not condone the adoption of legal rules whose content is identical or similar to that of provisions that they have earlier struck down on substantive constitutional grounds; and that they will in all likelihood invalidate any such legislative attempts at resuscitation.22 The underlying reason can be found in the need to enforce respect for the authority attributed to their decisions, which are usually stipulated to be binding for all public authorities, the legislature included. Having said that, time is an important attenuating factor, as we shall also see in the German case study. In the above description of the interplay between courts and legislature, the new law is adopted more or less on the back of an annulment decision and as such, a certain degree of revision to accommodate the judges’ most pressing constitutional objections seems desirable and even proper. Still, constitutional courts generally recognise that the objectionable features associated with the duplication of legislation hold rebus sic stantibus. Changes in the economic, political or social environment can place the relevant issue in a different light altogether by requiring legislative action or adjustment along lines that were previously rejected on constitutional grounds. The passage of time may thus mean that a new law that is more or less similar (if not identical) to legal rules that had earlier been invalidated by the court now passes constitutional muster, whereby the court may similarly feel the need to correct its prior case law to keep it in tune with the social or economic developments that have spurred the legislature into action. As such, instances where there is a fair amount of time between a judicial declaration of unconstitutionality and the enactment of new legislation, whereby the intervening period has been characterised by changes to the configuration of the political landscape or the social or economic system, can be seen as a variant of the process whereby laws travel to and fro between legislature and constitutional court in anticipation of a mediated solution that is agreeable to both institutions. 21 For an interesting counter-argument in the context of central and eastern Europe, see KL Scheppele, ‘Democracy by Judiciary, Or, why Courts Can be More Democratic than Parliaments’ in A Czarnota, M Krygier and W Sadurski (eds), Rethinking the Rule of Law after Communism (Budapest, CEU Press, 2005). 22 See the National Reports prepared by various constitutional courts for the XVth Congress of the Conference of European Constitutional Courts (2011) on the topic of Constitutional Justice: Functions and Relationship with the Other Public Authorities, more particularly part IV question 6.

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Processes of ‘give-and-take’ often have an organic character, as there is typically no procedural arrangement tailored to this kind of interaction between the court and the political institutions, prescribing how and when they should engage with one another. Yet, there are institutional and procedural devices that may increase the likelihood of such processes taking place. As noted, parliamentary committees in some countries systematically examine constitutional decisions to decide whether there is a need for legislative follow-up, and in other jurisdictions, meetings are scheduled at regular intervals during which judges and parliamentarians may discuss issues pertaining to the implementation of constitutional judgments. In addition, several countries have established procedures that allow the head of state to refer acts adopted by Parliament and presented to her for signing and promulgation to the court for preventive review of their constitutionality.23 In the event that the court finds that the pertinent act does not pass muster, the text is returned to Parliament so that it can make the necessary amendments. As such, the decision of a head of state to make use of her control power and initiate the procedure for a priori scrutiny may be the opening move in bringing about processes of ‘give-and-take’. Although the focus of this section is on how constitutional courts may be induced by the legislature’s response to their rulings to adjust their case law, it should be acknowledged that other factors too may, either alone or in combination with political developments, elicit a change in judicial approach. To start with, European constitutional courts are not bound by their own precedents in the same way that the US Supreme Court is expected to adhere to its past decisions. That said, in practice they usually tend to affirm and follow their earlier decisions (even if they do not always do so explicitly in the text of the decisions). There are good reasons for this. Frequent derogations or judicial self-overrides undermine legal certainty within constitutional law. They can further detract from the court’s authority and legitimacy, giving political and societal forces the impression that the court is fickle, where it would instead be expected to exhibit a steadfast commitment and relatively constant approach to the foundational document of the domestic legal order. At the same time, changes to the existing body of case law may be appropriate to avoid paralysis in the development of constitutional law, given that the courts often play an important role in making possible the adaptation and adjustment of constitutional rules and principles through (creative) judicial interpretation. The factors that can cause a constitutional court to change its interpretation of a given constitutional provision or principle may be as mundane as a change in personnel. We saw in chapter four that constitutional judges in Europe typically have limited tenure24 and the arrival (or conversely, the departure) of members with a certain background, area of expertise or a great legal mind can impact the direction of the court’s case law.25 Changes in social reality may similarly provoke a deviation from prior case law. Think in particular of changing conceptions of the family – such as the treatment of children born out of wedlock, unmarried cohabitation of 23 This is, for instance the case in France (French constitution, Art 61), Portugal (Portuguese constitution, Art 278), Estonia (Estonian constitution, s 107; Constitutional Review Court Procedure Act, s 5) and Poland (Polish constitution, Art 122(3). Similarly, in Ireland, the president can – after consultation with the special Comhairle Stáit, which is charged with aiding and advising the president in the exercise of her powers – refer adopted legislation that she believes is repugnant to the constitution to the supreme court for assessment before signing (Irish constitution, Art 26). See also ch 1, section IV. 24 ch 4, section IV-A. 25 For example, Thierry Di Manno explains how a former president of the Conseil constitutionnel was largely responsible for a change in the case law as regards non-normative legal provisions (so-called neutrons législatifs) in Décision no 2004-500 DC of 29 July 2004 and particularly Décision no 2005-512 DC of 21 April 2005, in ‘Les revirements de jurisprudence du Conseil constitutionnel français’ [2006] 20 Cahiers du Conseil constitutionnel.

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men and women, and more recently same-sex couples – and of evolutions in what is considered morally appropriate. The upshot may be the converse of what was discussed earlier: the constitutional court may initially have upheld a certain law, but is later motivated to strike it down as a result of changing its reading of the pertinent constitutional clause(s).26 A nice example is offered by a couple of judgments of the Italian Corte costituzionale concerning a provision of the criminal code, according to which only adultery committed by the wife – and not by the husband – qualified as a punishable offence. In its first decision, the Corte costituzionale rejected the challenge brought against this provision, holding that it did not breach the constitutional principle of equality.27 When, several years later, the Corte costituzionale was again asked to review the statutory provision, it arrived at the opposite conclusion and supported its finding of unconstitutionality, amongst other things, with references to the ‘current social times’ and the ‘current social reality’.28 Zagrebelsky further explains that much of Italian public opinion had reacted with indignation to the initial ruling and that the Corte costituzionale’s change of heart furthermore coincided with a change in its composition.29 Lastly, focusing on the European Union, there is as yet no similar or comparable pattern of political mediation and engagement between the Court of Justice and the Union legislature that mirrors the ‘give-and-take’ processes that take place at national level. Especially in view of the number of judgments handed down by the Court each year, there are preciously few rulings striking down Union legislative acts, which could otherwise have incentivised the political institutions to react by enacting (slightly) revised measures to get their way. That is not to say that there has never been a felt need to develop a political response to a Court decision concerning Union legislation.30 This happened, for instance, in relation to a judgment concerning the validity of the Working Time Directive,31 but in this case (and there also have been others) it proved too difficult to secure the necessary political consensus to respond to the Court and nudge it to change its interpretation of the Union’s constitutional charter in a way that pleased the Union legislature.32 The Lisbon Treaty and 26 In this respect, the court can be at the vanguard – as was the US Supreme Court for example with its ruling in Brown v Board of Education of Topeka, 347 US 483 (1954) – with the result that its judgment may bring about the ‘back-and-forth’ process explained earlier, or it may be a laggard. Much here will depend on the standing rules and who is able to initiate litigation and bring a particular constitutional question to the court’s attention. Recall also the rulings of temporary constitutionality that can be adopted by the Corte costituzionale and the Bundesverfassungsgericht, in which these courts reserve the right to strike down a law in second instance, for instance in light of social or economic changes. 27 Sentenza 64/1961 of 23 November 1961. 28 Sentenza 126/1968 of 16 December 1968. 29 G Zagrebelsky, ‘Existe-t-il une politique jurisprudentielle de la Cour constitutionnelle italienne?’ [2006] 20 Cahiers du Conseil constitutionnel. 30 A plea in favour of more political control of and responsiveness to the decisions handed down by the Court of Justice can be found in F Scharpf, ‘Legitimacy in the Multilevel European Polity’ (2009) 1 European Political Science Review 173. 31 Case C-84/94 United Kingdom v Council (‘Working Time Directive’) [1996] ECR I-5755. The United Kingdom had argued that Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time [1993] OJ L307/18, should be struck down for breaching the principle of subsidiarity, given that the protection of workers’ health and safety could be dealt with adequately by the Member States themselves. To the UK’s chagrin, the Court dismissed this argument and upheld the directive. 32 What happens more frequently is that the Court of Justice indicates that certain national legislative measures are incompatible with EU law requirements, for instance when delivering preliminary rulings in response to questions from national courts asking about the correct interpretation of Union law so that they can assess the compatibility of national law with Union law or in the context of infringement proceedings initiated by the Commission under Art 258 TFEU. Consider for instance Case C-127/08 Blaise Baheten Metock v Minister for Justice, Equality and Law Reform [2008] ECR I-6241 on the interpretation of Directive 2004/38/EC of the European

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the European Charter of Fundamental Rights may mean that the Court will reinvigorate its role as a check on the legislature. To the extent that this indeed happens, it will be interesting to see whether this will result in more processes of ‘give-and-take’. i. Case Study: Germany and the Regulation of Abortion33 In the 1960s, the German social-liberal coalition initiated a wide-ranging reform of the Criminal Code. One of these modifications consisted of a 1974 law that sought to introduce new rules regulating the conditions under which abortions could be legally performed, without either the woman or the doctor incurring criminal liability. The proposed rules adhered to a ‘periodic model’, whereby a pregnancy was divided into stages, and abortion was completely decriminalised during the first 12 weeks, on the condition that the woman attended a counselling session where she was to be provided with information about social assistance available both during her pregnancy and after having given birth.34 After the first trimester, abortion was treated as a criminal offence, except in instances where medical or eugenic considerations indicated the interruption of the pregnancy.35 Following its adoption, the law was attacked almost immediately as being repugnant to the German Basic Law. In its first abortion decision, the Bundesverfassungsgericht upheld the challenge and struck down the decriminalisation that the new abortion rules entailed.36 Building on its earlier ruling in Lüth,37 the Bundesverfassungsgericht reasoned that the State has a positive constitutional duty to protect the fundamental right to life, including that of the unborn, against illegal attacks by others, even by the mother.38 With the impugned law, the State had however failed to adequately discharge this obligation, because it had failed to Parliament and Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/77, which notably caused political unease in Denmark as it was considered to hollow out its immigration legislation. In those cases, a political response to the Court’s ruling by means of legislative action at the Union level may not be feasible. This may be the case because there are not enough other Member States that feel similarly affected or that prefer the same response to the objectionable judgment, or, even if there is political will, the treaties may not provide the necessary legal competences to take action. See eg M Dawson, ‘The Political Face of Judicial Activism: Europe’s Law-Politics Imbalance’ in M Dawson, B De Witte and E Muir (eds), Judicial Activism at the Court of Justice: Causes, Responses and Solutions (Cheltenham, Edward Elgar, 2013). 33 The discussion below will only discuss selected aspects of the two principal rulings delivered by the Bundesverfassungsgericht in this regard. For an examination of aspects of the relevant abortion decisions pertaining to the right to life and human dignity in a comparative dimension, see eg V Jackson and M Tushnet, Comparative Constitutional Law, 2nd edn (New York, Foundation Press, 2006). Another area where it is possible to observe a process of to-ing and fro-ing between the German legislature and the Bundesverfassungsgericht is that of party finance legislation. A detailed treatment in English can be found in G Vanberg, The Politics of Constitutional Review in Germany (Cambridge, Cambridge University Press, 2005) ch 6. 34 German Criminal Code in the version of the Fifth Statute to Reform the Criminal Code of 18 June 1974, Arts 218a and 218c. 35 ibid, Art 218b. 36 BVerfG 39, 1 (1975) Abortion I. Upon the request of the petitioners, the Bundesverfassungsgericht suspended the operation of the law pending its ruling and reinstated the old legal regime that threatened punishment for both doctors and pregnant women except where abortion was necessary to save the woman’s life: BVerfG 37, 324 (1974). 37 BVerfG 7, 198 (1958) Lüth, where the Bundesverfassungsgericht held that fundamental rights are not only subjective, defensive rights to be employed by the citizen against the State, but also establish an objective order of values. See also ch 5, section IV. 38 By recognising that fundamental rights can give rise to positive or affirmative duties on the part of the State, the Bundesverfassungsgericht is able to indicate that there is a need for legislative action to protect a specific fundamental right in order to avoid a breach of the constitution. As such, it has enhanced its clout vis-à-vis the legislature and can be said to play an agenda-setting role.

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clearly segregate the justified cases of abortion from the reprehensible. More particularly, the Bundesverfassungsgericht held that a periodic model did not comport with the German Basic Law, but that an ‘indications model’ should be followed, whereby abortions would be permissible only on certain designated grounds, rather than during a particular period of time. The State should criminalise abortions that did not fit one of the ‘indications’ to express its legal condemnation of such terminations of a pregnancy in order to fulfil its duty in protecting the constitutional right to life of the unborn. As explained by the Bundesverfassungsgericht in the paragraphs that are most relevant for our purposes: C.II.3. The fundamental attitude that the Constitution requires as regards the regulation of abortion follows from [the preceding discussion]: the legal order may not make the woman’s right to self-determination the only guideline for its regulations. The State must in principle proceed from a duty to carry the pregnancy to term and must therefore in principle consider its termination as a wrong. The condemnation of abortion must be clearly expressed in the legal order. . . . C.III.2.a. It has always been the task of criminal law to protect the fundamental values of community life. That the life of every individual belongs to the most important legal values has been established above. The termination of a pregnancy irrevocably destroys a human life that has come into being. Abortion is an act of killing . . . From this standpoint, the use of criminal law to punish ‘acts of abortion’ is undoubtedly legitimate . . . C.III.2.b. However, punishment cannot be an end in itself. Its use is in principle subject to the decision of the legislature. The legislature is not prevented, while respecting the viewpoints mentioned earlier from expressing the constitutionally required legal condemnation of the interruption of pregnancy by other means than the threat of criminal sanctions. Decisive is, whether the totality of the measures serving to protect unborn life, whether they be in civil law or in public law, in particular of a socio-legal or criminal nature, guarantee an actual protection corresponding to the importance of the legal value to be protected. . . . If one were in general to deny the duty to also use the instrument of criminal law, the protection to be afforded to the right to life would be substantially restricted. The seriousness of the sanction for the threatened destruction corresponds to the value of the legal interest threatened by destruction [ie that of the unborn], the elementary value of a human life requires criminal punishment for its destruction. C.III.3. . . . A continuation of the pregnancy appears to be non-exactable especially when it is proven that termination is necessary to ‘avert’ from the pregnant woman ‘a danger to her life or the danger of a grave impairment of her condition of health’ (§218b, no 1 of the Criminal Code in the version of the fifth law to reform the criminal law). . . . In addition, the legislature is at liberty to leave interruptions of pregnancy unpunished in the case of other extraordinary burdens for the pregnant woman which, from the viewpoint of non-exactability, are as weighty as those referred to in §218b. no 1. This includes in particular the cases, contained in the proposal of the federal government in the sixth election period of the federal parliament and discussed both in the public debate as well as during the course of the legislative procedure, of eugenic, ethical (criminological) and the social or emergency indications for abortion. . . . The decisive viewpoint is that in all these cases another interest, equally worthy of protection from the perspective of the Constitution, asserts itself with such urgency that the legal order cannot require the pregnant woman, under all circumstances, to give precedence to the right of the unborn. . . . When the legislature removes genuine cases of conflict of this kind from the protection of criminal law, it does not violate its duty to protect life. Also in these cases, the State may not be content with merely examining and, where appropriate, to certify that the legal prerequisites exist for a termination of the pregnancy free of punishment. Rather, the State will also be expected to offer

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counselling and assistance with the aim of reminding the pregnant woman of the fundamental duty to respect the right to life of the unborn, to encourage her to continue the pregnancy and – especially in cases of social need – to support her with practical measures of assistance. In all other cases, abortion remains a wrong deserving punishment; for here the destruction of a legal interest of the highest order is subject to the uncontrolled – not motivated by any crisis – pleasure of another. If the legislature had also [in these cases] wanted to dispense with criminal prosecution, then this would be compatible with the protective command of Article 2(2)(1) of the Basic Law only on the condition that another equally effective legal sanction stands at its command which would clearly allow the recognition of the unjust character of this act (the condemnation by the legal order) and which would prevent interruptions of pregnancy as effectively as a criminal provision.39

The three dissenting judges agreed with the majority that the State has an obligation to protect unborn life, but argued that it was not for the Bundesverfassungsgericht to decide how this duty was to be implemented. They notably expressed grave reservations about the majority’s prescription to carry out this obligation by threatening pregnant women and doctors with criminal sanctions.40 Following the judgment, Parliament revised the invalidated abortion rules in accordance with the Bundesverfassungsgericht’s diktat.41 Interruptions of pregnancy during the first trimester were recriminalised, with exceptions for abortions for medical, eugenic, ethical (eg pregnancies following rape or incest) or pressing social reasons duly certified by two doctors. The reunification of Germany in 1990 was the catalyst for a change in the constitutional case law on abortion. The legal regime applicable in the former German Democratic Republic was markedly different from that prevailing in West Germany after the Bundesverfassungsgericht’s ruling: abortion was available on demand and at public expense during the first three months of pregnancy. The Unification Treaty accordingly obliged the legislature to enact a unified abortion law by the end of 1992.42 The new statute was reminiscent of the invalidated 1974 law in several respects. It gave effect to the State’s duty to protect the life of the unborn by providing for counselling and social measures, instead of relying on criminal punishments to achieve this end. Further, the legislature again opted for a periodic model, whereby interruptions of pregnancy were generally allowed and did not incur criminal liability during the first trimester, after a mandatory counselling session and a three-day waiting period.

39 For longer excerpts from the judgment in English, see D Kommers and R Miller, The Constitutional Jurisprudence of the Federal Republic of Germany, 3rd rev edn (Durham, NC, Duke University Press, 2012) 373–94; Jackson and Tushnet, Comparative Constitutional Law (n 33) 112 ff. 40 The dissenting opinion written by judges Simon and Rupp-von Brünneck – the only woman member of the court at that time – (the other dissenter, justice Ritterspach, did not write his own opinion or join that of his colleagues) also provides interesting reflections on the demarcation of the roles of the constitutional court and the legislature and the appropriateness of practising some form of judicial restraint. 41 Law of 18 May 1976. The revised German provisions of the criminal code setting out the punishment for unjustified abortions were unsuccessfully challenged before the European Court of Human Rights by two German women, who asserted that their right to private life as protected under Art 8 of the Convention had been breached. Their complaint was dealt with by the (then still existing) European Commission of Human Rights, which found that not every restriction on the termination of a pregnancy amounted to an interference with a mother’s right to respect for her private life and that under Art 8 of the Convention, pregnancy and its interruption were not, in principle, solely a matter of the private life of the mother: Brüggemann and Scheuten v Federal Republic of Germany (1981) 3 EHHR 244 (Commission Decision). 42 Unification Treaty, Art 31(4). Until the adoption of a unified law or the expiry of the deadline for legislative action, each part of Germany would retain its pre-unification abortion rules.

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When the constitutional validity of this new law was questioned, the Bundesverfassungsgericht modified its earlier position in Abortion I in an important respect by no longer insisting on criminal punishment for procuring non-indicated abortions in the first 12 weeks.43 A ‘periodic’ approach to abortion was no longer considered unconstitutional and a sophisticated counselling system geared towards inducing women to go through with the pregnancy could be accepted as an alternative to a general policy of criminalisation of abortion in non-indicated cases. While the Bundesverfassungsgericht thus compromised by endorsing a key tenet of the new law, it nevertheless proceeded to invalidate parts thereof for not doing enough to implement the State’s duty to protect unborn life. On the one hand, although non-indicated abortions could remain unpunished, they could not receive legal approbation and the legislature was accordingly not justified in classifying these cases of interruption of pregnancy as ‘not illegal’ (nicht rechtswidrig) and offering reimbursement of relevant medical expenses through the public health system.44 On the other hand, the German judges found that the content and organisation of the counselling process were constitutionally flawed as being too neutral, and should have been more firmly directed towards persuading the woman to continue her pregnancy whenever this was possible. Consider the relevant sections of the headnote (Leitsätze) to the ruling, which was drawn up by the judges themselves: 6. The state must fulfil its duty of protection by adopting adequate measures setting legal and factual standards whose objective – in consideration of conflicting interests – is to provide for appropriate and effective protection (minimum protection). . . . 8. Under minimum protection the state is precluded from freely dispensing with criminal punishment and its protective effect on human life. . . . 11. The legislature acts constitutionally when it adopts a regulatory scheme for the protection of the unborn which uses counselling as a means of inducing pregnant women in conflict during the early stages of pregnancy to carry their pregnancy to term. The legislature also acts within constitutional bounds when it dispenses with criminal prosecution for indicated abortions as well as the determination of such indications by third parties. 12. A counselling-based regulation must comply with underlying constitutional conditions which impose affirmative duties on women for the benefit of the unborn. . . . 15. Abortions performed in the absence of a determined indication as prescribed by the counselling regulation may not be deemed justified (not unlawful). . . . 16. It is unconstitutional to create an entitlement to statutory health insurance benefits for the performance of an abortion whose lawfulness has not been established. By contrast, it is not unconstitutional to grant social welfare benefits for abortions not incurring criminal liability under the counselling regulation where a woman lacks financial means.45 43 BVerfG 88, 203 (1993) Abortion II. On this judgment, see eg G Hermes and S Walther, ‘Schwangerschaftsabbruch zwischen Recht und Unrecht. Das zweite Abtreibungsurteil des BVerfG und seine Folgen’ [1993] Neue Juristische Wochenschrift 2337; S Walther, ‘Thou Shalt Not (But Thou Mayest): Abortion after the German Constitutional Court’s 1993 Landmark Decision’ (1993) 36 German Yearbook of International Law 385; G Neumann, ‘Casey in the Mirror: Abortion, Abuse and the Right to Protection in the United States and Germany’ (1995) 43 American Journal of Comparative Law 273. 44 There were two dissenting opinions. The first, by judges Mahrenholz and Sommer, took issue with the majority’s understanding of the constitutional duty to protect the life of the unborn, more particularly with the legal requirements that were said to flow from this obligation. The second opinion was written by judge Böckenförde and concerned solely the question of the financing of abortions by public means. 45 For longer excerpts from the judgment in English (which numbered 163 pages in length), see Kommers and Miller, The Constitutional Jurisprudence of the Federal Republic of Germany (n 39) 387 ff.

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Parliament adopted a new unified abortion law designed to rectify those aspects that had not passed constitutional muster in August 1995.46 While largely complying with the Bundesverfassungsgericht’s decision, the judges’ demands were essentially disregarded in some respects, as Georg Vanberg recounts: As one member of the Bundestag who participated in drafting the law told me during an interview, “the court had demanded that we provide additional sanctions for relatives that pressure a woman into an abortion. So we included some passages in the law that take care of this pro forma. But we never expected that this would change anything in practice . . . It was only formal compliance, and that is what we were aiming for.47

He also interviewed several judges of the Bundesverfassungsgericht, one of whom alluded to the role of public opinion in explaining the shift from the court’s position in the first abortion ruling: There are significant differences between the 1975 and the 1992 decisions. The differences can largely be explained by the desire to find a solution that would be acceptable to everyone. . . . That was a very conscious effort, we were looking for such a solution. Of course, the court didn’t take an opinion poll, but public attitudes did play a role.48

No further challenges to the unified abortion law have been brought before the Bundesverfassungsgericht.49 ii. Case Study: Hungary and Limitation Periods for Crimes Committed during Communism50 An important challenge confronting Hungary in its transition to democracy – and the same can be said about other countries emerging from the collapse of Communism – was coming to terms with its authoritarian past.51 As part of the endeavour to secure transitional justice,52 the Hungarian Parliament in 1991 adopted an act reopening the limitation 46 Having struck down the first unified abortion law, the Bundesverfassungsgericht outlined a regime for regulating abortions that would be applicable in anticipation of the entry into force of a revised unified abortion law: BVerfG 88, 203, 378 (1993) Abortion II. The judges also indicated a whole host of measures that could be adopted to create a social environment conducive to a woman deciding to continue her pregnancy. For a discussion of the 1995 law see R Will, ‘German Unification and the Reform of Abortion Law’ (1996) 3 Cardozo Women’s Law Journal 399. 47 Vanberg, The Politics of Constitutional Review in Germany (n 33) 128. 48 ibid. 49 In a later case (BVerfG 96, 120 (1997)), the Bundesverfassungsgericht was asked to rule on the permissibility of a very restrictive abortion statute adopted by the Land Bavaria. As the matter was brought before the Bundesverfassungsgericht by means of a constitutional complaint by doctors who had been prosecuted under the Bavarian law, the case was decided by the first Senate, which was at that time generally considered to be more liberal than the second Senate, which had issued the two abortion rulings examined in the main text. The Bavarian law was struck down, on the ground that it was for the federal legislature to decide on the legal regime governing abortion. For more detail, see U Wesel, Der Gang nach Karlsruhe: Das Bundesverfassungsgericht in der Geschichte der Bundesrepublik (Munich, Karl Blessing, 2004) 256–58. 50 Another area in which one can see the court and the legislature going back and forth is that of austerity measures involving the so-called ‘Bokros package’, after the name of the finance minister at the time. For discussion see eg Scheppele, ‘Constitutional Negotiations’ (n 18). 51 On transitional justice in central and eastern Europe, see generally A Czarnota, M Krygier and W Sadurski (eds), Rethinking the Rule of Law after Communism (Budapest, CEU Press, 2005); M Krygier and A Czarnota (eds), The Rule of Law after Communism: Problems and Prospects in East-Central Europe (Dartmouth, Ashgate, 1999); AJ McAdams (ed), Transitional Justice and the Rule of Law in New Democracies (Notre Dame, Notre Dame University Press, 1997) which includes country reports on Poland and Hungary. 52 Generally on this notion, see eg R Teitel, Transitional Justice (New York, Oxford University Press, 2000); from a more theoretical perspective, see J Prˇibánˇ , Dissidents of Law: On the 1989 Velvet Revolution, Legitimations, Fictions

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period for the crimes of treason and murder that had been committed between 1944 and 1990, which had not been prosecuted for political reasons (often because they had been carried out on behalf of the old regime) but had in the meantime become time-barred.53 Unsure about its validity, the president refused to promulgate the act and instead referred it to the constitutional court for review.54 In Decision 11/1992, the Alkotmánybíróság declared that the act was unconstitutional for offending against the rule of law, of which legal certainty was considered an essential component.55 It reasoned that Hungary’s transition to democracy had taken place on the basis of the principle of legality, and that there could consequently be no distinction between laws enacted prior to and after the new constitution as regards an assessment of their constitutionality: The politically revolutionary changes adopted by the Constitution and all the new fundamental laws were enacted in full compliance with the old legal system’s procedural laws on legislation, thereby gaining their binding force. The old law retained its validity. . . . The legitimacy of the different (political) systems during the past half century is irrelevant from this perspective; that is, from the viewpoint of the constitutionality of laws, it does not comprise a meaningful category. Irrespective of the date of its enactment, each valid legal rule must conform with the new Constitution. Likewise, constitutional review does not admit two different standards for the review of laws.

Further, the Alkotmánybíróság exalted the ideology of a constitutional state under the rule of law and asserted that dealing with the unique historical circumstances of transition could only take place within its confines: That Hungary is a constitutional state is both a statement of fact and a statement of policy. The constitutional state becomes a reality when the Constitution is truly and unconditionally given effect. . . . Not only the regulations and the operation of state organs must comply strictly with the Constitution but the Constitution’s values and its ‘conceptual culture’ must imbue the whole of society. This is the rule of law, and this is how the Constitution becomes a reality. . . .

of Legality and Contemporary Versions of the Social Contract (Dartmouth, Ashgate, 2002). Another popular instrument of transitional justice is ‘lustration’, which entails that limitations are placed on the ability of persons that had been (closely) associated with the Communist Party to participate in the political life in the new democratic regime. For a comparative overview of lustration and restarting (or suspending) statutes of limitation in various countries in central and eastern Europe, see W Sadurski, Rights before Courts: A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe (Dordrecht, Springer, 2005) ch 9. 53 Its official title was ‘Act on the Right to Prosecute Serious Criminal Offences Committed between 21 December 1944 and 2 May 1990 that had not been Prosecuted for Political Reasons’, and was known more colloquially as the Zetenyi-Takacs Act, after the names of its two sponsors. The need for this particular law arose from the fact that under the still applicable pre-1989 legislation, the limitation period was set at 20 years, including for grave crimes such as murder, and had often run its course when Hungary was experiencing the transition. 54 On the possibility for heads of state to decline to sign a statute because they have reservations about its constitutionality, see ch 1, section IV. The power of the Hungarian constitutional court to engage in a priori review and an explanation of the relevant standing rules under both the current and the pre-2012 procedural framework can be found in ch 3, section III-A(i)(a). 55 Decision 11/1992 of 5 March 1992. For comment, see the special ‘Forum on the Hungarian Constitutional Court Decision Overturning a Retroactivity Law’ (1992) 1 East European Constitutional Review 17 ff. The Hungarian decision is often contrasted with the Czech constitutional court Judgment Pl ÚS 19/93 of 21 December 1993, Lawlessness, in which the latter court arrived at the opposite conclusion when reviewing a similar statute, holding it to be compatible with the constitution. For analyses involving a comparison of the two judgments, see eg Sadurski, Rights before Courts (n 52) 249 ff; R Uitz, ‘The Rule of Law in Post-Communist Constitutional Jurisprudence: Concerned Notes on a Fancy Decoration’ in G Palombella and N Walker (eds), Relocating the Rule of Law (Oxford, Hart Publishing, 2008); D Robertson, The Judge as Political Theorist: Contemporary Constitutional Review (Princeton, Princeton University Press, 2010) 125 ff.

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Within the framework of the constitutional state, and in order to further its development, the given historical situation can be taken into consideration. However, the basic guarantees of the constitutional state cannot be set aside with reference to historical situations and the requirement of justice for the constitutional state. A state under the rule of law cannot be created by undermining the rule of law. Legal certainty based on formal and objective principles is more important than necessarily partial and subjective justice.56

Having thus laid the groundwork, the Hungarian court held that suspending the statute of limitations violated the prohibition of retroactivity ‘embodied in the principle of legal certainty which, in turn, stems from the principle of the rule of law’.57 The judges also found fault with the notion of ‘political reasons’ as the trigger for a new (or extended) window for criminal prosecution, which was considered to be unacceptably vague as it was impossible to establish a clear and unambiguous definition of its meaning for a period spanning nearly 50 years. In view of the role played by public opinion in explaining the Bundesverfassungsgericht’s revision of its position on abortion legislation described earlier, it is interesting to note what the then president of the Hungarian constitutional court had to say about the critical reception of the judgment on retroactive criminal legislation: ‘Despite considerable public outcry, the Court found that the government could not prosecute the crimes. The Court, like similar institutions in other countries, strives not to be swayed by public opinion.’58 As Parliament was still determined to enable the prosecution of perpetrators of polit ically protected crimes and achieve some form of substantive justice, it sought new ways to achieve this objective. These consisted, firstly, of the adoption of a so-called authoritative resolution on the interpretation of the statute of limitations, stating that the period between 1944 and 1990 should be excluded when calculating the expiry of the limitation period. In addition, the Criminal Procedure Act was amended to oblige public prosecutors to bring charges in certain cases, even if these had already become time-barred. Parliament also passed a law entitled ‘Procedures concerning Certain Crimes Committed During the 1956 Revolution’, which classified the offences committed when quelling this revolution as war crimes and crimes against humanity and providing for the applicability of relevant international law in this respect. This included in particular the 1968 New York Convention on the non-applicability of statutory limitations to war crimes and crimes against humanity, to which Hungary was a signatory. It is worth pointing out that for the drafters of the original invalidated law, ‘of the crimes committed, those perpetrated against Hungarian citizens during the attempted revolution of 1956 were uppermost in the legislators’ minds’59 and that this new act would permit the prosecution of these crimes through reliance on international instead of domestic law. All three measures were referred to the Alkotmánybíróság for scrutiny.60 56 Translations taken from the English text of the decision, available on the website of the Hungarian constitutional court. 57 On the use of the rule of law clause in the old constitution as a standard for constitutionality control, see ch 5, section VI. 58 L Sólyom, The Hungarian Constitutional Court and Social Change’ (1994) 19 Yale Journal of International Law 223, 227. 59 S Zifcak, ‘Retroactive Justice in Hungary and the Czech Republic’ quoted in R Uitz, ‘Constitutional Courts and the Past in Democratic Transition’ in Czarnota, Krygier and Sadurski (eds), Rethinking the Rule of Law (n 51) 246. 60 The amendment of the Criminal Procedure Act and the new law were referred for review by the president of the republic before their promulgation; the constitutionality of the parliamentary resolution was challenged by several MPs.

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In two decisions rendered on the same day, the Hungarian constitutional court struck down both the authoritative resolution and the amendment of the criminal procedure act, again invoking the principles of the rule of law, legality and legal certainty that it had previously used to defeat Parliament’s initial attempt to allow for some form of retroactive criminal legislation.61 Later that same year, however, the Alkotmánybíróság endorsed the approach taken by Parliament in the law dealing with crimes committed during the 1956 revolution.62 While reiterating that the retroactive modification of limitation periods is in principle unconstitutional, it recognised two exceptions to this basic tenet. First, prosecution was still possible for offences committed during the old regime where the statute of limitations did not apply to crimes at the time they were carried out. Second, the general ban on retroactivity in criminal law could give way to ensure observance of international commitments undertaken by Hungary, in line with the constitution’s command to act in accordance with the rules of international law: War crimes and crimes against humanity are such criminal offences which did not arise as part of the domestic criminal law but are deemed to constitute criminal offenses by the international community which defines their elements. . . . The norms on war crimes and crimes against humanity are undoubtedly part of customary international law . . .; in the parlance of the Hungarian Constitution, they belong to “the generally recognised rules of international law”. The Hungarian legal system accepts these rules, according to the first clause of Art. 7(1) of the Constitution, therefore they fall, within separate transformation or adoption, within those “assumed obligations under international law” whose harmony with domestic law is required by the second clause of the aforementioned Article of the Constitution. . . . With Act I/1971, Hungary incorporated the New York Convention. . . . [T]he Convention extends the defining characteristic of the international regulation of these criminal offences [war crimes and crimes against humanity] – the rendering of prosecution and punishment independently of domestic law – to the period during which prosecution and punishment may be initiated. If with respect to the fundamental question – the application of sui generis international legal conditions alongside domestic law – unconstitutionality could be excluded, then that verdict perforce applies to the similar and auxiliary obligation of the same nature. In its Decision 11/1992, the Constitutional Court interpreted the entirety of the constitutional requirements on criminal responsibility within domestic law. The Constitutional Court proceeded the same way with respect to international law’s criminal liability as well.63

The Alkotmánybíróság did annul one provision of the contested law, which dealt with crimes exclusively defined with reference to domestic law, and found some defects in the drafts manship of the statutory clauses dealing with war crimes and crimes against humanity. At the same time, it indicated how Parliament could rectify these flaws in a constitutionally acceptable manner. By doing so, the Hungarian judges were arguably keen to help bring the 61 Decision 41/1993 of 30 June 1993; Decision 42/1993 of 30 June 1993. The annulment of the authoritative resolution was also based on formal grounds, with the Hungarian court explaining that rules affecting individuals’ fundamental rights were constitutionally required to be laid down in statutes and that parliamentary resolutions were accordingly not acceptable in this context. 62 Decision 53/1993 of 13 October 1993. In this case, the Alkotmánybíróság also asserted its competence under the pre-2012 constitutional framework to assess the compatibility of adopted but not yet promulgated legislation with norms of international law. The power to carry out such an assessment is today laid down in the Hungarian Fundamental Law, Art 24(2)(f). 63 Translation taken from L Sólyom and G Brunner, Constitutional Judiciary in a New Democracy: The Hungarian Constitutional Court (Ann Arbor, Michigan University Press, 2000).

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disagreement with Parliament regarding the prosecution of the culprits of some of the worst crimes under the old regime to a close, in a way that was acceptable to both institutions.64

B. Legislative Overrides We have just seen that the legislature may, through its response to a constitutional decision, seek to induce or nudge the court to adjust or reverse its case law on a particular constitutional issue. Yet in some cases, the legislature also has other means at its disposal to articulate its reaction to the court’s rulings. In particular, this section discusses the choice in a legal system to provide that decisions identifying constitutional defects of a certain legal norm are conditional. That is to say, the legislature is able to reject or overturn a court’s determination of a constitutional issue without having to resort to the (often labor ious) process of amending the constitution – a possibility that will be discussed below. The focus in what follows is on these ‘legislative overrides’.65 Although the approach adopted in this book is firmly Europe-centred, it is well known that a mechanism enabling non-constitutional overrides is also in place in Canada. This Canadian mechanism has been a major catalyst in popularising the language of ‘constitutional dialogues’ in the academic discourse along the lines described in the introduction to this chapter. In addition, much comparative literature on overrides refers to this jurisdiction and, for these reasons, a brief description of the main features of the Canadian system is included immediately below. In 1982, the Canadian constitutional settlement underwent a fundamental change as a result of a repatriation of powers from the United Kingdom.66 A new constitution was enacted to replace the British North American Act of 1867 which until then had served as such, with the catalogue of rights laid down in a separate Charter of Rights and Freedoms. Like in the United Kingdom, the doctrine of parliamentary supremacy had been a guiding tenet of constitutionalism in Canada. Under the new Charter of Rights and Freedoms, however, the judiciary is explicitly granted the competence to assess the conformity of legislation with the rights protected therein. At the same time, section 33 of the Charter 64 See the introductory headnote to Decision 53/1993 of 13 October 1993 in Sólyom and Brunner, Constitutional Judiciary in a New Democracy, ibid, 273; see also Robertson, The Judge as Political Theorist (n 55), who also argues that the finding of the Hungarian judges that pertinent provisions of international law were directly applicable in the Hungarian legal order can be explained with reference to the same reasons. The issue of the applicability of the statute of limitations to crimes perpetrated during the Communist regime has recently resurfaced. The Fourth Amendment to the 2012 Fundamental Law of Hungary inserted a new Art U into the latter document, which amongst other things prolongs the statute of limitations for crimes ‘defined in law at the time [they were] committed’ that have not been prosecuted ‘for political reasons’. To this end, Art U(7) and (8) provide that the clock starts ticking on the date of the entry into force of the Fundamental Law, ie 1 January 2012. 65 Mark Tushnet has referred to systems that provide for this option as embodying a model of ‘weak-form judicial review’, which he defines as ‘a form of judicial review in which judges’ rulings on constitutional questions are expressly open to legislative revision in the short run’. This is to be contrasted with models of ‘strong-form judicial review’, which denote systems in which ‘the courts have the final and unrevisable word on what the Constitution means, with legislatures and executive officials having no substantial role in informing the court’s constitutional interpretations’: see ‘Weak-Form Judicial Review and “Core” Civil Liberties’ (2006) 41 Harvard Civil Rights-Civil Liberties Law Review 1; ‘The Rise of Weak-form Judicial Review’ in T Ginsburg and R Dixon (eds), Comparative Constitutional Law, Research Handbooks in Comparative Law Series (Cheltenham, Edward Elgar, 2011). 66 On this process, see eg E McWhinney, Canada and the Constitution, 1979–82: Patriation and the Charter of Rights (Toronto, University of Toronto Press, 1982).

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incorporates an override mechanism, which is commonly known as the notwithstanding clause, to ensure ‘that legislatures rather than judges would have the final say on important matters of public policy’.67 It provides that both Parliament and the provincial legislatures may expressly declare that legislation shall operate ‘notwithstanding’ their inconsistency with various substantive provisions of the Charter.68 Section 33 thus enables the legislature to retain a law on the back of a decision by a Canadian court holding that (part of) this law conflicts with (its interpretation of) the rights and freedoms found in the Charter.69 The competent Canadian legislative assembly must explicitly declare, in the pertinent statute, that it is invoking the notwithstanding clause. Interestingly, such declarations are not permanent; their validity is limited to five years (although indefinite renewal is allowed), a time span that coincides with the maximum life of a Parliament under Canada’s electoral laws. The idea was that this temporal limitation would allow the use of section 33 – and hence the competing legislative and judicial readings of Charter rights and freedoms – to become a ballot box issue. Since its introduction in 1982, however, the notwithstanding clause has rarely been invoked and there is an ongoing academic debate concerning the extent to which it has, nevertheless, helped to create a genuine and effective dialogue on the meaning of the provisions of the Charter between the Canadian legislature and the judiciary, notably the Supreme Court.70 From a more normative perspective, section 33 of the Canadian Charter of Rights and Freedoms – and the introduction of comparable mechanisms in New Zealand and the United Kingdom – have been welcomed by several scholars, who conceive of such devices as providing a promising answer to the democratic objection to constitutional adjudication.71 It does not seem likely, however, that institutional arrangements whereby the legislature can reject or qualify judicial interpretations of constitutional provisions and principles will be (re)introduced in continental European countries that have established separate constitutional courts. As Sadurski explains: 67 These were the words used by the justice minister when introducing the clause in the House of Commons, as reported in C Manfredi, ‘The Unfulfilled Promise of Dialogic Constitutionalism: Judicial-Legislative Relationships under the Canadian Charter of Rights and Freedoms’ in T Campbell, J Goldsworthy and A Stone (eds), Protecting Rights Without a Bill of Rights (Aldershot, Ashgate, 2006) 250. 68 More precisely, with ss 2 and 7–15, dealing respectively with fundamental freedoms (such as freedom of religion, association and expression), legal rights (such as the right to life, liberty and security of the person and the right to a fair trial) and equality rights. 69 s 33 can also be employed an in ex ante fashion, in that the legislature can insert such a declaration preemptively in legislation, thereby effectively immunising it from judicial scrutiny. For instance, following the adoption of the Charter of Rights and Freedoms in 1982, the province of Quebec enacted a law containing a blanket notwithstanding declaration, which was not however renewed upon its expiry in 1987. See further eg T Kahana, ‘The Notwithstanding Mechanism and Public Discussion: Lessons from the Ignored Practice of Section 33 of the Charter’ (2001) 44 Journal of the Institute of Public Administration of Canada 255. 70 See inter alia P Hogg and A Bushell, ‘The Charter Dialogue between Courts and Legislatures (Or Perhaps the Charter of Rights Isn’t Such a Bad Thing After All)’ (1997) 35 Osgoode Hall Law Journal 75; K Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Toronto, Irwin Law, 2001); J Hiebert, Charter Conflicts: What is Parliament’s Role? (Montreal, McGill-Queen’s University Press, 2002); K Roach, ‘Dialogic Judicial Review and its Critics’ (2004) 23 Supreme Court Law Review 49; Tremblay, ‘The Legitimacy of Judicial Review’ (n 1); P Hogg, A Bushell Thornton and W Wright, ‘Charter Dialogue Revisited: Or “Much Ado About Metaphors” ’ (2007) 45 Osgoode Hall Law Journal 1. 71 Including Tushnet, ‘Weak-Form Judicial Review’ (n 65) and Tushnet, ‘The Rise of Weak-Form Judicial Review’ (n 65); A Young, ‘Is Dialogue Working under the Human Rights Act 1998?’ [2011] PL 773. See also the work of Stephen Gardbaum on non-constitutional overrides: ‘The New Commonwealth Model of Constitutionalism’ (2001) 49 American Journal of Comparative Law 707; ‘Reassessing the New Commonwealth Model of Constitutionalism’ (2010) 8 International Journal of Constitutional Law 167; and, more recently, his The New Commonwealth Model of Constitutionalism: Theory and Practice (Cambridge, Cambridge University Press, 2013).

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Non-finality is universally considered a sign of institutional weakness in a constitutional court, and as inconsistent with the very principle of the rule of law. The general view among the judges of constitutional courts in the region, and clearly the majority view within the doctrine, is unqualifiedly hostile towards the possibility of a legislative override of constitutional courts’ decisions.72

While Sadurski has made this observation in a volume dealing with constitutional judiciaries in central and eastern Europe, it is probably true to say that the general attitude on this issue will not be materially different in other European countries also subscribing to a centralised model of constitutional adjudication. The remainder of this section offers an examination of the mechanisms for legislative overrides in two of the European countries under study, namely the declaration of incompatibility provided for under the UK’s Human Rights Act 1998 (section i) and the possibility for the Polish legislature under the pre-1997 constitution to reject decisions handed down by the Trybunał Konstytucyjny (section ii).73 For each of these, we will consider their raison d’être and design, and offer some observations regarding the way that they have been applied in practice. i. United Kingdom: Section 4 of the Human Rights Act 1998 Under the Labour government of Tony Blair, the United Kingdom went through a series of significant constitutional reforms, a key component of which was the enactment of the Human Rights Act (HRA) 1998.74 This act sought to rectify the oddity that individuals asserting an infringement of their rights under the European Convention on Human Rights (ECHR) could not obtain relief from the UK courts, but had to file an application with the European Court of Human Rights in Strasbourg to secure protection of their rights. The HRA 1998 ‘brought rights home’75 by incorporating most of the substantive provisions of the European Convention on Human Rights (ECHR) into UK law76 and making these directly enforceable in domestic courts.77 For this purpose, courts are given Sadurski, Rights before Courts (n 52) 80. Romania and Portugal are also interesting in this context. Until 2003, decisions handed down by the Romanian constitutional court in the context of a priori abstract constitutionality challenges could be overridden by Parliament if a two-thirds majority of MPs in both Houses of Parliament readopted the contested law (Romanian constitution, Art 145(1)). This provision has been superseded by Art 147(1) of the constitution, which mandates Parliament to reconsider unconstitutional provisions ‘in order to bring them into line with the decision of the constitutional court’. In Portugal, certain legal texts may be referred to the constitutional court for a priori scrutiny after its adoption but before promulgation. If the constitutional court finds that the legal rules do not comport with the constitution, the text is returned to Parliament, which may confirm it by a qualified two-thirds majority, which obliges the president of the republic to sign and promulgate the text (Portuguese constitution, Art 279). 74 Two other significant constitutional reforms concerned the introduction of devolution legislation in 1998 and the establishment of the UK Supreme Court to take over as the highest judicial body from the Law Lords in the House of Lords. For a general discussion of these and other reforms, see V Bogdanor, ‘Our New Constitution’ (2004) 120 LQR 242; V Bogdanor, The New British Constitution (Oxford, Hart Publishing, 2009); focusing on the introduction and content of the HRA, see eg D Feldman, ‘Extending the Role of the Courts: The Human Rights Act 1998’ [2011] Parliamentary History Yearbook 65. 75 After the title of the White Paper preceding the introduction of the HRA 1998 in Parliament: Home Department, Rights Brought Home: The Human Rights Bill (Cm 3782, 1997). 76 The rights incorporated are those set out in Arts 2–12 and 14 of the ECHR (thus excluding Art 13 on the right to an effective remedy and Art 1 which obliges States to secure the Convention rights to everyone within their jurisdiction), Arts 1 to 3 of the First Protocol and Art 1 of the Thirteenth Protocol: see s 1(1) and sch 1 HRA. 77 More recently, there has been a debate in the UK as to whether the HRA 1998 should be superseded by a domestic UK Bill of Rights. See inter alia the coalition agreement between the Conservatives and the Liberal Democrats, in which it was agreed to look at how human rights are and should be protected in the UK, and the report produced by the Commission on a Bill of Rights that was established to provide advice to the government on this issue: A UK Bill of Rights? The Choice before Us (December 2012), www.justice.gov.uk/about/cbr. 72 73

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two core remedial powers.78 Under section 3, they are obliged to interpret all legislation in harmony with the Convention rights ‘so far as it is possible to do so’.79 If conventionconform interpretation of the impugned act of parliament80 is impossible, section 4 gives higher courts the competence to issue a declaration of incompatibility.81 A court contemplating such a declaration will alert the Crown, and the minister (or his nominee) is entitled to join the proceedings as a party.82 Importantly, declarations of incompatibility do not affect the validity and enforceability of the pertinent legislative provisions and are not binding on the parties to the proceedings in which these declarations are made.83 Rather, a declaration of incompatibility signals to the political branches that the court believes that there is a problem with the compatibility of legislation with Convention rights that cannot be interpreted away and that requires the former to take remedial action. UK courts were deliberately denied the power to invalidate legislation in order to preserve the essence of the cardinal principle of parliamentary sovereignty. As the then Lord Chancellor remarked during the deliberations in the House of Lords, ‘The design of the Bill is to give the courts as much space as possible to protect human rights, short of a power to set aside or ignore Acts of Parliament. . . . It maximises the protection of human rights without trespassing on parliamentary sovereignty.’84 Once a declaration of incompatibility has been made, it is for the political branches of government to decide whether and how to respond. If the declaration in question emanates from a lower court, the government can lodge an appeal in the hope that it will be overturned. Alternatively, Parliament can proceed to amend the offending legislation, either by means of the ordinary lawmaking procedures or using the special fast-track procedure for the adoption of delegated legislation provided by section 10 of the HRA 1998, allowing ministers to adopt so-called ‘remedial orders’.85 78 The general provision on remedies is s 8 HRA 1998, stipulating that courts ‘may grant such relief or remedy, or make such orders, within its powers as it considers just and appropriate’. For the aggrieved individual, she may thus be in a position to obtain an award of damages or an order of restitution. For an overview, see D Feldman, ‘Remedies for Violations of Convention Rights under the Human Rights Act’ [1998] European Human Rights Law Review 691. 79 The courts have taken a broad view as to when this is indeed possible, and do not eschew reading in ‘implied provisions’ or using HRA 1998, s 3 when the language of the statute in issue is unambiguous. The two leading cases in this respect are R v A (No 2) [2002] 1 AC 45 and Ghaidan v Godin-Mendoza [2004] UKHL 30. The latter case also addresses the question of the limits of s 3 and when a declaration of incompatibility would be more appropriate than Convention-conform interpretation. Thus, in the leading speech of Lord Nicholls, it was explained (at para 33) that ‘Parliament . . . cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation. . . . The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend Lord Rodger of Earlsferry, “go with the grain of the legislation”. Nor can Parliament have intended that section 3 should require courts to make decisions for which they are not equipped. There may be several ways of making a provision Conventioncompliant, and the choice may involve issues calling for legislative deliberation.’ 80 The same applies to secondary legislation when primary legislation prevents the removal of the incompatibility with the Convention rights other than by revocation (HRA 1998, s 4(4)(b)). 81 HRA 1998, s 4(5) specifies the courts that can issue declarations of incompatibility, which are the Supreme Court, the Judicial Committee of the Privy Council, the Court of Appeal and the High Court, the High Court of Justiciary (not sitting as a trial court) and the Court of Session in Scotland, the Court Martial Appeal Court and the Court of Protection. 82 HRA 1998, s 5. 83 ibid, s 4(6). See also s 6(2), which provides that until the impugned legislation is changed, it will not be unlawful for a public authority to act in accordance with that legislation in its original form and hence in a way that is incompatible with a Convention right. 84 Lord Irvine of Lairg, HL Deb 3 November 1997, vol 582, cols 1128–29. 85 HRA 1998, sch 20 prescribes two procedures for the adoption of remedial orders (which can also be made in response to an adverse judgment of the European Court of Human Rights): a standard procedure and an urgent

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As of 31 July 2012, the UK courts have issued 27 declarations of incompatibility, eight of which were subsequently overturned on appeal.86 The overwhelming majority of the 19 declarations that have become final have resulted in legislative changes, with only one of these still under consideration as to how the incompatibility can be remedied.87 Although Parliament and the government are, legally speaking, able to disregard or reject declarations of incompatibility and maintain their own reading of the compatibility of the impugned legislation with the Convention, so far they have not done so in practice.88 Rather, they have heeded the courts’ views and taken steps to ensure compliance by amending the defective provisions, or committed themselves to doing so. This has even happened in the sensitive domain of counter-terrorism, as illustrated by the landmark case A v Secretary of State for the Home Department (better known as the Belmarsh Prison case).89 The nine applicants were all foreign nationals who had been detained for three years without charge or trial in Belmarsh Prison on suspicion of terrorism, and they all argued that their detention was unlawful on human rights grounds.90 Their detention had been made possible by virtue of two legal measures the validity of which the applicants sought to challenge: the 2001 Anti-Terrorism, Crime and Security Act, section 23 of which permitted indefinite detention without deportation of suspected international terrorists,91 and the 2001 Derogation Order,92 a piece of delegated legislation adopted by the Secretary of State that contained a derogation from Article 5 of the ECHR, which sets out the conditions under which individuals can be deprived of their liberty.93 The majority of the Law Lords94 procedure. Whereas under the former procedure the minister or secretary of state is obliged to first present a draft of the proposed order to Parliament, under the latter procedure the remedial order can be made without Parliament giving its approval beforehand, as it receives the order after it has been made. 86 Ministry of Justice, Responding to Human Rights Judgments: Report to the Joint Committee on Human Rights on the Government’s Response to Human Rights Judgments 2011–2012 (Cm 8432, 2012) Annex A. This Annex also contains information on the content of the declaration and the government’s response. 87 This concerned the judgment of the Registration Appeal Court (Scotland) in Smith v Scott [2007] CSIH 9, declaring s 3 of the Representation of the People Act 1983 incompatible with the Convention (providing that convicted prisoners cannot vote in parliamentary elections). This declaration is virtually identical to the ruling of the European Court of Human Rights in Hirst v United Kingdom (No 2) App no 74025/01 (6 October 2005). On this saga, see eg S Briant, ‘Dialogue, Diplomacy and Defiance: Prisoners’ Voting Rights at Home and in Strasbourg’ (2011) 3 European Human Rights Law Review 243; C Murray, ‘We Need to Talk: “Democratic Dialogue” and the Ongoing Saga of Prisoner Disenfranchisement’ (2011) 62 Northern Ireland Legal Quarterly 57. 88 This has been criticised by Adrian Vermeule, who argues that Parliament’s record of compliance ‘may unintentionally be preparing the ground for a day in which Parliament will be thought to violate a constitutional convention if it refuses to comply’ and that ignoring or overriding judicial declarations of incompatibility ‘in the long run . . . is necessary to the health of the Parliamentary organism’: ‘The Atrophy of Constitutional Powers’ (2012) 32 OJLS 1, 23–24. 89 A v Secretary of State for the Home Department (‘Belmarsh Prison Case I’) [2004] UKHL 56. 90 Deportation was not possible as a result of Art 3 ECHR, which lays down the prohibition on torture and has been interpreted by the European Court of Human Rights such that States cannot deport an individual if he or she would face a real risk of being subjected to treatment contrary to Art 3 in their country of origin (Soering v United Kingdom (1989) Series A no 161). This risk was deemed present for the detainees in question. 91 On the 2001 Anti-Terrorism Act, see A Tomkins, ‘Legislating against Terror: The Anti-Terrorism, Crime and Security Act 2001’ [2002] PL 2002. 92 The ability to adopt designated derogation orders under UK law is provided by s 14 HRA 1998, and these can be made in anticipation of a proposed derogation of the ECHR as per Art 15 thereof, allowing contracting parties to derogate from the Convention ‘in time of war or other public emergency threatening the life of the nation . . . to the extent strictly required by the exigencies of the situation’. 93 The derogation related to para 1(f) of Art 5 ECHR, which allows detention of a person ‘against whom action is being taken with a view to deportation or extradition’. The aim of the derogation order was to allow detention notwithstanding the fact that removal from the UK was prevented either temporarily or permanently. 94 The case was decided before the UK Supreme Court commenced operations, meaning that the Law Lords were the highest appeal court in the UK.

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accepted that the threshold criterion for derogations from the Convention – a public emergency threatening the life of the nation – had been satisfied.95 However, the legislation in issue was considered a disproportionate means to deal with the threat posed by terrorism to the UK’s security as well as unjustifiably discriminatory on grounds of nationality and immigration status, because it only allowed for the indefinite detention without charge or trial of foreign nationals.96 As Lord Hope explained: [T]he indefinite detention of foreign nationals without trial has not been shown to be strictly required, as the same threat from British nationals whom the government is unable or unwilling to prosecute is being met by other measures which do not require them to be detained indefinitely without trial. The distinction which the government seeks to draw between these two groups – British nationals and foreign nationals – raises an issue of discrimination. But, as the distinction is irrational, it goes to the heart of the issue about proportionality also. It proceeds on the misconception that it is a sufficient answer to the question whether derogation is strictly required that the two groups have different rights in the immigration context. So they do. But the derogation is from the right to liberty. The right to liberty is the same for each group. If derogation is not strictly required in the case of one group, it cannot be strictly required in the case of the other group that presents the same threat.97

The Lords therefore decided to quash the Derogation Order and declared section 23 of the 2001 Anti-Terrorism Act incompatible with the Convention. In response, the government swiftly replaced the impugned provisions with a new regime to deal with suspected terrorists that no longer contemplates differences in approach with reference to the suspect’s nationality.98 Various factors have been suggested to explain the respect shown by Parliament and the government to declarations of incompatibility issued by the UK courts. The government in office will normally feel considerable political pressure to give effect to the court’s judgment, as it will be wary of being characterised as condoning encroachments upon human rights by both the opposition and the public at large.99 Further, claimants dissatisfied with the absence of a legislative response to a declaration of incompatibility will probably take 95 Lord Hoffmann dissented. In this respect, the Lords showed considerable deference to the government’s assessment, with the question whether the threshold had been met considered ‘a pre-eminently political judgment’ (per Lord Bingham), although the Lords insisted that they had an important part to play in ensuring respect for the Convention, even in matters relating to national security. See for instance paras 37–42 of Lord Bingham’s speech, paras 176–78 of Lord Rodger’s speech, and para 196 of Lord Walker’s speech. 96 Lord Walker dissented from this conclusion, holding that the legislation in issue was justified in discriminating between British citizens and non-nationals and did not encroach upon human rights more than was strictly necessary. Lord Hoffmann did not express a view on this point. 97 A v Secretary of State for the Home Department [2004] UKHL 56, para 132. In A v Secretary of State for the Home Department (No 2) (‘Belmarsh Prison Case II’) [2005] UKHL 71, the Law Lords held that British courts cannot lawfully use in evidence statements that have or may have been obtained by torture. 98 This is laid down in the Prevention of Terrorism Act 2005, which entered into force on 11 March 2004, ie within six months of the declaration of incompatibility, which had been issued by the House of Lords on 16 December 2004. There has, however, been concern about whether the new regime, which allows the Secretary of State to apply to the High Court for control orders which deprive suspected terrorists of their liberty, is fully compatible with the Convention: see for instance the two reports of the Joint Committee on Human Rights, Prevention of Terrorism Bill: Preliminary Report (2004–05, HL 61, HC 389) and Prevention of Terrorism Bill (2004–05, HL 68, HC 334). Also on the HRA 1998 and anti-terrorist measures see D McKeever, ‘The Human Rights Act and AntiTerrorism in the UK: One Great Leap Forward by Parliament, but Are the Courts Able to Slow the Steady Retreat that has Followed?’ [2010] PL 110; more specifically on control orders, see C Walker, ‘The Threat of Terrorism and the Fate of Control Orders’ [2010] PL 4. 99 See eg M Elliott, ‘Parliamentary Sovereignty and the New Constitutional Order: Legislative Freedom, Political Reality and Convention’ (2002) 22 Legal Studies 319, 348.

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their case to Strasbourg and in the likely event that the European Court of Human Rights sides with them, thereby effectively endorsing the finding of the domestic court, the United Kingdom would be under an internationally binding obligation to ensure compliance with the Convention and this may very well involve changing the offending legislation. It has accordingly been commented that in such a scenario, the outcome would be substantially similar to that which would have obtained if remedial action had immediately been taken, ‘but the applicant – and the government – would have been put to a great deal of additional time, trouble and expense’.100 An important role is further played by the Joint Committee on Human Rights (JCHR), which was established two years after the adoption of the HRA.101 One of its tasks is to monitor the way in which the government gives effect to declarations of incompatibility, whereby it focuses on the promptness and adequacy of the government’s response and, in the event that the government disagrees with the court’s assessment, the reasons put forward to sustain this position.102 In this respect, the JCHR is required to submit reports to both Houses of Parliament on proposals for remedial orders made under section 10 of the HRA 1998. One of the JCHR’s concerns has been that there have been instances where the government has been (excessively) tardy in responding to a judicial declaration of incompatibility. It accordingly proposed a timetable for the government to adhere to,103 the principle of which has been accepted.104 The JCHR should be informed of any new declaration of incompatibility within 14 days of it being issued, with the government expected to communicate its preliminary view on how to proceed within one month and a final decision on the steps, if any, to take no later than six months after the conclusion of the court proceedings. Against this background, several commentators have argued that declarations of incompatibility are, practically speaking and from the legislature’s perspective,105 not all that different from judicial decisions striking down legislation that are final and binding: Although formally Parliament has the freedom to ignore such declarations, the constitutional, political and legal realities are such that it will need very strong justification indeed to do so. The political and legal consequences involved in ignoring or rejecting a declaration of incompatibility,

100 ibid, 349; see also A Kavanagh, Constitutional Review under the UK Human Rights Act (Cambridge, Cambridge University Press, 2009) 284–86 with further references. 101 The JCHR is also responsible for monitoring the government’s response to adverse judgments of the European Court of Human Rights. Generally on the JCHR see eg F Klug and H Wildbore, ‘Breaking New Ground: The Joint Committee on Human Rights and the Role of Parliament in Human Rights Compliance’ [2007] European Human Rights Law Review 231. 102 The most recent general examination (ie independent of specific declarations and related remedial legislation and with due attention to systemic issues) can be found in Joint Committee on Human Rights, Enhancing Parliament’s Role in Relation to Human Rights Judgments (2009–10, HL 85, HC 455). 103 Joint Committee on Human Rights, Monitoring the Government’s Response to Court Judgments Finding Breaches of Human Rights (2006–07, HL 128, HC 728) paras 112–14 and 119; Joint Committee on Human Rights, Making of Remedial Orders (2001–02, HL 58, HC 473). 104 Joint Committee on Human Rights, The Work of the Committee in the 2001–2005 Parliament (2004–05, HL 112, HC 552) paras 117–28. The government has however been unwilling to firmly commit to a rigid timetable. 105 There clearly is a difference for the claimant, who will not be afforded any immediate relief if a declaration of incompatibility is issued, given that such declarations do not detract from the validity of the legislation in respect of which it is made. As such, whether the claimant will derive any benefit from this declaration for his or her particular situation is dependent on whether any remedial action is taken in response to the declaration and in certain instances also on whether the legislative changes will apply retrospectively.

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may be sufficient to convert the nominally declaratory statement into one which is effectively final in almost all cases.106

As such, the possibility for Parliament to override disagreeable judgments delivered by UK courts under the HRA 1998 has to date remained a largely theoretical option. Finally, political scrutiny of legislation for its compatibility with Convention rights also takes place prior to the adoption of new acts of parliament. When introducing a bill to Parliament, the HRA 1998 places the responsible minister under a duty to make a statement that in his view, the provisions in the bill ‘are compatible with the Convention rights’ or declare that he is unable to make such a statement of compatibility, but nevertheless wishes to move forward with the bill.107 These ministerial statements and the bills to which they relate are scrutinised by the JCHR and this culminates in reports that have been credited as ‘vital in drawing the attention of both Houses to possible compatibility problems’.108 That said, while the post-HRA practice of systematically considering whether bills are in line with the Convention during the legislative process has undeniably produced positive results from a human rights perspective, it is no panacea and several declarations of incompatibility have concerned provisions enacted after the HRA 1998 came into force. ii. Poland: Non-Finality of Judgments Handed Down by the Trybunał Konstytucyjny before 1997 We saw in chapter two that the Polish constitutional tribunal was established in 1985 by the Communist regime as a concession to growing public pressure for some form of judicial constitutionality control.109 However, allowing a judicial body to review statutes in the light of the constitution amounted to a deviation from a key tenet of orthodox Communist thinking, which conceived of Parliament as ‘the supreme organ of State authority’110 and considered constitutional adjudication ‘a limitation of the sovereign rights of the people’.111 106 See Kavanagh, Constitutional Review under the UK Human Rights Act (n 100) 287–88 (emphasis in original) and further references listed there. Note also the judgment of the European Court of Human Rights in Burden v United Kingdom App no 13378/05 (ECtHR, 29 April 2008) para 43, holding that declarations of incompatibility are not presently considered a remedy that must be exhausted for the case to be admissible in Strasbourg, while indicating that ‘it cannot be excluded that at some time in the future the practice of giving effect to the national courts’ declarations of incompatibility by amendment of the legislation is so certain as to indicate that section 4 of the Human Rights Act is to be interpreted as imposing a binding obligation. In those circumstances, . . . applicants would be required first to exhaust this remedy before making an application to the Court.’ 107 HRA 1998, s 19. To date, this latter possibility has been used only once, in relation to the Communications Act 2003 – prompted in particular by uncertainty on the part of the government as to whether the prohibition on political advertising contained in the act infringed freedom of expression. In R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15, the House of Lords later held that the act was in fact compatible with Convention rights. 108 House of Lords Constitution Committee, Relations between the Executive, the Judiciary and Parliament (HL 2007–07, 151) para 91. In view of the fact that courts have ‘the central constitutional role in upholding respect for human rights’, the House of Lords Constitution Committee (on which, see ch 1) has also explored additional ways in which this judicial mandate can be exercised and has encouraged the government and the judiciary to consider whether there is room to make use of advisory declarations on the compatibility of bills with the Convention: House of Lords Constitution Committee, Relations between the Executive, the Judiciary and Parliament: Follow-Up Report (HL 2007–08, 177) paras 27–28. 109 ch 2, section III-B(v). A 1982 constitutional amendment prescribed the establishment of the Trybunał Konstytucyjny (Polish constitution, Art 33a(2)), but the necessary implementing legislation was not adopted until three years later, in 1985, and it was also in that year that the first judges were appointed. 110 See 1952 Polish constitution, Art 20. 111 See S Rozmaryn, ‘Kontrola konstytucyjnosci ustaw: Dokonzenie’ (1948) 12 Panstwo 1 Prawo 36, referred to in M Brzezinski and L Garlicki, ‘Judicial Review in Post-Communist Poland: The Emergence of a Rechtsstaat?’ (1995) 13 Stanford Journal of International Law 13, 16.

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As such, the Communist Party sought to curb the role that the constitutional tribunal could play in the legal order by circumscribing its powers in several respects. The most important of these concerned the lack of finality of decisions holding that an act of parliament did not comport with constitutional rules and principles.112 Such rulings would not automatically bring about the abrogation of the objectionable law, but had instead to be presented to Parliament for further examination.113 Within six months, Parliament had to make a choice: it could either accept the finding of unconstitutionality or it could overrule the judgment by means of a resolution adopted by a two-thirds majority vote.114 In the first case, Parliament would be legally required to redress the constitutional defects identified by the Trybunał Konstytucyjny, up to and including the elimination of the law from the legal system if such was necessary to comply with the tribunal’s decision. In the latter event, the Trybunał Konstytucyjny was barred from conducting a second review of the relevant statute.115 In view of the decidedly hostile political climate surrounding its birth, the tribunal initially proceeded cautiously and refrained from challenging the hegemony of Parliament. During its first three years – that is, from 1986 until the fall of Communism in 1989 – it examined only three acts of parliament and found just one of those partially unconstitutional.116 There was thus little need for, and interest in, using the override. After the collapse of the Communist regime, it was decided to retain the Trybunał Konstytucyjny as guardian of the constitution and expand its powers. A number of prior constraints were however kept in place, including the provisional character of constitutional judgments. Notwithstanding the continued possibility of being overridden by Parliament, the constitutional tribunal became more assertive in reviewing statutes and regularly found them constitutionally wanting. In response, Parliament in a number of cases proceeded to overrule the Trybunał Konstytucyjny’s invalidation of its work. This happened, for example, with a 1995 law that sought to increase the income tax rate for top incomes from 40 to 45 per cent. The president had referred the law for scrutiny to the constitutional tribunal, which held amongst other things that it violated the prohibition of retroactivity, given that the law would be applicable to the entire tax year, but would only enter into force in late January.117 Following parliamentary deliberations, the tribunal’s declaration of unconstitutionality was set aside with a 303–130 vote.118 112 In Decision W 1/95 of 5 September 1995, the Trybunał Konstytucyjny held that the override possibility could not be used in response to decisions handed down at the conclusion of proceedings involving a priori review of legislation before its promulgation, which may be initiated only at the behest of the president. Judgments of the constitutional tribunal involving a review of sub-statutory acts were also not subject to the rule of conditional validity, but were granted binding force (Polish constitution, Art 33a(3)). Other limitations were that the Trybunał Konstytucyjny could only examine laws that entered into force after the tribunal’s establishment established; that there was no right for individuals to submit petitions directly to the constitutional tribunal; and the constitutional tribunal was prevented from examining the conformity of laws with international treaties, such as the International Covenant on Civil and Political Rights. For discussion, see eg M Brzezinski, ‘The Emergence of Judicial Review in Eastern Europe: The Case of Poland’ (1993) 41 American Journal of Comparative Law 153. 113 1952 Polish constitution, Art 33a(2), inserted following a 1982 constitutional amendment. 114 1985 Constitutional Tribunal Act, Art 7(4). The time frame within which Parliament was supposed to act has changed. The initial version of the relevant provision of the Constitutional Tribunal Act provided that Parliament should decide how to respond to the tribunal’s findings of unconstitutionality during that or the next legislative session. Following the transition, this was changed to a requirement to decide on the faith of judicial declarations of unconstitutionality within six months. 115 1985 Constitutional Tribunal Act, Art 7(3). 116 Decision K1/88 of 30 November 1988. 117 Decision K 1/95 of 15 March 1995. 118 H Schwartz, The Struggle for Constitutional Justice in Post-Communist Europe (Chicago, University of Chicago Press, 2000) 61.

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It should be noted that, quantitatively speaking, the Polish Parliament successfully overrode approximately 10 per cent of the Trybunał Konstytucyjny’s decisions which held that the contested legal provisions violated the constitution.119 Despite this rather modest number of overrides as compared to the overall number of rulings striking down legislation, the Trybunał Konstytucyjny’s judges expressed their disquiet about Parliament’s tendency to be influenced by irrelevant political considerations in deciding what they essentially perceived as legal problems: ‘Parliamentary decisions as to whether to uphold a Tribunal ruling are frequently guided by non-constitutional factors, even though the consistency of a law with the Constitution is a legal, and not a political question.’120 A case that illustrates the political dimension associated with making use of the override device involves a 1992 judgment holding that the new pension act was unconstitutional.121 The act was part of a legislative effort to cope with Poland’s difficult economic situation, but the Trybunał Konstytucyjny gave short shrift to the relevance of this rationale: ‘in democratic states, based on the rule of law, the possibility to take away benefits once granted is very restricted regardless of the financial situation of the state.’ Brzezinski and Garlicki describe the aftermath of this ruling as follows: Members of Parliament attacked the Tribunal for meddling with the country’s economic reform program and claimed that the Tribunal was trying to subsume the Parliament’s legislative role. The battle pitted political blocs against one another. Debate frequently degenerated into wrangling over compromise solutions, with parliamentary caucuses offering to uphold part of the Tribunal’s ruling in exchange for rejection of the others. The government quickly became enmeshed in the controversy and, emphasizing the state’s lack of funds, aggressively lobbied parliamentary deputies to reject the Tribunal’s decision. Prime Minister Jan Olszewski declared that upholding the Tribunal’s decision “would mean ruining the state”. The Minister of Finance, Andrzej Olechowski told Parliament that “[u]pholding of the Constitutional Tribunal ruling is bound to lead to a catastrophe in public finances, halt the reforms, aggravate the recession, delay work on this year’s budget, as well as shattering the efforts to restore Poland’s credibility in international relations.” The Minister of Finance threatened to resign, and the Prime Minister vowed that his entire cabinet would step down if the Tribunal’s decision were not overturned.122

Although Parliament finally voted to endorse the constitutional tribunal’s decision – prompting the resignation of the finance minister – this was something of a pyrrhic victory as the objectionable provisions were never abrogated. In this respect, this episode also demonstrates the use of a political practice that had become quite popular in Poland by the mid-1990s. Following transition, the political scene had become more pluriform and as a result, obtaining the requisite two-thirds vote to overturn one of the Trybunał Konstytucyjny’s decisions, even if this was considered politically desirable, was no longer always politically feasible for the governing parties. Since judgments striking down legislation however required a parliamentary follow-up in order to be legally effective, when the 119 See L Garlicki, ‘Das Verfassungsgericht und das Parlament (Die Zurückweisung von Entscheidungen des polnischen Verfassungsgerichtshof durch den Sejm)’ in M Hofmann and H Küpper (eds), Kontinuität und Neubeginn: Staat und Recht in Europa zu Beginn des 21. Jahrhunderts (Festschrift Georg Brunner) (Baden-Baden, Nomos, 2001). More particularly, and in chronological order, the following decisions were (at least in part) overturned by parliament: Decision K 3/88 of 4 October 1989; Decision K 14/91 of 11 February 1992; Decision K 4/91 of 25 February 1992; Decision K 13/93 of 29 March 1994; Decision K 1/95 of 15 March 1995; Decision K 16/93 of 10 January 1995; Decision K 18/95 of 9 January 1996; Decision K 27/95 of 20 November 1996. 120 Statement laid down in the 1992 resolution of the General Assembly of the Trybunał Konstytucyjny (comprising all judges of the tribunal). 121 Decision K14/91 of 11 February 1992. 122 Brzezinski and Garlicki, ‘Judicial Review in Post-Communist Poland’ (n 111) 46–47.

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majority remained inert, the upshot was a situation akin to that where a formal override could actually be realised. In Decision W 6/93, the Trybunał Konstytucyjny condemned this practice, holding that if Parliament had failed to act within six months, the impugned law would lose its legal force on the day that an announcement by the tribunal’s president to that effect appeared in the official journal.123 The override power was abolished in 1997 with the adoption of a new constitution, which declares that judgments of the Trybunał Konstytucyjny ‘shall be final’.124 A two-year transitional period was however provided for, so as to accommodate factions that had expressed unease over strengthening the place of the constitutional tribunal in the Polish constitutional order.125 During this period of time Parliament was still able to overturn certain constitutional judgments, namely those concerning statutes adopted prior to the entry into force of the new constitution, and actually did so in three instances.126

C. Constitutional Overrides None of the countries under study that have separate constitutional courts currently prescribe that constitutional judgments lack finality. Still, this does not mean that the judges will always have the last word on the constitutional issues that have been referred to them for determination: the political institutions may reverse, modify or avoid rulings that they disagree with by amending the constitution. This may involve enshrining in that foundational text an interpretation of a right or competence different from the reading propounded by the court or allowing for the execution of a certain policy choice that the court initially rejected as unconstitutional.127 The ability of the political branches to change the constitution to override decisions handed down by the constitutional court is said to enhance the democratic acceptability and legitimacy of having a system of constitutional adjudication. To be clear, the examination below does not cover the situation where the constitution is amended in response to a ruling delivered in the context of the procedure for a priori review of treaties, including those by which a country would become member of an international or supranational organisation. We saw in chapter three that in several countries, international agreements may be referred to the constitutional court for a preventive check in light of the constitution and that any incompatibilities identified by the judges must be 123 Garlicki, ‘Das Verfassungsgericht und das Parlament’ (n 119) 361 remarks that between 1994 and 1998, 38 of such announcements were published. 124 Polish constitution, Art 190(1). In addition, the Trybunał Konstytucyjny was given the power to defer the date of annulment of constitutionally objectionable legislation for up to 18 months, as discussed in ch 6, section V-B(ii). These and other changes to the functioning of the Trybunał Konstytucyjny are also discussed in L Garlicki, ‘La reforme de la juridiction constitutionnelle en Pologne’ in Annuaire international de justice constitutionnelle (Paris, Economica, 1997). 125 Polish constitution, Art 239(1). Furthermore, this competence was only available in relation to decisions delivered when the Trybunał Konstytucyjny was adjudicating abstract constitutionality challenges, ie not when it handed down preliminary rulings or rendered judgments in response to constitutional complaints filed by individuals. 126 Decision K 22/96 of 17 December 1997; Decision K 38/97 of 4 May 1998; Decision K 10/98 of 15 September 1998. 127 More generally on constitutional amendments and other ways in which the meaning given to constitutional provisions can change, see D Oliver and C Fusaro (eds), How Constitutions Change: A Comparative Study (Oxford, Hart Publishing, 2011).

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eliminated by means of a constitutional revision before ratification will be possible.128 The rationale for entrusting the constitutional court with the task of conducting a priori review of treaties is precisely to enable it to indicate to the political institutions whether a constitutional amendment is required to give effect to their decision to become a party to the pertinent treaty. As such, the enactment of a constitutional amendment in the wake of the court’s judgment should not be seen as a derogation therefrom, but as the political branches heeding the court’s prescription that there are constitutional obstacles that stand in the way of immediate ratification. The following paragraphs feature case studies from those jurisdictions where the constitution has in fact been revised with the aim of overturning or responding to judgments of the constitutional court. i. France The French constitution has been amended on several occasions to overturn decisions of the Conseil constitutionnel. This occurred for the first time in 1993, concerning a judgment on the right to asylum;129 notably for constitutionalists of the positivist school, this override confirmed the democratic legitimacy of the Conseil constitutionnel and attested that its existence was not to be seen as an affront to the principle of national sovereignty.130 The constitution was again modified in response to a couple of rulings of the Conseil constitutionnel on gender parity in electoral lists. In November 1982, conservative MPs referred an act for constitutional review that sought to amend the rules governing municipal elections. Section 4 thereof dealt with the election of municipal councillors in communes with 3,500 or more inhabitants and stipulated that these would take place with the help of a list system based on a form of proportional representation, whereby political parties could not have more than 75 per cent of candidates of one sex on their lists.131 In their referral, the deputies had objected exclusively to the proposed system of proportional representation; the quota requirement was examined by the Conseil constitutionnel of its own motion and failed to pass muster: [6] By Article 3 of the Constitution: ‘National sovereignty shall belong to the people, who shall exercise it through their representatives and by means of referendum. No section of the people nor any individual may arrogate to itself, or to himself, the exercise thereof. Suffrage may be direct or indirect as provided by the Constitution. It shall always be universal, equal and secret. All French citizens of either sex who have reached their majority and are in possession of their civil and polit ical rights may vote as provided by statute’ and by Article 6 of the Declaration of Human and Civic Rights: ‘All citizens, being equal in its eyes, shall be equally eligible to all high offices, public positions and employments, according to their ability, and without other distinction than that of their virtues and talents’. 128 Namely in France, Hungary, the Czech Republic, Poland, Germany and Spain as explained in ch 3, section III-A(i)(a). A similar possibility exists at EU level, with the Court of Justice having the competence to give opinions on the compatibility of international agreements with the EU Treaties under Art 218(11) TFEU. In this context, consider in particular Opinion 2/94 Accession of the Community to the European Human Rights Convention [1996] ECR I-1759, where the Court held that under the treaties as they then stood, it was not possible for the (then) EC to accede to the ECHR, and the subsequent amendment of Art 6 TEU by the Lisbon Treaty, which now stipulates that the Union ‘shall accede’ to the ECHR. 129 Décision no 93-325 DC of 13 August 1993, Act on the control of immigration and conditions of entry, reception and residence for aliens in France. 130 See D Rousseau, Droit du contentieux constitutionnel, 9th edn (Paris, Montchrestien, 2010) 549–51. 131 Further detail on the background to this act can be found in L Favoreu and L Philip, Les grandes décisions du Conseil constitutionnel, 12th edn (Paris, Dalloz, 2003) 554–60.

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[7] It is clear from a combined reading of these provisions that citizenship confers a right to vote and stand for election on identical terms on all those who are not excluded on grounds of age, incapacity or nationality, or on any ground related to the preservation of the liberty of the voter or the independence of the person elected; these constitutional principles preclude any division of persons entitled to vote or stand for election into separate categories; this applies to all forms of political suffrage, in particular to the election of municipal councillors. [8] It follows that the rule whereby, for the establishment of lists presented to voters, a distinction is made between candidates on grounds of sex, is contrary to the constitutional principles set forth above.132

A similar fate befell a 1998 act governing regional elections, providing that each electoral list should ensure parity between male and female candidates, which was successfully challenged by senators on the ground, inter alia, that such an obligation was contrary to the earlier judgment of the Conseil constitutionnel.133 In the aftermath of the adoption of this 1998 act and even before the Conseil constitutionnel had rendered its decision, the government had proposed to amend the constitution to promote the participation of women in public life. Although it was of the opinion that the bloc de constitutionalité as it then stood would permit statutes imposing sex quotas for elected office,134 the government recognised that the Conseil constitutionnel had decided otherwise and that, consequently, it would be necessary to revise the text of (then) Article 3 of the constitution: le Conseil constitutionnel a estimé, par une décision du 18 novembre 1982, que les règles et principes applicable à la représentation politique interdisaient toute distinction entre les hommes et les femmes. Aussi convient-il de compléter l’article 3 de la Constitution, qui affirme le caractère indivisible et universel de la souveraineté nationale, afin d’assurer la conciliation de ces principes avec l’objectif d’un égal accès des femmes et des hommes aux mandats et fonctions. Tel est l’objet du présent projet de loi constitutionnelle.135

Both Houses of Parliament wholeheartedly endorsed the proposal for a constitutional amendment, with the second sex quota ruling of the Conseil constitutionnel serving only to confirm the need to act so as to enable the adoption of policies for the purpose of achieving gender equality.136 In July 1999, parliamentarians accordingly voted in favour of adding a new sentence to Article 3, proclaiming that ‘Statutes shall promote equal access by women 132 Décision 82-146 DC of 18 November 1982, Act amending the Electoral Code and the Code of Municipalities and governing the election of municipal councillors and the conditions for entry of French nationals residing outside France in electoral registers. The decision was premised on the idea of a unitary and indivisible conception of republication citizenship and as such built on Décision 91-290 DC of 9 May 1991, Act on the statute of the territorial unit of Corsica, where the Conseil constitutionnel held that the notion of ‘the French people’ was of constitutional status and accordingly prevented recognition of a ‘Corsican people’. 133 Décision no 98-407 DC of 14 January 1999, Act determining the mode of election of regional councillors and of councillors in the Corsican Assembly, and the operation of regional councils. 134 In this regard, the government pointed to the preamble to the 1946 constitution, s 3 (which is part of the bloc de constitutionalité as explained in ch 5, section V), which states that ‘The law guarantees women equal rights to those of men in all spheres’. 135 Projet de loi constitutionnelle no 985 relatif à l’égalité entre les femmes et les hommes, déposé le 18 juin 1998. [Translation: ‘The Conseil constitutionnel has considered, in a decision of 18 November 1982, that the rules and principles applicable to political representation prohibit any distinction between men and women. It is therefore necessary to complete article 3 of the constitution, which affirms the indivisible and universal character of national sovereignty, with a view to ensure the reconciliation between these principles with the objective of the equal access of women and men to mandates and functions. That is the purpose of the present proposal for a constitutional act.’] 136 At second reading, there were 289 senators in favour, 8 against and 10 abstentions; the National Assembly was unanimously in favour of the proposed amendment.

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and men to elective offices and posts’.137 Bolstered by the constitutional revision, within a year Parliament adopted another law to promote equal access of men and women to public office. The act provided, amongst other things, that for certain elections,138 the difference between the number of candidates of each sex on any list could not be more than one; that for all elections conducted by a single-ballot list system, ‘each list shall be composed alternately of a candidate of each sex’; and with regard to elections conducted by a two-ballot list system, ‘within any segment of six candidates in the order of presentation on the list, there shall be an equal number of candidates of each sex’.139 The act was immediately challenged by a group of senators, who argued that the quota provisions were unconstitutional on the ground, inter alia, that they were contrary to the earlier judgments on gender equality for electoral lists. The Conseil constitutionnel however rejected this objection, explaining that such a line of reasoning was flawed for failing to recognise that the constituent authority was perfectly entitled to introduce new constitutional clauses and thereby deprive its decisions of their force of res judicata: [6] In the first place, there is nothing, subject to Articles 7, 16 and 89 of the Constitution, to preclude the constituent authority from inserting in the Constitution new provisions which derogate from constitutional rules or principles in the situations they concern; such is the case of the provisions referred to above, which have the object and effect of removing the constitutional obstacles recorded by the Conseil constitutionnel in the above-mentioned Decisions; accordingly, it was not legitimate for the applicants to plead that those decisions had the force of settled law. [7] In the second place, it follows from the fifth paragraph of Article 3 of the Constitution, read in the light of the legislative history of the Constitutional Act of 8 July 1999, that the constituent authority’s intention was to empower the legislature to establish any mechanism that would give full effect to the principle of equal access for women and men to electoral mandates and elective offices; to this end, the legislature henceforth has the power to adopt provisions to attain the objective either on an exhortatory or on a mandatory basis; but it must reconcile the new constitutional provisions with the other constitutional rules and principles from which the constituent authority did not intend to derogate. [8] The contested provisions of the Act referred, laying down mandatory rules concerning the presence of candidates of each sex in the lists of candidates at proportional elections, are within the measures that the legislature can henceforth adopt under the new provisions of Article 3 of the Constitution; they violate none of the constitutional rules or principles from which the Constitutional Act did not intend to derogate.140 137 Constitutional Act no 99-569 of 8 July 1999. This act also amended Art 4 of the constitution (dealing with political parties) to place responsibility for attaining such equal access in part on political parties: ‘They [political parties and groups] shall contribute to the implementation of the principles set out in the fifth paragraph of Article 3 as provided by statute.’ During subsequent amendments of the constitution, the new fifth paragraph added to Art 3 was moved to Art 1, and Art 4 was amended accordingly to reflect this change. 138 Namely municipal elections in communes with 3,500 or more inhabitants, Senate elections in departments where proportional representation applies, the election of councillors in the Corsican Assembly, elections to the European Parliament, and cantonal elections in the local authority of Saint-Pierre-et-Miquelon. 139 If parties failed to present an equal number of male and female candidates on electoral lists for general elections, the financial support available from the State by way of amounts allocated on the basis of the number of votes cast for each of them could be reduced by half. If the list presented did not comply with the parity system, the list could simply be rejected when registered by the prefectoral administration. 140 Décision no 2000-429 DC of 30 May 2000, Loi tendant à favoriser l’égal accès des femmes et des hommes aux mandats électoraux et fonctions electives; see also Décision no 2000-430 DC of 29 June 2000, Loi organique tendant à favoriser l’égal accès des femmes et des hommes aux mandats de membre des assemblées de province et du congrès de la Nouvelle-Calédonie, de l’assemblée de la Polynésie française et de l’assemblée territoriale des îles Wallis-et-Futuna, on a law prescribing the alternation of men and women candidates on electoral lists for New Caledonia, Polynesia

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A third override occurred in 2003, when the constitution was modified to allow decentralised territorial units to derogate from statutes that would ordinarily be applicable to them,141 following a judgment that had declared an earlier attempt to permit such derogations on an experimental basis to the Corsican assembly unconstitutional.142 Interestingly, a group of senators thereupon sought to challenge the lawfulness of the pertinent constitutional amendment before the Conseil constitutionnel. The latter however clarified that it lacks the competence to pronounce on the validity of constitutional revisions, something that was already implicit in its third decision on the permissibility of gender quotas.143 ii. Italy In Italy too, the constitution has been modified to overturn a judgment of the Corte costituzionale annulling several statutes that were designed to promote gender parity on electoral lists.144 In 1993, the Italian electoral system was substantially reformed and the fear was expressed that the new voting system could have an adverse effect on the representation of women in political life.145 As a consequence, new legislation was adopted which sought to combat this risk: no more than two-thirds of the candidates on lists for local and regional elections could be of the same sex and lists for parliamentary elections should provide for the alternation of male and female candidates.146 When the validity of these norms was questioned in a preliminary reference, the Corte costituzionale ruled that they indeed failed to pass constitutional muster: Given, therefore, that Article 3, first paragraph and notably Article 51, first paragraph [of the Constitution] guarantee absolute equality between the sexes as regards access to any elective public office, in the sense that belonging to one or another sex can never be considered an eligibility requirement, it follows that the same must be affirmed as regards the eligibility to stand as a candidate. Indeed, the possibility of being presented as a candidate by those who (whether they are organs of parties or groups of voters), by virtue of diverse electoral laws, administrative or regional policies, have been attributed the right to present lists of candidates or single candidates, according to the various electoral systems in force, is the only preliminary and necessary condition in order to be elected, and then specifically to benefit from the passive right to vote enshrined in the first paragraph of Article 51, already mentioned. The legal norm, which imposes on the presenta-

and the Wallis and Futuna islands. In contrast, the Conseil constitutionnel rejected legislation that sought to impose gender quotas for elections to the High Council of the Judiciary (Décision no 2001-445 DC of 19 June 2001, Loi organique relative au statut des magistrats et au Conseil supérieur de la magistrature) and for the composition of governing bodies of public and private enterprises (Décision no 2006-533 DC of 16 March 2006, Loi rélative à l’égalité salariale entre les femmes et les hommes), reasoning that the 1999 constitutional amendment permitting such quotas only applies to elections to political mandates and offices. 141 Loi constitutionnelle no 2003-276 of 28 March 2002, relative à l’organisation décentralisée de la République, which inter alia added a new fifth paragraph to Art 72 of the constitution. 142 Décision no 2001-454 DC of 17 January 2002, Loi relative à la Corse. 143 Décision no 2003-469 DC of 26 March 2003, Révision constitutionnelle relative à l’organisation décentralisée de la République. 144 The Spanish constitutional tribunal was also asked to rule on the constitutionality of a law requiring that lists for all kinds of elections must not comprise more than 60% of candidates of the same sex, whereby this requirement had to be observed for each segment of five candidates, and – unlike its colleagues in France and Italy – upheld this electoral gender quota in sentencia 12/2008 of 29 January 2008. 145 Basically, the old electoral system was based on proportional representation and the new system sought to combine proportional representation for a quarter of the seats in the Chamber of Deputies with a system of plurality voting for three-quarters of the seats. 146 Respectively law no 81 of 25 March 1993; law no 43 of 23 February 1995; law no 277 of 4 August 1993.

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tion of candidates for any elective public office any form of quotas based on the sex of the candidates, is therefore contrary to the constitutional parameters invoked. . . . But if such legislative measures [to promote the achievement of a situation of equality between the sexes], deliberately unequal, can certainly be taken to remove situations of social or economic inferiority or, generally, to compensate or erase material inequalities between individuals (as a precondition for the full exercise of fundamental rights), [such measures] may not instead directly affect the content of those same rights strictly guaranteed in equal measure to all citizens as such. In particular, as regards the passive right to vote, the non-derogable rule established by the constituent assembly in the first paragraph of Article 51, is one of absolute equality, so that any differentiation on account of gender is objectively discriminatory, decreasing the concrete substance of a fundamental right for certain citizens in favour of others, belonging to a group that is considered disadvantaged.147

This ruling has been qualified as a result of two constitutional amendments. The first of these was adopted in 2001, in the context of a comprehensive reform of the provisions governing the relationship between the State and the regions. At the time, it was for various reasons not feasible to reform Article 51 of the constitution to derogate from the Corte costituzionale’s judgment and is was consequently decided to include the promotion of gender parity in Article 117, which regulates the division of legislative competences between the two levels of government.148 More particularly, paragraph 7 thereof insists that ‘Regional laws have to remove all obstacles which prevent the full equality of men and women in social, cultural and economic life, and promote equal access of men and women to elective offices’.149 The government subsequently attacked a law seeking to do just that. The regional statute of Valle d’Aosta prescribed that ballots for elections of its regional council should include candidates of both sexes and the State argued that this requirement was incompatible with the interpretation given to Articles 3 and 51 of the constitution in the Corte costituzionale’s earlier judgment. The challenge was however dismissed, and the decision shows that the Corte costituzionale was enticed by the new wording of Article 117 to change its attitude towards the permissibility of legislative efforts to promote a better gender balance among those seeking selection to public office: In the first place, it must be observed that the contested provisions do not elevate belonging to one or another of the sexes to an additional requirement of eligibility, or even of ability to stand as candidate, of individual citizens. The obligation imposed by law, and the resultant sanction of invalidity [of the electoral list], concern only the lists and those individuals presented on them. . . . The constraint that the impugned norm introduces as regards the freedom of parties and groups to present lists must now be evaluated in light of the relevant constitutional framework that has evolved compared to that in force at the time of the judgment of this Court invoked by the applicant in support of today’s question of constitutional legitimacy. [The Corte costituzionale then refers to constitutional law no 2/2001 stipulating that the electoral laws of the regions should promote a level playing field for access to elections in order to achieve a balanced representation of the sexes and Art 117 of the Constitution]

Sentenza 422/1995 of 6 September 1995, considerato in diritto 4 and 6 (my translation). E Palici di Suni, ‘Gender Parity and Quotas in Italy: A Convoluted Reform Process’ (2012) 35 West European Politics 380, 384. 149 Constitutional law no 3 of 18 October 2001. 147 148

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[These new constitutional provisions] therefore pose an explicit objective of rebalancing and establish a duty for promotional action for equal access to [regional] assemblies, referring specific ally to electoral legislation. The impugned provisions of the electoral law of Valle d’Aosta operate in this area, introducing a legal constraint with respect to the choices of those who compose and present the lists. What, in short, was hoped could be achieved through choices in the statutes or regulations of parties (which, so far have in general not shown a great propensity to translate spontaneously in self-regulation provided for and effectively followed) is here pursued with the effect of a legal constraint. A constraint which is fully justified in the light of today’s promotional objective explicitly contemplated by the statutory norms. . . . In the end – reiterating that the constraint is limited to the moment of the composition of the lists and does not affect in any way the rights of citizens, the freedom of voters to cast their vote or the equal chance of lists and candidates and of candidates in electoral competition, nor the unitary character of elective representation – the disputed measure can certainly be considered a legitimate expression of the legislative intent to realise the promotional objective expressly sanctioned by the special statute in view of the objective of balanced representation.150

A further constitutional amendment was introduced in 2003, taking the form of the addition of a new sentence to Article 51 of the constitution which authorises the State to adopt ‘specific measures in order to promote equal chances for men and women’.151 In a judgment handed down in 2009, the Corte costituzionale made reference to both constitutional amendments to further revise its case law in this area when it upheld a law prescribing gender quotas for regional elections in Campania and offering voters the chance to express a preference for two candidates of the same list on the ballot, provided they are each of a different gender.152 The case of gender equality in the political domain was not the only instance where the Italian constitution was amended to respond to the Corte costituzionale. It had happened before, in 1999, when Article 111 of the constitution was changed to allow for a more adversarial trial system after the Corte costituzionale had rebuffed earlier legislative reform efforts that sought to modify the strongly inquisitorial model traditionally underlying Italian criminal procedure.153

Sentenza 49/2003 of 10 February 2003, considerato in diritto 3.1; 4 and 5 (my translation). Constitutional law no 1/2003. Although this amendment had not yet entered into force at the time that the Corte costituzionale delivered its ruling in the Valle d’Aosta case – the judgment was delivered in February, the amendment was signed by the president of the republic in May of the same year – it was undoubtedly aware of the upcoming change of Art 51 of the constitution. Political support for the reform was found in the earlier amendment of Art 117 of the constitution, the experience with gender parity measures and constitutional reform in France and the proclamation of the (then not legally binding) EU Charter of Fundamental Rights. See M Guadagnini, ‘Gendering the Debate on Political Representation in Italy: A Difficult Challenge’ in J Lovenduski (ed), State Feminism and Political Representation (Cambridge, Cambridge University Press, 2005) 144–45. Following the two amendments, the statutes regulating regional and municipal elections and those for the European Parliament have been either replaced or modified to provide for various forms of gender parity. Similar legislation to promote gender equality in elections to the House of Representatives has yet to be enacted. 152 Sentenza 4/2010 of 15 December 2009. 153 Sentenza 24/1992 of 22 January 1992; sentenza 254/1992 of 18 May 1992; sentenza 255/1992 of 18 May 1992; sentenza 361/1988 of 26 October 1998. The reform of Art 111 of the constitution was effected by constitutional law no 2/1999. For discussion, see W Pizzi and M Montagna, ‘The Battle to Establish an Adversarial Trial System in Italy’ (2004) 25 Michigan Journal of International Law 429. 150 151

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iii. Germany Since its promulgation in 1949, the German Basic Law was repeatedly revised and one of its latest modifications has been prompted by a judgment of the Bundesverfassungsgericht concerning the administration of certain social benefits.154 Under the Social Insurance Code, the federal legislature had entrusted the payment of allowances to job seekers jointly to the local communities and the federal employment agency, which were to establish mixed ‘labour consortia’ for this purpose. Several municipalities and Länder filed a constitutional complaint against the relevant provision, asserting that it breached their constitutional guarantee of self-government.155 In a ruling delivered in late December 2007, the Bundesverfassungsgericht agreed, holding that the Basic Law in principle does not allow for the mixed execution of legislation by both the federation and the Länder and that there were no special reasons that could exceptionally allow for joint functions (Gemeinschaftsaufgaben) in this field.156 In particular, by demanding the creation of independent organisational units, whose tasks were not limited to coordination or providing information, but included the actual management of the social benefits in question, the impugned provision infringed various constitutional principles of federalism.157 These were, first, the distribution of functions laid down in the Basic Law, which incorporates a presumption in favour of the Länder in the field of administration; second, the principle of own responsibility for the execution of legislation, which obliges the competent administrative organs to perform their tasks using their own facilities, personnel, funding and organisation; and third, the principle of clarity of responsibility (Verantwortungsklarheit), demanding that it is clear which level is accountable for what state actions and, concomitantly, whether federal or Land law is applicable to matters such as enforcement or data protection. The Bundesverfassungsgericht decided to defer the date on which annulment would take effect and instructed the legislature to achieve a constitutional state of affairs by 31 December 2010.158 The federal government thereupon proposed to amend the Basic Law to create an explicit constitutional basis allowing for cooperation between the two echelons of government in the social security field and effectively overturn the ruling of the Bundesverfassungsgericht.159 Six months before the deadline for legislative action, a new Article 91e was accordingly inserted into the Basic Law,160 the first paragraph of which reads as follows: In the execution of federal laws in the field of basic support for persons seeking employment the Federation and the Länder or the municipalities and associations of municipalities responsible pursuant to Land law shall generally cooperate in joint institutions.

154 Another decision of the Bundesverfassungsgericht that brought about a constitutional amendment involved the German court accepting a right for Muslim butchers to slaughter animals in accordance with Islamic rites (BVerfG, 1 BvR 1783/99 (2002)) and in the aftermath of this judgment, a general animal protection clause was inserted into the Basic Law (Art 20a). For more detail, see C Langenfeld, ‘Germany’ (2003) 1 International Journal of Constitutional Law 141. 155 German Basic Law, Art 93(4); Law on the Bundesverfassungsgericht, Arts 71–72. 156 BVerfG, 2 BvR 2433/04 (2007). 157 For a discussion in English of the core features of German federalism, see Kommers and Miller, The Constitutional Jurisprudence of the Federal Republic of Germany (n 39) ch 3. 158 The technique of deferring the date on which unconstitutional legislation loses its binding force is discussed in more detail in ch 6, section V-B(ii). 159 Gesetzentwurf der Bundesregierung – Entwurf eines Gesetzes zur Änderung des Grundgesetzes (Art 91e). 160 Bundesgesetzblatt Jahrgang 2010, Teil 1 No 38 of 26 July 2010.

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This amendment has thus made it possible to continue the operation of the labour consortia that the Bundesverfassungsgericht had originally declared to be unconstitutional. iv. Hungary The Hungarian constitution that was in force until 1 January 2012 was amended on two occasions to respond to decisions handed down by the Hungarian constitutional court.161 The first override occurred shortly after the Alkotmánybíróság commenced its work. In Decision 3/1990, the judges had declared part of the electoral law unconstitutional for failing to give Hungarian citizens who were abroad on general election day the right to participate in the vote.162 While the constitutional court accepted that those who did not permanently or temporarily reside on Hungarian territory could be excluded from going to the ballot box, it was not justified to apply a similar restriction to citizens habitually resident in Hungary, who just happened to be out of the country on election day: a tempor ary stay abroad could not be an obstacle to the exercise of a fundamental civil right, particularly in view of modern communication techniques and means of transport. The Alkotmánybíróság referred the law back to Parliament, exhorting it to enact a legal framework setting out how Hungarian citizens abroad could cast their vote in general elections. Parliament, however, was reluctant to change the offensive legislation in the lead-up to the 1994 elections and instead derogated from the court’s judgment by incorporating the requirement of residence on Hungarian territory on election day into the constitution.163 The second constitutional override happened in November 2010, in response to a judgment of the constitutional court striking down a statute that imposed a 98 per cent special income tax on severance payments in the public sector, which was intended to apply with retroactive effect.164 Although a constitutional amendment adopted earlier that year author ised the legislature to adopt retroactive tax legislation in respect of income received from the State in breach of good morals, the Alkotmánybíróság held that the contested law was overbroad as the 98 per cent tax rate would also be applicable to income derived from State resources to which employees were subjectively entitled under labour law regulations. The constitutional judges further objected to the fact that the taxation envisaged was confiscatory in nature, since it could result in the withdrawal of the full amount of remuneration received. The new Fidesz-dominated coalition had proposed the special tax sever161 A further attempt to amend the constitution in order to qualify the court’s constitutional case law on freedom of expression and the regulation of hate speech failed in 2009 due to lack of sufficient parliamentary support. For more detail on the background to this amendment, including a discussion of the relevant judgments handed down by the Alkotmánybíróság in this regard, see J Dombi, ‘Constructive Discussion or Empty Talk?’ in M de Visser and W Witteveen (eds), The Jurisprudence of Aharon Barak: Views from Europe (Nijmegen, Wolf Legal Publishers, 2011). 162 Decision 3/1990 of 27 February 1990. 163 Hungarian constitution, Art 70(1) inserted on 7 October 1994 and stating that ‘All adult Hungarian citizens residing in the territory of the Republic of Hungary have the right to be elected and the right to vote in Parliamentary elections . . . provided that they are present in the country on the day of the election’ (emphasis added). Halmai comments that this addition to Art 70 was challenged before the constitutional court by several Hungarian diplomats residing abroad, but the court denied jurisdiction to examine the constitutionality of the amendment: see ‘The Hungarian Approach to Constitutional Review: The End of Activism? The First Decade of the Hungarian Constitutional Court’ in W Sadurski (ed), Constitutional Justice, East and West (The Hague, Kluwer Law International, 2002) 201. The Hungarian Fundamental Law now specifies that it is possible to subject the right to vote to residence in Hungary (Art XXIII(4)), but the 2011 Elections Act has not done so and grants the right to vote in general elections to Hungarian citizens residing abroad, whereby it should also be remarked that the conditions for acquiring Hungarian citizenship have been considerably relaxed in the 2011 Citizenship Law. 164 Decision 184/2010 of 28 October 2010.

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ance law to cope with a mounting budget deficit165 and did not take kindly to the court thwarting its efforts in this respect.166 As a consequence, it managed to secure the adoption of a constitutional revision curbing the court’s jurisdiction to adjudicate state budget and taxation matters.167 Pursuant to the modified text of the constitutional provision setting out the Alkotmánybíróság’s mandate, challengers would henceforth only be able to attack budgetary or taxation legislation with reference to explicitly mentioned and restrictive grounds, namely by asserting a breach of the rights to life and human dignity, the right to the protection of personal data, the right to freedom of thought, freedom of conscience and freedom of religion or rights connected to Hungarian citizenship.168 In addition, any decision of the Alkotmánybíróság declaring that budgetary or tax rules should be quashed because they do not pass muster could only be based on an infringement of the specifically enumerated rights just mentioned.169 As mentioned in earlier chapters, Hungary’s new Fundamental Law has retained this limitation, which will apply ‘as long as the level of state debt exceeds half of the Gross Domestic Product’, which will be the case for the foreseeable future.170 It should be noted that the Fundamental Law itself has also been revised several times since its entry into force on 1 January 2012, and the Fourth Amendment warrants particular attention here as amongst other things it overturns important judgments handed down by the Alkotmánybíróság. In its Decision 45/2012, the Hungarian constitutional court had found that several Transitional Provisions of the Fundamental Law were unconstitutional, at the initiative of the Commissioner for Fundamental Rights.171 These Transitional Provisions were promulgated on 31 December 2011, had entered into force the next day and were stated to form part of the Fundamental Law, although they were not actually incorporated into this document.172 In terms of substance, they contained not only provisions dealing with transitional matters, but also clauses that further developed or qualified substantive Articles of the Fundamental Law.173 This, the Alkotmánybíróság held, was not permissible. It found that Parliament had overstepped the limits of the authorisation given 165 In particular, Hungary was faced with having to repay loans to the IMF and ensuring compliance with European rules regarding budget deficits. 166 See eg ‘Fidesz Picks Another Fight’, The Economist, 28 October 2010. 167 The amendment was adopted on 16 November 2010, with 261 MPs voting in favour and 103 against. That same month, a further constitutional amendment was passed dealing with taxation matters, stating that the legislature could introduce tax liability for any remuneration received from the State with retroactive effect to the beginning of the fifth tax year preceding the given tax year, provided that the total amount of taxation would be less than the amount of remuneration received. A virtually identical severance tax law was subsequently adopted by Parliament on 30 December 2010. This law was also struck down by the constitutional court in Decision 37/2011 of 10 May 2011, with the judges holding that the intended retroactive application of the law to past completed fiscal years of 2005–09 infringed the principle of human dignity, by seeking to tax income in respect of which tax had already been lawfully paid. The constitutional court did acknowledge that the legislature could apply a special tax rate to income generated during a taxable period for which taxpayers had not yet had to file their tax returns. Parliament thereupon adopted a revised severance tax law according to which the 98% tax rate would apply to the fiscal year of 2010, but not to earlier tax years. For a discussion of Decision 37/2011 from a taxation perspective, see D Deák, ‘Pioneering Decision of the Constitutional Court of Hungary to Invoke the Protection of Human Dignity in Tax Matters’ (2011) 39 Intertax 534. 168 Hungarian constitution, Art 32/A(2). 169 ibid, Art 32/A(3). 170 Hungarian Fundamental Law, Art 37(4). See now also the Fourth Amendment to the Hungarian Fundamental Law, adopted by Parliament on 12 March 2013. 171 Decision 45/2012 of 29 December 2012. 172 Hungarian Fundamental Law, Closing Provisions point 5, inserted pursuant to the first amendment to the Fundamental Law adopted on 18 July 2012. 173 Also included was a lengthy statement expressing strong disapproval of the ‘Communist Dictatorship’ experienced by Hungary and several provisions addressing how the country should go about dealing with the injuries caused and crimes committed by the Communist regime.

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to it by the Fundamental Law to enact transitional provisions by adopting rules whose subject matter was not connected to the entry into force of the Fundamental Law (or that could otherwise be considered to be transitional in nature) and whose temporal validity appeared to be unlimited: [B]y stating in item 3 of the Closing Provisions that it empowers the Parliament to adopt separ ately the transitional provisions, [the Fundamental Law] delimited the subjective scope and the temporal force of such provisions. The subject of the separate provisions can only be a transitional provision connected to the Fundamental Law and its taking into force [sic], and in time it can only refer to the transition from the Constitution to the Fundamental Law or to a period of time closely connected to it. . . . Those provisions of [the Transitional Provisions] that do not comply with the restriction contained in Article 3 of the Closing Provisions of the Fundamental Law (i.e. they are not transitional ones, either from the aspect of their subject or from a temporal point of view) are contrary to this provision of the Fundamental Law, extending beyond the limits of the authorisation contained therein. According to the guiding practice of the Constitutional Court, such provisions are invalid under public law.174

For genuine additions to, or modifications of, the Fundamental Law to be valid, these should be adopted using the constitutionally prescribed revision procedure and become an integral part thereof.175 The Alkotmánybíróság also asserted that having non-transitional provisions in a separate document that enjoyed the same protection as the Fundamental Law undermined the latter’s self-proclaimed character as the single and unified foundation of the Hungarian legal order.176 Relatedly, this separate document was not immutable as Parliament could make further additions or changes to it in the future (and had in fact already done so177), which generated unacceptable legal uncertainty as to the scope and content of the country’s most fundamental rules and principles, and this, in turn, was considered to amount to a violation of the principle of the rule of law.178 In Decision 45/2012 as well as in other judgments,179 the Hungarian court relied on the body of constitutional case law that had come into being since it first commenced its operations in 1990. It had rationalised this particular practice in an earlier decision (22/2012) as follows: The Constitutional Court can apply in the new cases the arguments connected to the question of constitutional law judged in the past and contained in its decisions adopted before the Fundamental Law was put [sic] into force, provided that it is possible on the basis of the concrete provisions – having the same or similar content as that of the previous Constitution – and of the Decision 45/2012 of 29 December 2012, at IV, para 3. As neither of these requirements had been observed in the case of the transitional provisions, the Hungarian court found that these provisions could not be regarded as a modification or amendment of the Fundamental Law: see Decision 45/2012, notably III, para 3.4. 176 The importance attributed by the constituent power to the idea of the unity of the Fundamental Law is for instance expressed in the postamble, which speaks of the ‘first unified Fundamental Law of Hungary’. 177 Namely with the so-called second amendment to the Fundamental Law that in fact did not modify that document, but inserted new provisions that made the exercise of the right to vote dependent on prior registration in an electoral register into the transitional provisions. This requirement of advance electoral registration was declared unconstitutional by the Hungarian court in Decision 1/2013 of 7 January 2013. 178 Decision 45/2012 of 29 December 2012, at IV, para 4. The Hungarian court was also concerned about the ramifications of there being non-transitional provisions not incorporated into the text of the Fundamental Law, but sharing the latter’s level of protection in relation to its own competences: it clarified that as the principal constitutional guardian, it must protect the Fundamental Law against encroachments and this would become progressively more difficult as a result of the constantly changing and expanding substantive scope of the transitional provisions, since the constitutional court was not able to review the constitutionality of provisions that enjoy the same protection as the Fundamental Law. 179 Consider for instance Decision 1/2013 of 7 January 2013, at III, para 4. 174 175

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rules of interpretation of the Fundamental Law. . . . The Constitutional Court’s statements made on the fundamental values, human rights and freedoms and on the constitutional institutions that have not been changed fundamentally by the Fundamental Law remain valid. . . . [T]he provisions of the previous Constitution and of the Fundamental Law have to be compared and carefully weighed. If the comparison results in establishing that the constitutional regulation has not been changed or it is essentially similar to the previous one, then the constitutional interpretation can be transposed. On the other hand, when the content of the provisions of the previous Constitution and of the Fundamental Law are the same, the [sic] reasoning is required for not taking into account the legal principles presented in the former decisions of the Constitutional Court, and not in the case of applying them.180

On 12 March 2013, the Hungarian Parliament agreed to a constitutional revision in the form of the Fourth Amendment to the Fundamental Law that overturns or detracts from the judgments just mentioned.181 This amendment revives most of the previously invalidated provisions and now inserts these into the Fundamental Law itself. It also explicitly forbids the Alkotmánybíróság from continuing its practice of relying on decisions delivered under the old constitution in establishing the meaning of comparable provisions and principles laid down in the Fundamental Law by declaring that ‘Decisions and their reasoning of the Constitutional Court prior to the coming into force of the Fundamental Law cannot be used for interpreting the Fundamental Law’.182 Finally, the amendment further circumscribes the Hungarian court’s jurisdiction, by expanding the temporal scope of the limitation regarding the grounds for testing the validity of budgetary and tax legislation.183 The amendment has been strongly criticised by the Council of Europe, the European Union, individual Member States and constitutional scholars.184 It remains to be seen whether the Hungarian constitutional court can recover from this latest blow and whether it will issue decisions replicating earlier judgments that have now been deprived of their interpretational value, or, conversely, whether the highwater mark of constitutional justice in Hungary is over. v. European Union Finally, at the EU level the Member States – in their capacity as Herren der Verträge – have also decided to change the European Treaties to respond to a judgment of the Court of Justice.185 Decision 22/2012, para 41. In addition, the Fourth Amendment overturns constitutional decisions that struck down legislation requiring Hungarian citizens who have benefited from subsidised tuition fees at higher education establishments to work in Hungary for several years after completing their degree and legislation that criminalised homelessness (Decision 32/2012 of 4 July 2012 and Decision 38/2012 of 14 November 2012 respectively). 182 Fourth Amendment to the Fundamental Law of Hungary, Art 19. 183 This limitation now also applies when the Hungarian court is asked to review the constitutionality of legislation at a point in time when the level of State debt no longer exceeds half of the GDP, but when the law in question had been published in the period during which the State debt did exceed that threshold. 184 See eg Statement from the President of the European Commission and the Secretary General of the Council of Europe, ‘Vote by the Hungarian Parliament on the Fourth Amendment to the Hungarian Fundamental Law’, press release DC 013(2013) (www.coe.int); N Nielsen, ‘Hungary Law Reform Sparks Protest, Criticism’ Euobserver (11 March 2013); KL Scheppele, ‘Constitutional Revenge’ (Verfassungsblog, 4 March 2013). 185 In addition to the example discussed in the main text, another case concerned the possibility for the Member States to practise affirmative action. In Case C-450/93 Eckhard Kalanke v Freie Hansestadt Bremen [1995] ECR I-3051, the Court held that the possibility for positive action ‘to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women’s opportunities’ under Art 2(4) of the old Equal Treatment Directive 76/207 should be interpreted narrowly since it amounted to a derogation of the general right to equal treatment. Although the Court softened its position somewhat in its later judgment in Case C-409/95 Helmut Marschall v Land Nordrhein Westfalen [1997] ECR I-6363, the Member States still decided to 180 181

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In Barber v Guardian Royal Exchange Assurance Group,186 the European Court ruled that pensions paid by contracted-out occupational pensions schemes constituted ‘pay’ within the meaning of Article 157 TFEU and that the principle of equality between men and women should accordingly be respected in determining the conditions for paying out such pensions. Most Member States had, however, assumed that Article 157 TFEU (then Article 119 EEC Treaty) would not cover these pension schemes. What is more, these schemes in actual fact frequently derogated from the equality principle, in particular by providing for different pensionable ages of men and women. This could have left Member States in a spot of financial bother, given that the rulings of the Court of Justice ordinarily have retroactive effect.187 In Barber, the Court was asked, and agreed, to limit the temporal applicability of its interpretation of Article 157 TFEU as follows: [43] [T]he Member States and the parties concerned were reasonably entitled to consider that Article [157] did not apply to pensions paid under contracted-out schemes and that derogations from the principle of equality between men and women were still permitted in that sphere. [44] In those circumstances, overriding considerations of legal certainty preclude legal situations which have exhausted all their effects in the past from being called in question where that might upset retroactively the financial balance of many contracted-out pension schemes. It is appropriate, however, to provide for an exception in favour of individuals who have taken action in good time in order to safeguard their rights. Finally, it must be pointed out that no restriction on the effects of the aforesaid interpretation can be permitted as regards the acquisition of entitlement to a pension as from the date of this judgment. [45] It must therefore be held that the direct effect of Article [157] of the Treaty may not be relied upon in order to claim entitlement to a pension with effect from a date prior to that of this judgment, except in the case of workers or those claiming under them who have before that date initiated legal proceedings or raised an equivalent claim under the applicable national law.

Although the Court was motivated by considerations of legal certainty in restricting the temporal effect of its reading of Article 157, the way in which it had crafted this limitation was considered to be somewhat ambiguous. Should the principle of equal treatment apply to all pension payments effected after 17 May 1990 (the date of the Barber ruling) – meaning that it would cover pension entitlements accrued during periods of service completed prior to the Court’s judgment – or should equality only be ensured as regards contributions to pensions schemes for periods of employment subsequent to 17 May 1990? Unsurprisingly, litigation on this particular issue ensued before national courts, which resulted in four preliminary references being made to the Court of Justice inquiring about the precise scope of the temporal limits imposed in Barber. Before the Court could provide clarification, the Member States intervened by annexing a Protocol to the Maastricht Treaty, in which they asserted their view on how the limitation of the retroactive effect of the application of the principle of equality to contracted-out pension schemes should be understood. To avoid potentially calamitous financial consequences, the second and most restrictive interpretation set out earlier was enshrined in the Protocol: amend the relevant treaty provision (then Art 141 EC, today Art 157 TFEU) by adding another paragraph which states that the principle of equal treatment does not prevent Member States from adopting affirmative action measures ‘with a view to ensuring full equality in practice between men and women in working life’. 186 Case C-262/88 Douglas Harvey Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889; D Curtin, ‘Scalping the Community Legislator: Occupational Pensions and “Barber” ’ (1990) 27 CML Rev 475. 187 See also ch 6, section V-C.

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For the purposes of Article [157] of this Treaty, benefits under occupational social security schemes shall not be considered as remuneration if and in so far as they are attributable to periods of employment prior to 17 May 1990, except in the case of workers or those claiming under them who have before that date initiated legal proceedings or introduced an equivalent claim under the applicable national law.188

As an integral part of the European Treaties, this Protocol has the same legal force as a treaty provision189 and would thus prevail over any conflicting interpretation of Article 157 TFEU by the Court of Justice. It has been observed that [B]y the unprecedented technique of a Protocol purporting to “interpret” the meaning of an existing EC Treaty Article, the Member States try to present the matter to the Court of Justice in terms of a fait accompli. . . . The Protocol was included quite irrespective of what the Court itself actually meant in its judgment and is considered by some as a “warning” to the Court.190

When the Court later answered the preliminary questions already pending when the Protocol was adopted, it heeded the Member States’ warning (or wishes) and read the salient paragraphs of its Barber judgment in accordance with the substance of the Protocol, without, however, any explicit mention thereof.191 vi. General Observations When looking at the constitutional practice in the various European countries under study that have established separate constitutional courts, there is at first blush a clear divide: in four of these – namely France, Italy, Germany and Hungary – the political institutions have had recourse to constitutional revision to overturn or derogate from judicial rulings, whereas no such thing has happened in the other States. This difference is however more apparent than real. In those jurisdictions where constitutional overrides have taken place, they have been a decidedly rare occurrence when compared to the volume of decisions handed down by the courts (although this could now be changing in Hungary). As a complement to the case studies featured in the preceding pages, it is therefore useful to reflect 188 Protocol (no 17) concerning Article 141 of the Treaty establishing the European Community (now Art 157 TFEU); see eg T Hervey, ‘Legal Issues concerning the Barber Protocol’ in D O’Keeffe and P Twomey (eds), Legal Issues of the Maastricht Treaty (London, Wiley Chancery Law, 1994). 189 See Art 51 TEU. 190 D Curtin, ‘The Constitutional Structure of the Union: A Europe of Bits and Pieces’ (1993) 30 CML Rev 17, 51. See also S Prechal, ‘Bommen ruimen in Maastricht: wijziging van art 119 EEG’ [1992] Nederlands Juristenblad 349, 52, who writes that the Protocol ‘in any event deviates from that which the Court (however unclearly) intended with its limitation in Barber’ (my translation). Contrast this with the Opinion of AG Van Gerven in Case C-109/91 Gerardus Cornelius Ten Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers- en Schoonmaakbedrijf [1993] ECR I-4894 at para 23: ‘I would, however, emphasize that the Protocol is not intended to amend Article [157] nor does it appear to call in question the decisions of the Court . . . I see in the Protocol no more than a declaratory determination of meaning adopted in relation to Article [157] and the case-law of the Court’ (emphasis in original). 191 Ten Oever (n 190); Case C-110/91 Michael Moroni v Collo GmbH [1993] ECR I-6591; Case C-152/91 David Neath v Hugh Steeper Ltd [1993] ECR I-6935; Case C-200/91 Coloroll Pension Trustees Ltd v James Richard Russell [1994] ECR I-4389. It should be noted that the first of these rulings was delivered just before the entry into force of the Maastricht Treaty, and hence before the Protocol acquired legal force. In the later judgment in Case C-57/93 Anna Adriaantje Vroege v NCIV Instituut voor Volkshuisvesting BV en Stichting Pensioenfonds NCIV [1994] ECR I-4541, para 41, the Court sought to present the Protocol as conforming to its ruling in Ten Oever rather than the other way around (‘There have been divergent interpretations of the Barber judgment which . . . were removed by the judgment in Ten Oever, which was delivered before the entry into force of the Treaty on European Union. . . . Protocol No [17] essentially adopted the same interpretation of the Barber judgment as did the Ten Oever judgment’).

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on the various factors that influence the ability of political actors to respond to constitutional courts’ decisions by changing the constitution. To start with, much depends on the degree of entrenchment of this canonical document against subsequent modification. Simply put, the more a constitution is insulated from change and the more arduous the amendment requirements are, the less feasible – and hence realistic – it is for the political branches to override judgments of the constitutional court. A typical element that distinguishes the procedure for constitutional amendment from that for the adoption or change of ordinary legislation is the prescription of a supermajority in Parliament.192 Several constitutions stipulate additional requirements for their revision. For instance, in Belgium and the Netherlands, parliamentary consent in two consecutive legislative periods is necessary,193 as a result of which the amendment rules in these countries have been described as ‘among the most rigid in the contemporary legal world’.194 The Spanish and Austrian constitutions, for another, contemplate different gradations of change – from ordinary amendments to a total revision of the constitution – with associated differences in how onerous the revision procedure is.195 In Ireland, every proposal to change the constitution must be submitted by referendum to a decision of the people,196 who have vetoed two amendment bills submitted in response to the ruling of the Supreme Court in Attorney-General v X, holding that a woman has a right to an abortion if there is a ‘real and substantial risk’ to her life, including the risk of suicide, notwithstanding the protection that the constitution prescribes for the life of the unborn.197 In France, conversely, amending the constitution is relatively easy: a three-fifths majority of votes in both houses sitting together is sufficient; indeed, since its adoption in 1958, the French constitution has been modified almost 20 times.198 Little surprise, then, that we can find several examples of successful constitutional overrides in France. In this context, it is also interesting to consider the European Union, where modifications of the founding treaties to respond to judgments of the Court of Justice have also been a decidedly uncommon occurrence. From a strictly legal perspective, treaty revision appears to be an especially prohibitive process, requiring the convening of an intergovernmental conference to debate the content of the changes, which must be agreed unanimously by all Member States of the Union and subsequently ratified by them in accordance with their

192 The United Kingdom is an exception in this respect, as it does not have a single written and entrenched document bearing the title of ‘constitution’. Acts of parliament that contain fundamental or ‘constitutional’ provisions such as the Human Rights Act 1998 or the Scotland Act 1998 are unentrenched and can be altered by other acts of parliament adopted by means of ordinary legislative procedures, with there being no requirement for special majorities in the two Houses of Parliament for instance. On the process of constitutional change in the UK, including through acts of parliament, see D Oliver, ‘The United Kingdom’ in Oliver and Fusaro (ed), How Constitutions Change (n 127). 193 Belgian constitution, Art 195; Dutch constitution, Art 137. In 2012, Art 195 of the Belgian constitution was itself amended and a transitional provision inserted waiving the requirement to dissolve Parliament (only) as regards the implementation of the so-called sixth stage of the State reform. A more general discussion of amendment procedures in Belgium and the Netherlands can be found in X Contiades (ed), Engineering Constitutional Change: A Comparative Perspective on Europe, Canada and the USA (London, Routledge, 2012). 194 Venice Commission, Opinion 679/2012 on the Revision of the Constitution of Belgium (CDL-AD(2010)010, Venice, 15–16 June 2012) 6. 195 Spanish constitution, Arts 167 and 168; Austrian constitution, Art 44. 196 Irish constitution, Art 46. 197 Attorney-General v X [1992] IESC 1, [1992] 1 IR 1 (5 March 1992). The amendments in question were amendment 12 of 25 November 1992 and amendment 25 of 6 March 2002. 198 French constitution, Art 89.

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respective constitutional requirements.199 At the same time, it should be realised that the European Treaties have in actual fact frequently been amended, with one commentator speaking of a ‘semi-permanent treaty revision process’.200 Against this background, the dearth of constitutional overrides at Union level may be explained not so much by the procedural obstacles, but rather by the inability to reach the comprehensive political agreement necessary to proceed to qualify or overturn specific judgments. Rulings of the Court of Justice do not tend to affect the concerns or interests of all the Member States in equal measure or in the same way, thereby presumably detracting from the willingness of those for whom the impact is positive, negligible or lacking altogether to contemplate a modification of the treaties in response. In addition, we may expect tough political wrangling as regards the precise way in which the impugned judgment should be overturned or qualified. The steady increase in the number of Member States thus seems to render recourse to the mechanism of a constitutional override virtually otiose in the EU context. Entrenchment can also be more substantive in nature, when constitutions explicitly declare that certain provisions are unamendable and beyond the reach of the constitutional legislature. Thus, the French and Italian constitutions protect the republican form of government from amendment201 and the German Basic Law absolutely entrenches the principle of human dignity and the federal and democratic character of the state.202 The Portuguese constitution also enumerates various substantive limits to constitutional revision, including respect for the unity of the state, the separation between church and state, citizens’ rights and judicial independence.203 When a constitutional court bases its decisions on (an interpretation of) such immutable provisions, there is no real threat of being censured by the political institutions.204 As Goldstein observes, somewhat tartly: ‘To the extent that not even the constituent power of the people can alter certain parts of the constitution or principles that judges claim to find therein, judges rule the land.’205 Questions of entrenchment aside, another relevant aspect is whether the constitutional court can review amendments for their constitutionality.206 If this is indeed the case, the 199 Art 48 TEU, paras 2–5, which regulate the ordinary revision procedure (which, in addition to the features mentioned in the main stage, will normally also include the setting up of a Convention composed of representatives of the national parliaments, of the heads of state or government, of the European Parliament and of the Commission, whose task is to adopt a recommendation on the proposed amendments). Paragraphs 6 and 7 provide for two simplified revision procedures. 200 B De Witte, ‘The Closest Thing to a Constitutional Conversation in Europe: The Semi-Permanent Treaty Revision Process’ in P Beaumont, C Lyons and N Walker (eds), Convergence & Divergence in European Public Law (Oxford, Hart Publishing, 2002). 201 French constitution, Art 89 last paragraph; Italian constitution, Art 139. Besides this explicit constraint on the scope for constitutional revision, the Italian Corte costituzionale recognised a further limit to the content of amendments in ‘those principles which albeit not listed among those which cannot be revised, do still pertain to the very essence of the supreme values on which the Constitution is based’: sentenza 1146/1988 of 15 December 1988. The precise content of these ‘supreme principles of the constitution’ (principi supremi della costituzione) continues to be debated in Italian scholarship. 202 German Basic Law, Art 79(3), the so-called eternity clause (Ewigkeitsklausel or Ewigkeitsgarantie). 203 Portuguese constitution, Art 288. 204 An interesting question is whether such immutable or unamendable provisions can also be considered to be addressed to the constitutional court itself and, if so, whether this fact (should) impact(s) on the interpretative freedom of that court to establish the meaning of such provisions or alter their interpretation over time. For instance, the German Bundesverfassungsgericht has explained that it will adopt a flexible approach to the immutable right to human dignity: ‘any decision defining human dignity in concrete terms must be based on our present understanding of it, and not on any claim to a conception of timeless validity’: BVerfG 45, 187 (1977) Life Imprisonment. 205 L Goldstein, ‘From Democracy to Juristocracy?’ (2004) 38 Law & Society Review 611, 621. 206 Generally on this question, see eg K Gözler, Judicial Review of Constitutional Amendments: A Comparative Study (Bursa, Ekin Press, 2008) and the contributions in (2010) 27 Cahiers du Conseil constitutionnel.

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upshot may be that the ability of the political branches to act as a democratic counterweight to the court’s interpretation of constitutional rights and principles may in effect be elimin ated, because the latter would be able to simply disallow a constitutional amendment seeking to overturn one of its judgments. We have seen how the French Conseil constitutionnel was petitioned by several MPs to pronounce on the validity of a constitutional revision that was prompted by one of its decisions and declined this invitation, arguing that it lacked the competence to do so. Conversely, its colleagues in Germany, the Czech Republic and Italy have claimed the power to review constitutional amendments in the light of certain fundamental and inviolable constitutional principles.207 To date, the German Bundesverfassungsgericht and the Italian Corte costituzionale have never found that constitutional revisions did not pass muster and hence could not be accepted. We saw in chapter five that the Czech Ústavní Soud has on one occasion struck down a constitutional act (a type of legal norm that is of equal rank to the constitution). The pertinent act sought to enable the swift dissolution of Parliament to cope with a political crisis and was said to be a constitutional act ‘only in form, but not in substance’ as it catered for one particular event, thereby breaching the principle of the generality of law that was considered to be one of the characteristics of a law-based State.208 The Hungarian constitutional court originally held that it had no competence to decide on the validity of constitutional amendments,209 but subsequently recognised that it was able to verify whether the constitution itself or modifications thereof suffered ‘from invalidity under public law, which make[s] [them] null and void’.210 Under the Fourth Amendment to the Hungarian Fundamental Law, the Alkotmánybíróság is expressly empowered to examine this foundational document and amendments thereto, but only for compliance with the relevant constitutional procedural rules pertaining to their adoption.211 Finally, the decision of the political institutions to have recourse to a constitutional revision to respond to judgments handed down by the constitutional court should also be appraised with reference to non-legal factors. Doing so too often can damage the authority of the constitutional court as principal guardian of the constitution and may also detract from 207 The respective constitutions are silent on this issue, and the constitutional courts have asserted this competence in their case law. As regards the Bundesverfassungsgericht, see BVerfG 30, 1 (1970) Klass Case; BVerfG 84, 90 (1991) Expropriation I; BVerfG 94, 12 (1990) Expropriation II; BVerfG, 2 BvR 1938/93 and 2 BvR 2315/93 (1996) Asylum Cases; BVerfG, 1 BvR 2378/98 (2004) Acoustic Surveillance of Homes (involving the Bundesverfassungsgericht engaging in constitution-conform interpretation of a constitutional amendment). For the Czech constitutional court, see Judgment Pl ÚS 27/09, Constitutional Act on Shortening the Term of Office of the Chamber of Deputies. For the Corte costituzionale, see sentenza 1146/1988 of 15 December 1988 and sentenza 2/2004 of 18 December 2003. The Romanian constitutional court is explicitly empowered to scrutinise ex officio the constitutional validity of amendments (Art 146(a) of the Romanian constitution) and has clarified in its case law that it can only review constitutional revisions prior to their approval by Parliament: Decision no 148 of 16 April 2003. 208 Judgment Pl ÚS 27/09 of 10 September 2009, Constitutional Act on Shortening the Term of Office of the Chamber of Deputies. For more detail, see ch 5, section III. 209 Decision 293/B/1994; Decision 23/1994 of 29 April 1994. 210 Decision 61/2011 of 13 June 2011. 211 Hungarian Fundamental Law, new Art 24(5). Petitions requesting such review may be filed by the president in relation to constitutional amendments that have been adopted by Parliament but not yet published, or by the government, a quarter of MPs, the president of the Curia, the prosecutor general or the Commissioner for Fundamental Rights within 30 days of their official publication. The Austrian constitutional court is also only able to review the procedural regularity of constitutional amendments, ie determine whether the correct amendment procedure has been followed (VfGH no 2455 of 12 December 1952), and in 1988 and 2001 held that a proposed reform was unconstitutional for want of using the correct revision procedure: VfGH V29/88, 102/88 of 23 June 1988 and VfGH G12/00 of 10 March 2001 respectively.

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the distinctive character and features – such as rigidity and entrenchment – traditionally ascribed to constitutional rules and principles. Moreover, as Sadurski pertinently reminds us: choosing a constitutional path for overriding a court’s decision is a risky and costly affair, and the subject-matter of a specific court decision (even if the decision is resented by the parliamentary majority) may not lend itself to a constitutional treatment; this is why the examples of amendments introduced specifically to override constitutional court decisions are very few and far between.212

D. Legislative Inertia following a Constitutional Decision So far, we have considered various ways in which the legislature can respond to judicial rulings that it re-sent with a view to seeking a modification or reversal of the judges’ interpretation of the relevant constitutional provisions or principles. Yet, there are also instances where the legislature neither implements the court’s judgment lock, stock and barrel nor pursue avenues to obtain an adjustment thereof, but instead remains inactive. In other words, the interplay between legislature and court that has come about as a result of the initiation of constitutional adjudication – whereby (a certain proportion of) the former may have filed the challenge and in any event usually has the right to defend the contested legal rules – comes to an end after the judgment in the case has been delivered. A first reason that may explain the absence of legislative activity in the wake of constitutional decisions concerns the competences of the selected European constitutional courts. All of these courts today have the power to directly eliminate constitutionally defective norms from the legal system and are not dependent on the legislature’s assistance in this respect.213 As such, by (partially) invalidating a law, the court may already have been able to bring about a constitutional state of affairs, independent of any activity on the part of the political branches of government.214 In those situations, there is, constitutionally speaking, simply no need for the political institutions to act. Such an outcome may also be perfectly acceptable for the ruling governmental majority, for instance because the invalidated legislation was supported by political factions different from those currently in office or because the offensive statute was of considerable vintage and could no longer count on political or societal support.215 Alternatively, it may happen that regardless of the absence of a legal requirement to follow up on constitutional decisions, the governmental majority nevertheless wants to take Sadurski, Rights before Courts (n 52) 81. Belgium is an exception as far as preliminary rulings are concerned. As explained in ch 6, section V-B(i), findings of unconstitutionality in the context of the preliminary reference procedure do not remove the offending statute from the legal order and the legislature is accordingly under an obligation to draw the necessary consequences of such a ruling: see judgment no 8/97 of 19 February 1997. This may include making use of the new six-month time limit to bring an abstract constitutionality challenge against the contested norm, enabling the constitutional court to strike it down with general effects. 214 A potential problem may arise in those systems where the authority of constitutional court decisions is attendant upon their publication in the official gazette and the publication of this gazette is entrusted to a body under government control. In those situations, the political branches may avoid having to abide by disagreeable rulings by simply not publishing them and preventing them from taking effect. This in fact happened in Romania in the summer of 2012 with a ruling by the constitutional court on whether the president or the prime minister had the right to represent Romania at the European Council meeting scheduled for 28–29 June 2012. While the court handed down its decision on 27 June (judgment no 683), it was not published in the official gazette until 12 July 2012. 215 Alternatively, it is also conceivable that the legislature has adopted a law to accommodate certain factions or interests, expecting the court to strike the law down when it is submitted for review and, when this indeed happens, simply accept the ruling and blame the court for depriving it of the ability to act in a certain way (‘we tried, but they would not let us’). 212 213

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action for political reasons. This often involves securing the adoption of new legislation to replace the provisions that have been struck down because the governmental majority is intent upon pursuing a particular policy or achieving a certain objective, and in such cases we may see a ‘to-and-fro’ process unfold between the legislature and the court along the lines sketched in section A above. Secondly, legislative inactivity in the wake of a constitutional decision may be due to an inability on the part of the political institutions to garner the political support necessary to adopt new legal norms (or initiate the process for constitutional amendment). A particularly poignant example concerns Belgium and the complications involved in drawing electoral districts for elections to the House of Representatives. Under legislation adopted in 2002, the country was divided into 11 electoral districts, whose borders were drawn to match those of Belgium’s provinces,216 with the exception of the province of Flemish Brabant. While most of Flemish Brabant became the electoral district of Leuven, several Dutchspeaking municipalities, together with the bilingual Brussels region, constituted the country’s only bilingual electoral constituency, Brussels-Halle-Vilvoorde – in this regard preserving the situation under the pre-2002 legal framework.217 Crucially, the arrangements for voters and candidates in Brussels-Halle-Vilvoorde and Leuven differed in several respects from those applicable in the other nine electoral constituencies.218 Several abstract constitutionality challenges were brought by individuals, who argued that the special arrangements for Brussels-Halle-Vilvoorde and Leuven breached the non-discrimination principle and upset the constitutional balance struck as regards political representation.219 In its Decision 73/2003, the Belgian Cour constitutionnelle found that parts of the 2002 legislation relating to those two electoral districts indeed failed to pass constitutional muster.220 It is important 216 A brief note on Belgium’s organisational structure may be helpful. It is a federal State composed of communities and regions. There are three communities: Flemish, French and German-speaking. Belgium further has three regions: the Flemish region (comprising the Dutch-speaking linguistic region), the Walloon region (comprising the French-speaking and the German-speaking linguistic regions) and the Brussels region (made up of the bilingual region of Brussels-Capital). The Flemish and the Walloon regions in turn each comprise five provinces. See Belgian constitution, Arts 1–5. 217 Under the pre-2002 legal framework, Belgium was divided into 20 electoral districts, one of which was bilingual Brussels-Halle-Vilvoorde. The issue of the constitutionality of that arrangement came before the Cour constitutionnelle in 1994, which found that having such a district was not unconstitutional at the time (judgment no 90/94 of 22 December 1994). 218 Briefly, some of the main issues were as follows. A peculiarity of the Belgian electoral system is that those residing in the Walloon region – comprising the country’s French-speaking and German-speaking linguistic regions – may only vote or stand as candidates for francophone parties; and, similarly, the inhabitants of Flanders – encompassing the country’s Dutch-speaking linguistic region – may only vote or stand as candidates for Dutchspeaking parties. However, these limitations did not apply to those living in the Brussels-Halle-Vilvoorde district, which was allowed to have both French and Dutch candidate lists (something that had also already been possible under the pre-2002 legal framework). On a distinct but related note, the legislation in effect treated BrusselsHalle-Vilvoorde and Leuven as a single electoral constituency for the purposes of deciding on the number of seats in the House of Representatives that could be won and the allocation thereof among the Dutch parties that had fielded candidates in these two districts, with parties being able to submit a single candidate list for both districts – something that was not permissible in the other districts. It was further possible for French candidate lists submitted in Brussels-Halle-Vilvoorde and Leuven to be linked (primarily with a view to increasing the chance of being assigned residual seats in the House of Representatives), something that was denied to Dutch parties submitting candidate lists in those same electoral districts. 219 In Belgium, individuals with a special interest are able to petition the Cour constitutionnelle for abstract review of legislation as explained in ch 3, section III-A(i)(c). 220 Judgment no 73/2003 of 26 May 2003. In judgment no 30/2003 of 26 February 2003, the Belgian court decided to suspend those parts of the legislation framework pertaining to Brussels-Halle-Vilvoorde and Leuven. It held that in these areas, the pre-2002 legal framework would have to be applied during the federal elections scheduled to take place later that same year.

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to note that devising an electoral system that accommodates different linguistic interests and concerns is a highly sensitive issue in Belgium.221 This was also acknowledged by the Cour constitutionnelle: B.9.5. By maintaining the electoral district Brussels-Halle-Vilvoorde, the legislature treats candidates in the province of Flemish Brabant differently from candidates in the other provinces . . . B.9.6. The measure is admittedly based on the concern to find a necessary balance between the interests of the different communities and regions within the Belgian State. The details of that balance are not immutable. The court would however take the place of the legislature if it should decide that an immediate end should be put to a situation that hitherto had the approval of the legislature, while the court is not able to accommodate all the problems that the legislature must confront to maintain the peace between the different communities. B.9.7. In the event that it is decided to maintain provincial constituencies for elections to the House of Representatives, a new composition of the electoral districts in the former province of Brabant222 may be accompanied by special arrangements that may deviate from those applicable in other electoral districts, with a view to safeguard the legitimate interests of Dutch-speaking and French-speaking inhabitants of that former province. It is not for the court, but for the legislature to determine those modalities.223

For those reasons, it granted the federal legislature a period of four years to achieve a constitutional state of affairs – that is to say, by the time the next federal elections were scheduled to take place. Despite several attempts to come to a solution, the federal legislature in the end failed to do so within the deadline set by the Cour constitutionnelle. The BrusselsHalle-Vilvoorde question proved to be one of the most challenging political conundrums that Belgium has faced. It took two further federal elections224 and a coalition-building process that lasted about one-and-a-half years – which the government described as ‘the longest political crisis of its history’225 – before a political agreement was finally reached in late 2011 that proved acceptable to the various political parties. This agreement, which also deals with other issues pertaining to the progressive federalisation of Belgium,226 provides that for elections to the House of Representatives, the former electoral constituency of Brussels-Halle-Vilvoorde is split up into a Brussels-Capital and a Flemish-Brabant district.227 Although the political institutions thus in the end complied with the decision of 221 For more detail, with many references, see A Alen and K Muylle, Handboek van het Belgisch Staatsrecht (Mechelen, Wolters Kluwer, 2011) 247–53. 222 As a result of the Fourth State Reform, the province of Brabant was as of 1 January 1995 divided into the new provinces of Flemish-Brabant and Walloon-Brabant, and the Brussels-Capital Region. 223 Judgment no 73/2003 at B.9.6 and B.9.7. (my translation). 224 The first elections in 2007 were held days before the expiry of the court’s deadline, and the second elections in 2010 were in fact caused by the Brussels-Halle-Vilvoorde question: the Leterme II government fell after one of the coalition parties withdrew its support over the failure to reach agreement on this electoral constituency. It is noteworthy that the newly appointed Flemish president of the Cour constitutionnelle stated that after the expiry of the deadline it would be unconstitutional to have new elections for the House of Representatives in the absence of a legislative solution to the Brussels-Halle-Vilvoorde question: M Bossuyt, ‘Verkiezingen 2009 ongrondwettelijk zonder oplossing BHV’, De Morgen (13 November 2007). 225 Belgian government, Amendment to Article 195 of the Constitution of Belgium: Memorandum for the Attention of the Venice Commission (CDL-REF(2012)019, Strasbourg, 22 May 2012), 3. 226 The institutional arrangement is known as the Sixth State Reform and also further increased the autonomy of Belgium’s communities and regions. 227 The implementation of this agreement required a constitutional amendment. Interestingly, several members of a Belgian opposition party asked the Venice Commission to provide an opinion on whether the proposed amendment complied with the Belgian constitution and European standards of democracy and the rule of law. In its Opinion 679/2012 on the Revision of the Constitution of Belgium (CDL-AD(2010)010, Venice, 15–16 June 2012),

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the Cour constitutionnelle, it took them an additional four years to do so due to a lack of political will. Sometimes, the absence of a response by the political institutions to constitutional judgments may be relatively unproblematic, because the court has itself been able to purge the legal order of constitutionally defective rules, as mentioned earlier. Yet, there are also instances where achieving a fully constitutional state of affairs requires the political institutions to take measures. This is notably the case when the constitutional court has concluded that the unconstitutionality it has identified stems from a failure to accord (adequate) protection to constitutional rights and freedoms, with the judges being ill-equipped to provide relief for such an omission.228 Following a decision to that effect, the legislature is under a constitutional obligation to take remedial action. The failure to do so may be worrying on two distinct grounds. On the one hand, for affected individuals it means that their fundamental rights are not protected to the degree that is constitutionally required. On the other hand, if the political branches of government are seen to flout constitutional decisions that require legislative implementation, this may be damaging for the court’s authority and legitimacy – in particular if this happens in a systematic fashion. The selected European constitutional courts have indicated that the political institutions take the necessary measures to comply with their decisions striking down legal rules for want of constitutional propriety in the great majority of cases.229 In those instances where a response by the legislature is not forthcoming, there is usually little the court can do. Sometimes it may be possible to call upon the regular judiciary to fill the resultant legal vacuum, and provide them with instructions as to how they ought to go about this. This is what the Czech constitutional court ended up doing in the so-called ‘rent control saga’ discussed in chapter six.230 It is further interesting to note that the Bundesverfassungsgericht has the power to adopt concrete measures for the enforcement of its decisions should the legislature fail to heed its prescription to adopt new legal rules.231 On other occasions, constitutional judges cannot do more than wait for the political climate to change such that the legislature is able – albeit with a delay – to carry out its obligation to adopt new legal norms that meet the constitutional concerns and requirements identified by the court. Despite their often considerable powers and position as chief constitutional guardians in many jurisdictions, constitutional courts have ‘no influence over either the sword or the purse’232 and, as such, often remain at the mercy of the political branches to respect and give effect to their rulings.

the Venice Commission found that the proposed constitutional revision could not be said to violate either the Belgian constitution or international standards. 228 These are also often cases in which constitutional courts make use of deferred annulment and/or incorporate guidelines or set deadlines to be respected by the legislature – all techniques that assume, and even require, a legislative response or follow-up. 229 As detailed in the National Reports submitted by constitutional courts to the XVth Congress of the Conference of European Constitutional Courts (2011) on the topic of Constitutional Justice: Functions and Relationship with the Other Public Authorities, more particularly Part IIII question 4. 230 See in particular Judgment Pl ÚS 20/05 of 28 February 2006, Rent Control IV, and ch 6, section V-B. 231 Law on the Bundesverfassungsgericht, Art 35. See also BVerfG 6, 300 (1957) and the description of this provision and its use by the German federal constitutional court in Constitutional Justice: Functions and Relationship with the Other Public Authorities, National Report for the XVth Congress of the Conference of European Constitutional Courts (2011) 42–43 and 44–45. 232 This is the phrase used by A Hamilton in ‘The Federalist Papers No 78: The Judiciary Department’, The New York Packet (28 May 1788).

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III. INTERACTIONS BETWEEN CONSTITUTIONAL COURTS AND THE ORDINARY COURTS

As can be expected, much has been written about the relationship between the political institutions and constitutional courts, and especially about the legislature as one of the chief interlocutors for these courts. An equally important and as yet more marginally explored relationship is that between constitutional and ordinary courts. That is the focus of this present section. In the European countries that have separate constitutional courts, these bodies are located outside the regular court structure, instead of adding a further layer to this preexisting judicial system, thereby bifurcating the judiciary into ‘constitutional’ and ‘regular’ arms. Yet, in none of the States studied have the drafters of the relevant legal framework envisaged the complete segregation between constitutional and ordinary courts.233 They have devised links between the two jurisdictions: take, for example, the obligation for regular judges to refer questions concerning the validity of legal norms that they must apply in deciding specific controversies to the constitutional court for determination.234 We will see below that it is furthermore difficult, if not impossible, to neatly distinguish between constitutional questions, which are as a rule for the constitutional court to adjudicate in an authoritative fashion, and issues of statutory interpretation that in principle fall solely within the purview of the regular judiciary. In reality, then, there are several links or interfaces between constitutional and the other national courts.235 The upshot is that, as Garlicki astutely observes: the existence of a certain level of conflict or, to put it more mildly, certain tensions among the courts constitutes a necessary component of every system of constitutional judicial review. Once a distinct constitutional court coexists with one or more supreme courts, this cannot but produce problems in mutual relations. Hence, . . . the presence of tensions among the highest courts is systematic in nature.236

It is possible to identify a wide array of factors that may cause such tensions to flare or that, conversely, are conducive to a rather successful judicial cohabitation within the domestic legal system. This may include subjective aspects: take, for instance, the preoccupation of the respective judges with their professional stature and their concern to uphold or reinforce the status of the court of which they are a member – both of which may in turn be influenced by the personality and background of these judges. A related factor has to do with the composition of the constitutional court. We saw in chapter four that in Belgium, Germany, Italy and Spain, a certain proportion of the justices of the constitutional court are drawn from the (highest) ordinary courts or that the regular judiciary can co-opt constitutional 233 This is also more generally the case in non-European countries that have set up constitutional courts. For a discussion of the reasons why, see FI Michelman, ‘The Interplay of Constitutional and Ordinary Jurisdiction’ in T Ginsburg and R Dixon (eds), Comparative Constitutional Law, Research Handbooks in Comparative Law (Cheltenham, Edward Elgar, 2011). 234 This procedure exists in each of the countries studied in this book. For more detail, see ch 3, section III-A(ii). 235 See also the National Reports submitted by constitutional courts to the XIIth Congress of the Conference of European Constitutional Courts (2002) on the topic of The Relations between the Constitutional Courts and the Other National Courts, Including the Interference in this Area by of the Action of the European Courts. 236 L Garlicki, ‘Constitutional Courts versus Supreme Courts’ (2007) 5 International Journal of Constitutional Law 44, 63.

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judges.237 This may help to foster a good modus vivendi between the constitutional court and the other national courts. Ideology has been identified as another possible factor that can impact on the relationship between both sets of courts. A number of constitutional courts were created in the aftermath of their country’s transition to democracy as the principal guardians of new constitutions, which are generally infused with values and principles different from those prevailing under the previous text bearing that name. It has been said that the upshot of such a state of affairs is that: Their jurisprudence is thus likely to be more progressive than that generated by traditional supreme courts working under the old laws. In such countries, a constitutional court that did not provoke some level of tension vis-à-vis the ordinary judiciary would not be enforcing the Constitution to its fullest extent. Too smooth a relationship with the supreme court might mean that the aspirations expressed in the new Constitution were not being given concrete and operational meaning.238

In what follows, the focus will be on two issues that are particularly pertinent to the interplay between the constitutional court and the ordinary judiciary. The first of these concerns the technique of constitution-conform interpretation. While the chief aim of this technique is to regulate the relationship between the constitutional judiciary and the legislature, it will become clear that it may also affect the relations between the former and the other national courts (section A). Secondly, we will explore how the existence and functioning of the constitutional complaint mechanism that exists in several countries impacts on the relationship between the constitutional court and the ordinary judiciary, notably the supreme court(s) (section B). Finally, a caveat is in order: the examination here is firmly domestic in outlook; the impact of the European Union and especially the case law of the Court of Justice on the relations between constitutional courts and the other national courts is studied in section V(C) below.

A. Constitution-Conform Interpretation and the Demarcation of Constitutional and Ordinary Jurisdiction From a theoretical point of view, the division of labour between constitutional courts and the other national courts is straightforward: the former authoritatively establishes the meaning of the constitution and is exclusively competent to adjudicate all matters constitutional, whereas statutory interpretation and the resolution of non-constitutional disputes are considered the latter’s prerogative. In practice, however, this neat distribution of competences and responsibilities is often and increasingly blurred. The technique of constitution-conform interpretation, which is at present ubiquitous in the case law of European constitutional courts, is an important culprit in this regard. This technique entails that the court endeavours to read the legal rules under review in harmony with the constitution, and this may include the judges performing some sort of judicial surgery on the contested ch 4, section III-B. V Ferreres Comella, ‘The Rise of Specialized Constitutional Courts’ in Ginsburg and Dixon (eds), Comparative Constitutional Law (n 65) 274. For a description of how this played out between the Czech constitutional court and the other national courts, with the former attempting to transform judicial methodology and counteract the strong adherence by ordinary judges to formalism and textual positivism, see Z Kühn, ‘Worlds Apart: Western and Central Eastern European Judicial Culture at the Onset of the European Enlargement’ (2004) 52 American Journal of Comparative Law 531, notably from 551 onwards. 237 238

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provisions to overcome constitutional flaws that would otherwise have rendered the provisions liable to be declared unconstitutional.239 A prominent reason why constitutional courts engage in constitution-conform interpretation is to show respect for the popularly elected legislature: when used successfully, the judges are able to uphold the statutes enacted by the latter and may also succeed in avoiding an open confrontation with the governmental majority. A challenging use arises, however, as regards the use of the technique of constitutionconform interpretation. To determine whether the impugned legal rules comport with the constitution, it is clear that the constitutional court must decide on the meaning of the constitutional parameters that it will measure the pertinent legal rules against. In addition, it is necessary to establish the meaning to be given to the provisions whose validity the constitutional court is asked to assess. As just mentioned, statutory interpretation is usually considered the preserve of the ordinary courts, notably the country’s supreme court(s) which are in charge of safeguarding the uniform interpretation and application of legislation. Accordingly, in deciding on the constitutionality of a given legal text, a constitutional court will usually take the reading given to this text in the case law of the regular courts as its starting point.240 Yet, constitutional courts typically claim the power to provide an autonomous – and different – interpretation of the contested provisions if this is necessary to enable them to uphold those provisions. To illustrate, the German Bundesverfassungsgericht has consistently asserted that it is not bound by the interpretation given to the impugned legal rule by the ordinary judge who has doubts about its constitutionality, but that ‘Rather, it must independently establish the content of the provision submitted for constitutional review’.241 Similarly, the Czech Ústavní Soud has said that it does not feel absolutely bound by all ordinary court interpretations of statutes . . . Rather than annulling provisions that would conform to the constitution if interpreted differently, it gives preference to a constitutionally conforming interpretation, i.e., to requiring ordinary courts to change their interpretative practice.242

This may entail that the constitutional court either positively indicates the (range of) reading(s) of the statute that ensure(s) its alignment with the constitution or, alternatively, uses a negative formula and holds that the law is constitutional, insofar as it is not interpreted in a certain way that is proclaimed to be incompatible with the constitution. We saw in chapter six that the Italian Corte costituzionale and the Polish Trybunał Konstytucyjny have embraced the doctrine of the living law, which means that they in principle decide on the constitutionality of statutes as they are understood and applied (‘live’) in the consolidated case law of the ordinary courts.243 Still, even these constitutional courts This technique is discussed in more detailed in ch 6, section IV. This approach is not confined to proceedings brought before the constitutional court by means of the preliminary reference procedure. Even in the context of abstract constitutionality challenges, which are often initiated just after a law has entered into force, the constitutional court may be able to take account of case law of the regular courts concerning the interpretation and application of legislative provisions similar to those currently before it. In a similar vein, the German Bundesverfassungsgericht is given the power to ask the supreme federal or Länder courts to explain how and on the basis of what considerations they have to date interpreted the German Basic Law with regard to the issue currently before it for adjudication: Law on the Bundesverfassungsgericht, Art 82(4). 241 BVerfG 98, 145 (1998); also eg BVerfG 7, 45 (1958); BVerfG 51, 304 (1979); BVerfG 80, 244 (1989). 242 Czech constitutional court, The Relations between the Constitutional Courts and the Other National Courts, Including the Interference in this Area of the Action of the European Courts, National Report for the XIIth Congress of the Conference of European Constitutional Courts (2002) 26. 243 ch 6, section III. 239 240

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may have occasion to independently construe the meaning of the relevant legislation to be able to conclude that there is no breach of constitutional rules and principles.244 An example is offered by judgment SK 18/00 of the Polish constitutional tribunal, regarding the question of whether fault was required before public authorities could incur liability for their conduct.245 The relevant legal provisions were Article 417 of the Civil Code, according to which ‘The State Treasury shall be liable for harm caused by a State functionary in the performance of the duties entrusted to him’; and Article 77(1) of the Polish constitution of 1997, granting everyone ‘the right to compensation for any harm done to him by any action of an organ of public authority contrary to law’. The Trybunał Konstytucyjny reasoned as follows: In line with established case law, elaborated in relation to Article 417 of the Civil Code, in particular in the resolution of the supreme court of 15 February 1971 . . ., a fault on the part of the official is a necessary prerequisite for the liability of the State treasury to arise. . . . The constitutional tribunal had to analyse, in the light of the new constitutional text, what ought to be the point of reference for examining the conformity of Article 417 of the Civil Code: the perception of this provision elaborated before 1997 in the judicial practice or a new interpretation which is now developed in accordance with the constitutional standard. The first possibility would mean that it will be necessary to hold that Article 417 of the Civil Code is not in conformity with the constitution. But the constitutional tribunal believes that such a decision is not necessary for the following reasons: – Firstly, the requirement of fault on the part of the official as a condition to trigger the liability of the State Treasury under Article 417 of the Civil Code was not expressed in the literal text of that provision. The elimination of ‘fault’ from the list of requirements on which the liability of the State Treasury depends will thus not lead to an interpretation contrary to the express content of the norm . . .; – Secondly, and more importantly, the interpretation of legal provisions may not have a static character and must always allow for the priority of an interpretation which conforms to the Constitution. . . . The constitutional tribunal has avoided adopting, in the context of its interpretative decisions, interpretations of legal provisions which are contrary to established judicial practice and the common interpretation in the doctrine. But, in light of the relevant provision of the Civil Code, it should nevertheless consider that the traditional interpretation of Article 417 of the Civil Code by the regular judges has lost its relevance at the moment that the new Constitution was promulgated. . . . The tribunal has accorded primacy to the interpretation of the relevant provision in accordance with the Constitution because the unconstitutional interpretation thereof was developed before the entry into force of the Constitution.

The ability of constitutional courts to put forward their own reading of a statute, which may differ from that established in the case law of the regular courts, may thus be necessary to enable them to uphold the pertinent legal provisions and avoid the conclusion that there has been an infringement of the constitution. This may be particularly appropriate if the 244 For instance because there is as yet no consolidated case law generated by the (supreme) regular courts that must be respected or because the ‘living law’ is in conflict with constitutional demands, whereas an alternative reading that would ensure the conformity of the statute with relevant constitutional provisions is conceivable. 245 Decision SK 18/00 of 4 December 2001, State liability for harm caused by unlawful actions of its functionaries. See also M Safjan, ‘Décision de conformité sous réserve’ in P Bon and D Maus (eds), Les grandes décisions des cour constitutionnelles européennes (Paris, Dalloz, 2008) 784 ff.

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constitutional defect stems from the way in which the ordinary courts have construed these provisions, rather than being inherent in the text itself. Also, we have seen that constitutional courts are often careful in wielding their power to strike down statutes, being more or less deferential to the legislature. As such, it would seem to make sense to allow these courts to assess for themselves whether it is possible to read the statute in a way that makes it constitutionally valid, rather than simply accepting the statutory interpretation followed by the regular courts, which may not have been primarily or particularly thinking about constitutional rules and principles in devising this interpretation. Yet, when constitutional courts themselves interpret the law referred for scrutiny, they enter the traditional domain of the regular judiciary. The latter does not always take kindly to such jurisdictional boundary-crossings. This can notably be problematic when it comes to the binding effect of interpretative decisions adopted by constitutional courts which hold that the impugned provisions comport with the constitution provided they are read in a certain way. When the ordinary courts believe that they are not bound by such decisions and ignore the interpretative qualifications specified therein, the effectiveness of the technique of constitution-conform interpretation may be at risk.246 As poignantly described by the Czech Ústavní Soud, such an attitude would force the Constitutional Court to [take] steps which lead to absurd and unsustainable results: not to rely on the possibility of constitutionally consistent interpretation, abandon the principle of judicial self restraint, and if there is the slightest chance of constitutionally inconsist ent interpretation of a contested regulation, to annul it.247

In this regard, it is interesting to look at Italy. It will be recalled that the Italian constitution only ascribes binding erga omnes effects to decisions of the Corte costituzionale declaring legal rules unconstitutional. Accordingly, the Italian ordinary courts treat sentenze interpretative di rigetto, in which the Corte costituzionale indicates what it considers to be the single correct and constitutionally conforming interpretation of a statute, as authoritative precedents only. As the court of cassation observed, when explaining why it would not change its established interpretation of a provision of the criminal procedure code to conform to the reading of that provision put forward by the Corte costituzionale: Decisions interpretative di rigetto of the Corte costituzionale do not have erga omnes effect, unlike those declaring the constitutional illegitimacy of legal norms, and therefore amount only to a negative constraint on the judge in [charge of] the proceedings in which the relevant [preliminary] question was raised. In all other cases, the judge retains the power and duty to interpret autonomously the content of the legal norms, according to Article 101, paragraph 2 of the Constitution [‘judges are subject only to the law’].248 246 This is the case in Italy (see below in the main text) and in Poland, where the Supreme Court ruled in Decision I KZP 37/08 of 25 February 2009 that purely interpretative decisions establishing how a particular legislative provision should be construed are not binding on the ordinary courts, since they only need to abide by the constitution and statutes as per Art 178(1) of the Polish constitution. According to the Trybunał Konstytucyjny, the constitution recognises its ability to adopt interpretative decisions, which must be followed by the other State bodies, the courts included. Polish commentators have observed that the adoption of interpretative rulings, coupled with the absence of a version of the constitutional complaint mechanism that would enable the constitutional tribunal to impose its legal position on the supreme court and notwithstanding the use of the doctrine of the living law, are an important (potential) source of intra-judicial conflicts. See eg L Garlicki, ‘Vingt ans du Tribunal constitutionnel polonais’ in Renouveau du droit constitutionnel: mélanges en l’honneur de Louis Favoreu (Paris, Dalloz, 2007); M Safjan, ‘Poland: The Constitutional Court as a Positive Legislator’ in A Brewer-Carías (ed), Constitutional Courts as Positive Legislators: A Comparative Law Study (Cambridge, Cambridge University Press, 2011) 715–16. 247 Judgment Pl ÚS 41/02 of 28 February 2004, Clearance of Defence Counsel under VIII/b. 248 Corte suprema di cassazione, judgment of 31 March 2004. (my translation).

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As a result, as we saw in the previous chapter, the Corte costituzionale prefers to hand down decisions holding that legislation breaches the constitution, while manipulating the precise impact of such findings of unconstitutionality in various ways to achieve a result similar to that which could otherwise have been obtained by issuing interpretative decisions.249 To dispel any doubts as to the legal authority of interpretative qualifications or prescriptions, the constitutional courts in Belgium, Germany, Spain and France (since 2002) systematically include these in the operative part of their judgments, either explicitly setting them out in full or referring back to the relevant paragraphs of the judgment in which those reservations are articulated.250 In those countries that have established the constitutional complaint procedure, constitutional courts have an additional device to enforce respect for their interpretative decisions. The constitutional complaint mechanism allows constitutional courts to rule on alleged infringements of individuals’ fundamental rights perpetrated by public authorities, the regular judiciary included. Imagine the following scenario. The constitutional court finds, when adjudicating an abstract constitutionality challenge, that the provisions under review are in harmony with the constitution, provided they are interpreted in a particular manner. The ordinary courts subsequently do not heed those qualifications when applying those provisions when deciding specific controversies, and may thus be said to enforce unconstitutional rules. Affected individuals may thereupon lodge a constitutional complaint with the constitutional court, asserting that by disregarding the latter’s interpretative instructions, the regular (supreme) courts have behaved in an unconstitutional manner. For instance, the Spanish Tribunal Constitucional will only examine the merits of constitutional complaints that exhibit ‘special constitutional relevance’ and such relevance is taken to exist if, inter alia, the alleged fundamental rights violation stems from the regular courts’ failure to comply with relevant constitutional decisions.251 Significantly, when constitutional courts find that a constitutional complaint is justified, and that the ordinary judges have indeed neglected to protect fundamental rights to the degree that it holds is constitutionally required, they are able to quash the judgment that forms the object of the constitutional complaint. The ability to monitor compliance with, and where necessary enforce respect for, interpretative decisions by means of the constitutional complaint mechanism may notably be useful for the Czech and Hungarian constitutional courts, as these courts do not always include interpretative qualifications in the operative part of their judgments.252 It should be clear, however, that while the constitutional complaint procedure allows constitutional courts to assert and protect the authority of their rulings vis-à-vis the ordinary courts, it can also be a source of tension in the relationship between them, as will be explored in more detail below. A second way in which the technique of constitution-conform interpretation may influence the relationship between the constitutional and the ordinary courts has to do with the ch 6, section V-B(i). The Italian Corte costituzionale also does so when it adopts ‘manipulative decisions’ (sentenze manipolative) declaring that a law is unconstitutional, but adding several interpretative glosses to attenuate the impact of such findings of unconstitutionality. 251 Sentencia 155/2009 of 25 June 2009, at FJ 2. 252 While the constitutional complaint mechanism also exists in Poland, it can only be used by individuals to impugn the legislative provisions on which a court or an administrative authority has based its judgment or decision. This procedure accordingly cannot be used by individuals to challenge the compatibility of judicial or administrative decisions in specific cases with constitutionally guaranteed fundamental rights. For more detail, see ch 3, section III-B. 249 250

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preliminary reference procedure. This procedure allows ordinary judges who are unsure about the constitutionality of legal rules that they must apply in deciding a specific controversy to refer the question of the validity of those rules to the constitutional court for determination.253 Given the underlying rationale of this procedure, the ordinary court needs to substantiate in its reference why it believes that the legislation does not pass muster – or at least, why it harbours doubts as to its constitutionality – and this in turn means that it must carry out an initial assessment of the compatibility of this legislation with the constitution.254 Some constitutional courts are particularly demanding in this regard and explicitly require referring courts to first endeavour to construe the relevant legal rule in a constitution- conform manner before they will accept preliminary references.255 In Spain, this obligation is laid down in Article 5(3) of the Law on the Judiciary, which provides that regular courts should only raise questions of unconstitutionality and invoke the jurisdiction of the Tribunal Constitucional if they have been unable, on the basis of interpretation, to adapt the legal norm to constitutional standards.256 The Bundesverfassungsgericht has clarified in its case law that it expects ordinary courts to make a serious effort to engage in constitution-conform interpretation, on pain of the preliminary reference being rejected as inadmissible: A court can only ask for a decision of the Bundesverfassungsgericht on the constitutionality of a rule under Art 100 § 1 of the Basic Law and § 80(2) of the law on the Bundesverfassungsgericht, if it has dealt with the legal status [of the rule] in an exhaustive manner. This requires a discussion of the opinions in the case law and the literature regarding conceivable possibilities for its interpretation. The reference order has to indicate the constitutional level of scrutiny and has to state in detail the conviction of the court of the unconstitutionality of the rule that is being checked. This also includes a discussion of a constitution-conform interpretation, also if there are obviously several possible interpretations, that lead to encroachment of a different severity upon constitutionally protected positions and [if these different interpretations] are not all equally rele vant to the constitutional concerns of the referring court.257 253 A more detailed examination of this procedure in comparative perspective can be found in ch 3, section III-B. 254 As such, regular courts are engaged not only in statutory interpretation, but also in construing the meaning of relevant constitutional rules and principles – much in the same way that constitutional courts do not limit themselves to establishing the meaning of the pertinent constitutional parameters, but also decide on how the impugned statutory provisions should be read. 255 There are other aspects that go towards the admissibility of preliminary questions and that may impact on the division of labour and the relationship between the constitutional court and the ordinary courts. For instance, can the former verify for itself the relevance of an answer concerning the law’s constitutional compatibility for delivering judgment in the dispute pending before the referring court, or is it merely a passive receptor of preliminary questions, answering such questions even in those cases where the use of the preliminary reference procedure was not indicated? Another issue is whether the constitutional court is bound by the reference as formulated by the ordinary court, or whether it can reformulate the question and decide for itself on the selection of legislative provisions to be tested and the constitutional reference standards to be applied. For discussion, see eg the National Reports submitted by constitutional courts to the XIIth Congress of the Conference of European Constitutional Courts (2002) on the topic of The Relations between the Constitutional Courts and the Other National Courts, Including the Interference in this Area by of the Action of the European Courts. 256 Organic Law 6/1985 on the judiciary. Article 5(1) of the same law further states that the constitution is the supreme law of the land and binding on the ordinary courts, and instructs the latter to interpret and apply legal norms in accordance with the case law of the Tribunal Constitucional. It has been questioned whether Art 5(3) itself complies with the constitution, given that it imposes an additional condition for the use of the preliminary reference procedure that cannot be found in either the constitution itself or in the Organic Law on the Constitutional Tribunal. See L Diez-Picazo, ‘Principe de l’interprétation des lois conformément à la constitution’ in Bon and Maus (eds), Les grandes décisions des cour constitutionnelles européennes (n 245) 766. 257 BVerfG, 2 BvL 3/02 (2009) para 28 (internal references omitted) (my translation). In this case, the reference of the federal fiscal court (Bundesfinanzhof) was declared inadmissible, because this court had not made sufficient use of the possibility of a constitution-conform interpretation.

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Likewise, the Czech Ústavní Soud has indicated that regular courts should engage in constitutionally conforming interpretation to the fullest extent possible and may only initiate the preliminary reference procedure if they are ‘convinced that no possible interpretation of the provision would be in conformity with the Constitution’.258 The Italian Corte costituzionale has endorsed a comparable approach since the mid-1990s. In its landmark ruling no 356 of 1996, it laid down the principle that ‘laws are not declared constitutionally illegit imate because it is possible to give them an unconstitutional interpretation (and some judges may wish to do so) but because it is impossible to give them a constitutional interpretation’.259 Today, regular Italian judges are required to investigate for themselves whether it is possible to construe legislation in a way that ensures harmony with the constitution. If they believe that this cannot be done, they must explain their reasons in their reference order. Failure to do so means that the request for a preliminary ruling will be declared inadmissible. It has been said that the reason for the Corte costituzionale’s increasingly insistent demand that regular judges endeavour to read laws in accordance with the constitution, without its assistance, is to enable it to avoid a direct confrontation with political power, withdraw from the front line and let others control the majority where possible. In short, it wants to exercise the well-known “passive virtues” typical of a supreme court that [has] the power to review the constitutionality of law, but which finds itself operating in a system with a very strong political power. This suspicion seems obviously to be validated by the fact that in the mid-1990s, the Italian electoral system reached a turning point and went from the proportional to the quasi-majoritarian system.260

By requiring that regular judges seek to interpret legislation in a way that makes it constitutionally valid before they are able to initiate the preliminary reference procedure, constitutional courts gain some additional measure of control over their caseload and in particular over the ways in which their involvement can be triggered, which may be considered beneficial for efficiency reasons.261 At the same time, the constitutional role and responsibilities of the ordinary judiciary are enlarged as a result of this demand. If the ordinary courts do not accurately assess the scope for conciliatory interpretation, and are overly eager in this regard, the constitutional court may be unduly prevented from speaking out on constitutionally questionable rules.262 In the end, we may thus witness a shift in the division of labour between the constitutional and the ordinary judiciary in favour of the latter, and the introduction of decentralising tendencies in the centralised system for constitutional adjudication as it was originally established in many European countries.263 258 Czech constitutional court, The Relations between the Constitutional Courts and the Other National Courts, Including the Interference in this Area of the Action of the European Courts, National Report for the XIIth Congress of the Conference of European Constitutional Courts (2002) 11. 259 Sentenza 356/1996 of 14 October 1996, reaffirmed in eg sentenza 379/2007 of 5 November 2007 and sentenza 147/2008 of 7 May 2008. 260 E Lamarque, ‘Interpreting Statutes in Conformity with the Constitution: The Role of the Italian Constitutional Court and Ordinary Judges’ (2010) 1 Italian Journal of Public Law 91, 118. 261 In terms of avoiding a massive backlog and, relatedly, prolongation of the judicial process. 262 This development may be exacerbated by the fact that it may be difficult to determine when a regular court strays outside the scope of what is still possible or permissible in terms of constitution-conform interpretation. The Spanish constitutional tribunal, for one, indicated that use of constitution-conform interpretation does not authorise regular judges to offer a reading of the statute that is contra legem in sentencia 138/2005 of 26 May 2005. 263 This has been observed in Italy: see T Groppi, ‘The Italian Constitutional Court: Towards a “Multilevel System” of Constitutional Review?’ (2008) 3 Journal of Comparative Law 100; G Sorrenti, L’interpretazione conforme a costituzione (Milan, Giuffrè, 2006); Lamarque, ‘Interpreting Statutes in Conformity with the Constitution’ (n 260).

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B. The Appellate Dimension of the Constitutional Complaint Mechanism A second source of tension in the relationship between the constitutional court and the other national courts does not stem from a technique of decision-making, but from the existence and practical functioning of a specific procedural arrangement: the constitutional complaint mechanism. The purpose of this mechanism, it will be recalled, is to enable individuals to vindicate their fundamental rights that they allege have been infringed by one of the State’s institutions.264 Of the countries examined in this book, constitutional complaint procedures have been established in Germany, Spain, the Czech Republic, Hungary and Poland. It will be remembered that in the latter two jurisdictions, individuals may assert that the legal rules on the basis of which a regular court has delivered a ruling or the administration has adopted a decision affecting them, are unconstitutional. The constitutional court thus examines whether the legislature has committed a wrong vis-à-vis individuals by adopting a statute that violates their fundamental rights which should accordingly be declared unconstitutional. In these cases, the constitutional court cannot review and offer redress for breaches of fundamental rights caused by the incorrect application or interpretation of a statute by the regular judiciary or the administration in concrete cases. As such, this limited version of the constitutional complaint mechanism has no special significance for the relationship between the constitutional court and the regular judiciary and will be left aside in the remainder of this section. Conversely, in Germany, Spain, the Czech Republic and Hungary post-2012,265 individuals can file complaints alleging that the judiciary or the administration has committed an unconstitutional act by failing to accord the necessary respect for their fundamental rights when applying the relevant legislation in a specific case (in exceptional cases, there are also opportunities to challenge the constitutionality of that legislation itself on fundamental rights grounds). Before they are able to invoke the jurisdiction of the constitutional court, individuals must as a general rule have first exhausted all other legal means of redress.266 The upshot is that complaints are usually directed against a final judgment by a court in the higher echelons of the regular judiciary, with the constitutional court being asked to decide whether this judgment, and the statutory interpretation proposed in support thereof, is in line with constitutional requirements. When it finds that the regular courts have construed and applied the applicable legislative provisions in a manner that is incompatible with the constitution, the constitutional court can set aside the contested judgment. This in effect means that under this – more common – version of the constitutional complaint mechanism, a hierarchy of some sort is established between the constitutional court and other 264 A comparative examination of the core features of the constitutional complaint mechanism can be found in ch 3, section III-B. 265 Under the pre-2012 constitutional framework, individuals were only able to question the compatibility of legal rules – not the application thereof to their specific case – before the Hungarian Alkotmánybíróság by filing a constitutional complaint. Under the Hungarian Fundamental Law, this possibility has been retained, but in addition, individuals may now also assert that individual court decisions have impinged on their fundamental rights or liberties (Hungarian Fundamental Law, Art 24(2)(c) and (d); Act CLI of 2011 on the Constitutional Court, Arts 26–28). 266 The requirement that other available legal remedies must be exhausted before a constitutional complaint is admissible also applies in jurisdictions that subscribe to the more limited version of this mechanism. The under lying idea is that the regular court can, if it has doubts about the constitutionality of the legal rules to be applied in the specific controversy before it, initiate the preliminary reference mechanism and place the matter before the constitutional court.

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national courts given that the former is able to impose its own legal position on the latter by invalidating their constitutionally objectionable decisions.267 It is clear, then, that the constitutional court’s complaint jurisdiction is a potential source of intra-judicial tension. Whether such tensions will emerge in actual constitutional practice is dependent on a variety of factors. One of these concerns the admissibility of petitions alleging that the regular courts have acted in breach of fundamental rights and liberties. Constitutional courts receive large numbers of complaints every year, despite insisting on the extraordinary and subsidiary character of this procedure.268 Yet, on average, less than five per cent of all applications filed by individuals are examined on their merits by the various constitutional courts, of which only a number will be considered justified. This means that in reality, constitutional courts do not very often set aside judgments of the (highest) regular courts. To illustrate, between 1991 and 2011 more than 19,000 complaints were filed with the Bundesverfassungsgericht in which petitioners alleged that one of Germany’s five supreme courts had infringed their basic rights. During that period, only 327 supreme court rulings (approximately 1.7 per cent) were invalidated by the Bundesverfassungsgericht. The statistics of the Spanish Tribunal Constitucional show a similar pattern. From 2009 to 2011, the Tribunal Constitucional received 10,792, 8,947 and 7,089 complaints per year respectively, of which 2,215, 1,964 and 1,878 were directed against judgments handed down by the supreme court. Respectively 19, 6 and 8 decisions of the supreme court were quashed by the Spanish Tribunal Constitucional in those three years.269 While the rigorous approach to the screening of constitutional complaints principally stems from the wish, or even the need, to avoid the scenario where constitutional courts are paralysed by an influx of petitions, it may at the same time enable these courts to eschew potentially disruptive confrontations with the other national courts on too regular a basis. A second factor that may help to keep intra-judicial tensions at bay is tied to the threshold that must be crossed before the constitutional court will consider setting aside judgments of the ordinary courts. When exercising their complaint jurisdiction, constitutional courts act as subsidiary guardians of individuals’ fundamental rights: primary responsibility to protect and respect such rights rests with the regular courts, which is reflected in the requirement that complainants first exhaust other means of legal redress before they can petition the constitutional court. Constitutional courts typically assert that they will not 267 In the Czech Republic, this was initially a source of controversy between the constitutional court and the supreme court. Article 87(1)(d) of the constitution, which grants the former its constitutional complaint jurisdiction, speaks of ‘final decisions or other encroachments by public authorities’ and the latter maintained that the ordinary courts were not covered by the notion of ‘public authorities’. The constitutional court found otherwise in judgment 337/97 II US of 13 November 1997 and eventually prevailed on this question. 268 On the extraordinary character of the complaint jurisdiction, see eg BVerfG 78, 58 (1968) of the German Bundesverfassungsgericht and Decision Ts 174/02 of 25 May 2004, Subsidiary character of a constitutional complaint of the Polish constitutional tribunal. The European Court of Human Rights does not always accept this qualification in the context of alleged violations of Art 6 of the ECHR, which guarantees the right to a fair trial, notably as regards the requirement to observe reasonable time limits: ‘the relevant test in determining whether Constitutional Court proceedings may be taken into account in assessing the reasonableness of the length of proceedings is whether the result of the Constitutional Court proceedings is capable of affecting the outcome of the dispute before the ordinary courts’: Süssmann v Germany App no 20024/92 (ECtHR, 16 September 1996), para 39; Bock v Germany App no 11118/84 (ECtHR, 29 March 1989), para 37; Ruiz-Mateos v Spain App no 12952/8 (ECtHR, 23 June 1993), para 35. 269 It should be noted, though, that it normally takes several years before the Tribunal Constitucional decides on the merits of an admissible recurso de amparo, which means that its rulings delivered in the period 2009–11 were mostly in response to complaints filed in the years preceding this period.

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engage in comprehensive supervision of the (case law of the) other national courts, which would in any event be practically impossible. These sentiments are clearly reflected in the Bundesverfassungsgericht’s landmark case known as specific constitutional law (Spezifisches Verfassungsrecht), in which it articulated the basic tenets governing the review of decisions handed down by the ordinary courts when deciding whether a constitutional complaint should be successful: In the interpretation and application of ordinary law, the courts must take the constitutional parameters, notably the general clauses, into account. When a court neglects these parameters, it infringes, as a holder of public authority, these disregarded constitutional norms; its decision must be brought before the Bundesverfassungsgericht by means of a constitutional complaint. On the other hand, it would not be in line with the purpose of the constitutional complaint and the specific role of the Bundesverfassungsgericht when, similar to an appellate body [Revisionsinstanz], it would engage in an unlimited legal verification of judicial decisions, because an incorrect decision could possibly affect constitutional rights in the underlying part. The structure of the proceedings, the identification and assessments of facts, the interpretation of ordinary law and its application to the specific case are all matters for the courts of general jurisdiction and exempt from verification by the Bundesverfassungsgericht; only in the event of an infringement of specific constitutional law [Verletzung vom spezifischem Verfassungsgerecht] by the ordinary courts can the Bundesverfassungsgericht intervene on a constitutional complaint. Specific constitutional law is however not already violated, when a decision, measured against ordinary law, is objectively flawed; the defectiveness must lie precisely in the non-observance of fundamental rights. The limits of the possibilities for the Bundesverfassungsgericht to intervene can admittedly not always be clearly demarcated; a certain room for manoeuvre must remain for judicial discretion, which allows for consideration of the specific circumstances of each case. In general it can be said that the normal operation of substitution within [the domain of] ordinary law is exempt from verification by the Bundesverfassungsgericht for as long as no errors of interpretation are visible, that are based on a fundamentally [grundsätzlich] incorrect view as to the meaning, in particular the scope of protection, of a fundamental right and that also in their substantive meaning have a certain significance for the concrete legal dispute.270

The extent to which the Bundesverfassungsgericht reviews the decisions of the ordinary courts in practice depends heavily on the intensity with which these are perceived to encroach upon the relevant fundamental right or liberty. The result is generally that the constitutional judges look more closely at judgments delivered in cases concerning the deprivation of liberty or involving expropriation and a considerably lighter touch when the civil courts are alleged to have failed to duly observe fundamental rights in the field of private law.271 The Czech Ústavní Soud has similarly emphasised that it will not act as a supreme cassation court vis-à-vis the regular courts, because this would be in contrast with the bifurcation of the judiciary and the delineation of competences and functions between itself and the ordinary judges: 270 BVerfG 18, 85 (1964) (my translation), reaffirmed in eg BVerfG, 2 BvR 759/10 (2010). The reference to specific constitutional law (ie constitutional law, notably the fundamental rights enshrined in the Basic Law, in contrast to ordinary or non-constitutional law) is known in the German legal discourse as the ‘Heck-sche Formel’, after the name of the judge-rapporteur in the case. A more detailed discussion of the way in which the Bundesverfassungsgericht has fleshed out the principles laid down in BVerfG 18, 85, including an overview of the reception of this case law in the academic discourse, can be found in K Schlaich and S Korioth, Das Bundesverfassungsgericht: Stellung, Verfahren, Entscheidungen, 9th edn (Munich, CH Beck, 2012) 196–227. 271 See eg BVerfG 42, 143 (1976); BVerfG 83, 130 (1990) Mutzenbacher.

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[T]he Constitutional Court is not a court that stands in a position of superiority to the ordinary courts, it is not the pinnacle of their system, for which reason alone it may not arrogate to itself the right of supervisory review over their decision-making, provided these courts proceed in accordance with the provisions of Chapter Five of the Charter [of Fundamental Rights and Basic Freedoms, listing the fundamental rights concerning the judicial process].272

Yet, even if it does not happen very often, the constitutional complaint mechanism does allow the constitutional court to take on the role of an appellate court vis-à-vis the regular judiciary and annul their decisions for want of constitutional conformity. An example will illustrate how this can play out.273 In June 1989, a Spanish magazine published a series of articles divulging various intimate aspects of the personal life of Isabel Preysler, the first wife of singer Julio Iglesias, basing itself on information obtained from a former nanny. While Ms Preysler won her action for defamation in the lower civil courts and was awarded a substantial amount in damages,274 the supreme court (Tribunal Supremo) overturned these judgments, ruling that the disputed sentences that had appeared in the articles simply involved the ‘spreading of gossip of little importance’ and hence could not be considered to amount to ‘a serious offence or prejudice to a person’s privacy’.275 Ms Preysler filed a constitutional complaint (amparo) against this judgment with the Tribunal Constitucional, which found that she had suffered a violation of her constitutional right to privacy at the hands of the Tribunal Supremo and accordingly annulled the latter’s decision.276 In particular, the Tribunal Constitucional emphasised that when balancing the right to respect for private life and the right to freedom of expression, the decisive criterion was not the vera city of the facts disclosed, but their public relevance. The information provided in the articles written about Ms Preysler was not considered to have any public importance: In this case, a simple reading of the newspaper articles considered here is enough to see that the information divulged has no public relevance, since it refers to various aspects of the personal and family privacy of the complainant, from her supposed or real physical defects and her efforts to reduce them to prevent them from being known to a detailed description of her daily life at home and the habits of family members living with her. This implies therefore that the newspaper articles cannot find refuge in the fundamental right to freely communicate information but consti Judgment Pl IV ÚS 98/97 of 30 June 1997, Object of Criminal Offence. Besides the ‘Preysler’ saga examined below, another (more serious) conflict between the Spanish constitutional tribunal and the supreme court took place in the early 2000s, which involved the supreme court asserting competence to examine whether the constitutional judges were liable under civil law for summarily rejecting a constitutional complaint and actually imposing a fine on 11 constitutional judges of 500 euro each. After the Tribunal Constitucional had vehemently denounced this decision for unlawfully usurping its exclusive powers and accused the supreme court of seeking to position itself above the Tribunal Constitucional, the Spanish government intervened and amended Art 4 of Organic Law 2/1979 on the Constitutional Tribunal, which now provides that ‘constitutional court decisions may not be reviewed by any other domestic court of the State’. In addition, Art 44(1)(b) of this Organic Law now stipulates that the Tribunal Constitucional must limit itself to examining the conduct of judicial bodies for compliance with constitutionally protected fundamental rights and that it is not competent to adjudicate the circumstances that led to the proceedings before the ordinary courts. This other conflict between the two Spanish courts is described by P Cruz Villalón, ‘Conflict between Tribunal Constitucional and Tribunal Supremo: A National Experience’ in I Pernice, J Kokott and C Saunders (eds), The Future of the European Judicial System in a Comparative Perspective (Baden-Baden, Nomos, 2011); L Turano, ‘Spain: Quis Custodiet Ipsos Custodes? The Struggle for Jurisdiction between the Tribunal Constitucional and the Tribunal Supremo’ (2006) 4 International Journal of Constitutional Law 151. 274 The first instance court in Madrid awarded five million pesetas (approximately 30,000 Euro) in damages, which had been revised to 10 million (approximately 60,000 Euro) by the Audiencia provincial in Barcelona on appeal. 275 First Senate of the supreme court, sentencia of 31 December 1996. 276 Sentencia 115/2000 of 5 May 2000. 272 273

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tute, on the contrary, an illegitimate intrusion in the constitutionally guaranteed area of intimacy of the complainant.277

Following her victory before the Tribunal Constitucional, Ms Presyler turned again to the Tribunal Supremo for a determination of the amount of damages she would be entitled to in light of the recognition that there had been an infringement of her right to privacy – an issue that the Tribunal Supremo had not considered necessary to decide in its original (and now annulled) judgment. While the Tribunal Supremo accepted that there had indeed been an unlawful interference with Ms Preysler’s right to privacy, it found that the violation was not particularly grave, describing the offensive sentences that had appeared in the magazine as ‘insignificant given the enormous visibility – indeed prominence – of the person concerned’. As a result, the Tribunal Supremo summarily concluded, the plaintiff was entitled to 25,000 pesetas (approximately 150 Euro) in damages, a mere pittance compared to the 10 million pesetas (approximately 60,000 Euro) award that the second instance court (Audiencia provincial) had originally made.278 Unsurprisingly, Ms Preysler thereupon lodged a second amparo with the Tribunal Constitucional, this time alleging that the improper execution of the constitutional decision had breached her right to effective judicial protection and also claiming to have suffered violations of her rights to privacy and due process in view of the superficial reasoning adduced by the Tribunal Supremo to justify the small amount of damages awarded. The Tribunal Constitucional again found for Ms Preysler, holding that the lack or inadequacy of reasoning supporting a judicial decision regarding a substantive fundamental right in and of itself entailed an infringement of that right.279 It further pointed out that the Tribunal Supremo had already ruled twice on the alleged violation of the right to privacy in the context of the controversy involving Ms Preysler, and continued as follows: [T]here is reason to declare that compensation of 25,000 pesetas is insufficient to repair the right to personal and family privacy of the complainant. However, from the perspective of the injury of that fundamental right, the most significant question is not that, but the departure by the contested judgment of the criteria fixed in STC 115/2000 [the Tribunal Constitucional’s first decision in this case] in order to define the scope of that right and determine the compensation. Therefore, having analysed the question from this perspective, it can be concluded that, in effect, by revising the amount of compensation fixed by the Audiencia Provincial the judgment now contested is based on an understanding of the right to privacy which is not consistent with the interpretation of that fundamental right provided by this Tribunal in its decision, and which binds all judges and courts that make up the judiciary. . . . Given that the contested judgment against which the amparo is directed does not consider, even after the proclamation laid down in decision 115/2000, that the disclosure of such information constitutes the nucleus of the illegitimate intrusion made into the right to personal and family privacy of the applicant for the amparo, and reiterates again an underestimation of the loss suffered by the affected fundamental right based on the alleged ‘insignificant character’ of some of the sentences of the article published in the magazine ‘Lecturas’, the judgment against which an amparo is filed puts forward an interpretation that, far from repairing the right infringed, again injures the right to privacy (Art 18(1) of the Spanish Constitution), thus undermining the legal effectiveness of the subjective situation declared in our earlier judgment. . . . ibid, at FJ 10 (my translation). First Senate of the Tribunal Supremo, sentencia of 20 July 2000. 279 Sentencia 186/2001 of 17 September 2001. 277 278

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In the present case, granting the amparo entails a declaration of nullity of the contested judgment. But the reinstatement of the complainant in the integrity of her fundamental right requires, given the particular circumstances of the situation adjudicated in this case, that our decision does not limit itself to declaring that nullity and referring the matter back to the supreme court for a new ruling, since, on the one hand, we are faced with a defect in iudicanco and, on the other hand, unlike what has happened on other occasions, the judicial organ whose judgment is the object of this request for an amparo has already ruled twice on this matter, the full restoration of the right to personal and family privacy requires here, by reason of the specific characteristics of the case, to exclude such a return in order that the reparation is not dilated in an unacceptable way as a result of being submitted to a process that can be prolonged indefinitely and that, as a consequence, by its very length, could make the necessary reparation of the infringed fundamental right illusory. Accordingly, the judgment delivered by the first Senate of the supreme court on 20 July 2000 is [hereby] declared void and, for the reasons indicated, it is declared that, as regards the amount of damages, this must be executed, following our judgment, in the amount determined in accord ance with the criteria for damages set out in the judgment of the Audiencia Provincial in Barcelona of 12 January 1993, whose reasoning is in accordance with the requirements of the fundamental right expressed in decision 115/2000.280

Two judges wrote a joint dissenting opinion. While they agreed with the majority that Ms Preysler’s right to effective judicial protection had been breached, they considered that the proper solution would have been to return the case once more to the Tribunal Supremo for a new judgment in accordance with the statements made by the Tribunal Constitucional as regards Ms Preysler’s right to privacy. By directly determining the amount of damages to which she would be entitled, the majority had – so the dissenters argued – usurped the jurisdiction of the regular courts as it is for them to decide such matters. In other countries too, there have been divergences of opinion between the constitutional court and the supreme court(s) regarding substantive issues and the demarcation of their respective competences. For instance, the Czech Ústavní Soud and the Czech supreme administrative court were recently locked in a protracted struggle regarding the permissibility of special pension increments for Czech citizens for periods of work for an employer established or resident in Slovakia completed prior to the dissolution of the Czechoslovak federation on 31 December 1992.281 In this so-called ‘Slovak pensions saga’,282 the supreme administrative court steadfastly refused to follow constitutional decisions, which hold that such increments are necessary to ensure respect for the constitutional principle of equal ity.283 Several judgments of the supreme administrative court proclaiming a contrary view were challenged by individuals filing constitutional complaints with the Ústavní Soud, and the latter has so far consistently invalidated the impugned decisions, reminding the ibid, excerpts from FJ 7–9 (my translation). An older controversy between the Czech constitutional court and the supreme court concerned the issue of whether constitutional judgments delivered in response to a constitutional complaint have binding force beyond the specific controversy at hand, ie whether they have precedential value for the ordinary courts more generally. Matters came to a head in a case concerning conscientious objectors and compulsory military service, but the constitutional court in the end prevailed. For more detail, see J Prĭbánˇ , ‘Judicial Power vs Democratic Representation: The Culture of Constitutionalism and Human Rights in the Czech Legal System’ in Sadurski (ed), Constitutional Justice, East and West (n 163) 380–82; P Holländer, ‘The Role of the Constitutional Court for the Application of the Constitution in Case Decisions of Ordinary Courts’ (2000) 86 Archiv für Rechts- und Sozialphilosophie 537. 282 This conflict eventually expanded to encompass a European dimension, with the supreme administrative court asking the Court of Justice for its views on the compatibility of such increments with EU law. The European dimension of the Slovak pensions saga is discussed below (see text to nn 418–26). 283 At the time of writing, the latest judgment of the constitutional court on the matter was Pl ÚS 5/12 of 31 January 2012, Slovak Pensions. 280 281

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supreme administrative judges that they should heed the relevant constitutional case law.284 And in Germany as well, there have been instances where the Bundesverfassungsgericht and the other national courts have not seen eye to eye, and where the former has occasionally been moved to overturn (established) case law of the federal supreme courts for breaching constitutional rules and principles, to the chagrin of the latter.285 The Spanish example further shows how the ideal separation of functions and jurisdiction between constitutional courts and the other national courts is difficult to sustain in practice. For the Spanish Tribunal Supremo, the principal issue in the Preysler case concerned the determination of the degree to which the applicant’s right to privacy had been breached (if at all), which was intimately bound up with the identification and assessment of the relevant factual circumstances of the specific controversy. It considered that such matters fell squarely within the province of the ordinary judiciary and that it accordingly had the last word in this regard. Conversely, for the Spanish Tribunal Constitucional, such determinations could compromise the respect due for a fundamental right, which transforms such questions into potential constitutional issues that thus legitimately come within its constitutional complaint jurisdiction. This brings us to a final point. Constitutions – and the principles and values they embody – have become generally relevant within national legal systems and their impact is no longer confined to the traditional domain of constitutional law. This applies notably to constitutional provisions that enshrine fundamental rights: the Bundesverfassungsgericht has for instance asserted that the German catalogue of rights establishes an ‘objective order of values’ which ‘serves as a yardstick for measuring and assessing all actions in the areas of legislation, public administration, and adjudication’.286 Similarly, according to the Czech constitutional court, one of the functions of the Constitution, and especially of the constitutional system of basic rights and freedoms, is its ‘radiation’ throughout the legal order. The sense of the Constitution rests not only in ordering basic rights and freedoms . . . but also in a duty of state and public bodies to interpret and apply law considering the protection of basic rights and freedoms.287

The permeation of constitutional concepts, principles and values throughout the entire legal order means that there are few, if any, legal issues that are not influenced by rules of constitutional law and completely immune from decisions handed down by the constitutional court. This cannot but affect the relationship between the latter and the other national courts. The This is particularly clear in Judgment Pl ÚS 4/06 of 20 March 2007, paras 23–28. See eg BVerfG, 1 BvR 1905/02 (2005), in which the Bundesverfassungsgericht decided – contrary to the position adopted by the Bundesgerichtshof and the federal finance court (Bundesfinanzhof) in their case law – that Art 79(2) of the law on the Bundesverfassungsgericht, according to which decisions of the ordinary courts with force of res judicata that are based on a legal provision that is subsequently declared null and void cannot be executed, is analogously applicable in situations where it has declared that not the legal norm itself, but the interpretation given to it by the ordinary courts, is incompatible with the Basic Law. For another example consider BVerfG, 1 BvR 699/09 (2011), in which the Bundesverfassungsgericht established that private companies in which the State is a shareholder are directly bound by fundamental rights and that individuals have a right of access to ‘public venues’ such as airports for the purpose of exercising the right to assembly, and accordingly annulling the judgment by the federal court of justice (Bundesgerichtshof) setting forth a different view on the influence of fundamental rights in the particular area of private law and in support of which the federal administrative court (Bundesverwaltungsgericht) had intervened in the proceedings. More examples can be found in G Roellecke, ‘Aufgabe und Stellung des Bundesverfassungsgerichts in der Gerichtsbarkeit’ in J Isensee and P Kirchhof (eds), Handbuch des Staatsrechts – Band III: Demokratie – Bundesorgane (Heidelberg, CF Müller, 2005). 286 BVerfG 7, 198 (1958) Lüth. 287 Judgment III, ÚS 139/98; excerpt from Z Kühn, ‘Czech Constitutional Court as Positive Legislator?’ in Brewer-Carías, Constitutional Courts as Positive Legislators (n 246) 451. 284 285

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material scope of jurisdiction of the constitutional court has expanded to encompass the constitutional dimension of other areas of the law beyond the classic realm of constitutional law. The regular courts in turn are expected and endeavour to construe and apply legislation governing aspects of criminal or private or social security law in line with relevant constitutional provisions and principles. Garlicki has pointed out that as it becomes progressively impossible to draw a sharp distinction between constitutional and other legal rules, ‘the functions of constitutional courts and those of ordinary courts are bound to overlap, and this cannot but produce tensions and conflicts’.288 In a similar vein, Sajó has argued that the consequences of the process of constitutionalisation of the entire legal system are considerably greater for the regular courts than for the political institutions: Continental constitutional adjudication is strongly in favor of the increased protection of fundamental rights. In view of this fact, the majority of Italian, German, and Spanish cases grow out of actual legal disputes, and constitutional review there occurs mostly as appellate constitutional adjudication. Constitutional adjudication does not primarily affect the legislature but it does the ordinary administration of justice, and in practice, it extends constitutionalisation (primarily through the protection of fundamental rights) to areas beyond public law, to criminal, administrative, and private law.289

IV. INTERACTIONS AMONG EUROPEAN CONSTITUTIONAL COURTS

Thus far, we have looked at various issues pertaining to the relationship between constitutional courts and other domestic actors that influence the practical operation of national systems of constitutional review. Yet, as Vicki Jackson has observed, ‘domestic constitutions operate [in] an increasingly transnational legal environment’290 and it is clear that this new universe will particularly affect constitutional courts, in view of their role as principal guardians of constitutional provisions and principles. The aim of the final three sections of this chapter is therefore to explore several aspects of the transnational environment within which European constitutional courts today carry out their functions. Sections V and VI below explore the interplay between these institutions and the two courts at the European level: the Court of Justice of the European Union and the European Court of Human Rights.291 This section acts as a bridge between those sections and what has already been discussed: it explores more or less institutionalised forums for interaction and contact among constitutional courts in the various (European) countries.292 More particularly, it deals with the 288 Garlicki, ‘Constitutional Courts versus Supreme Court’ (n 236) 65. See also Michelman, ‘The Interplay of Constitutional and Ordinary Jurisdiction’ (n 233) notably at 282–89. 289 A Sajó, Limiting Government: An Introduction to Constitutionalism (Budapest, CEU Press, 1999) 243. 290 Jackson, Constitutional Engagement in a Transnational Era (n 6) 1. 291 See also Opinion no 9 of the Consultative Council of European Judges (CCJE) for the attention of the Committee of Ministers of the Council of Europe on the role of national judges in ensuring an effective application of international and European law, Strasbourg, 8–10 November 2006, underlining the value of dialogue between national judges and the European Court of Human Rights and the Court of Justice of the European Union as well as between national judges in different countries, and offering recommendations on how to enhance the frequency and intensity of such judicial interactions. 292 It is acknowledged that besides such semi-institutionalised forums, there also exist judicial or epistemic communities: judges are said to share common beliefs, values, and a self-perception and understanding of their role in the legal system and in society, and they may share a common interest in the intrinsic value of legal concepts and in the quality of legal argument; and hence, transnational dialogue may flow naturally. On such global judicial communities, see in particular the works of A-M Slaughter, A New World Order (New Jersey, Princeton

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Conference of European Constitutional Courts (section A), the Venice Commission and the World Conference on Constitutional Justice (section B). It concludes with a discussion of the merits of judicial networking among national constitutional courts (section C).293 A. Conference of European Constitutional Courts294 The Conference of European Constitutional Courts was established in Dubrovnik in 1972, at the initiative of the presidents of the German, Austrian, Italian and former Yugoslavian constitutional courts. For the first 20 years of its existence, the Conference operated without a formal set of rules to govern its organisation and functioning. This was initially unproblematic, in view of the relatively small number of participating courts. However, with the influx of new members from the early 1990s onwards – notably in the wake of the transition to democracy in central and eastern Europe and the establishment of constitutional courts in that region – a greater degree of regulation was considered desirable. Accordingly, in 1999 the Conference adopted a Statute, which was complemented by a set of Regulations accepted in 2002. Membership of the Conference is open to all judicial bodies that exercise constitutional jurisdiction,295 which is understood to include bodies competent to review laws against the national constitution.296 In addition, eligibility for membership is dependent on the candidate court acting in accordance with the principle of judicial independence and being bound by the fundamental principles of democracy and the rule of law, and the duty to respect human rights. A distinction is made between full and associate membership, with the latter option available to courts that either do not want full membership or that do not (yet) satisfy the requirements just mentioned.297 The Conference today has 40 full members, including all the constitutional courts under study in this book.298 The University Press, 2005); ‘A Global Community of Courts’ (2003) 41 Harvard International Law Journal 191; ‘Judicial Globalization’ (2000) 40 Virginia Journal of International Law 1103; ‘A Typology of Transjudicial Communications’ (1994) 29 University of Richmond Law Review 99. 293 On judicial networking in a semi-institutionalised setting more generally, including how the existence of judicial networks may affect the relationship between the Court of Justice and national courts, see M de Visser and M Claes, ‘Courts United? On European Judicial Networks’ in A Vauchez and B De Witte (eds), Layering Europe: European Law as a Transnational Social Field (Oxford, Hart Publishing, 2013); M Claes and M de Visser, ‘Are You Networked Yet? On Dialogues in European Judicial Networks’ (2012) 8 Utrecht Law Review 100. 294 www.confcoconsteu.org. Note the name ‘conference’ instead of ‘association’ or ‘network’ commonly used by other judicial networks. This is probably due to the specific role of these courts, and aims to stress their continuing independence and neutrality. 295 Statute of the Conference of European Constitutional Courts, Art 6(1)(a). It is thus not necessary for the court to be located in one of the EU’s Member States. Membership applications must be submitted to the president of the ‘Circle of Presidents’ (see below) and should include the legal instruments governing the establishment and composition of the applicant court as well as the appointment and status of its judges, texts stating the nature and scope of the jurisdiction, and documents that demonstrate jurisdiction actually exercised. 296 As such, the request of the Dutch supreme court (Hoge Raad) to become a full member was denied, in view of Art 120 of the Dutch constitution, which prohibits courts from reviewing the constitutionality of acts of parliament: see Resolution VII of the XIVth Congress of the Conference of European Constitutional Courts. 297 Statute of the Conference of European Constitutional Courts, Art 6(1)(b). At the time of writing, there was only one associate member: the constitutional court of Belarus. 298 The German Bundesverfassungsgericht and the Italian Corte costituzionale have been full members since the establishment of the Conference in 1972. As for the other courts under study, the dates of admission are, in chronological order, as follows: 1981 (Spanish Tribunal Constitutional); 1987 (French Conseil constitutionnel); 1990 (Belgian Cour constitutionnelle and Polish Trybunał Konstytucyjny); 1992 (Hungarian Alkotmánybíróság); 1997 (Czech Ústavní Soud).

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Court of Justice and the European Court of Human Rights have been granted the status of observer.299 Broadly speaking, the Conference seeks to enable the sharing of practical experiences among its members and promote the exchange of ideas. Its precise aims are set out in Article 3 of its Statute, which deserves to be quoted in full: The Conference shall hold at regular intervals a Congress. It shall promote the exchange of information on the working methods and constitutional case-law of member courts together with the exchange of opinions on institutional, structural and operational issues as regards public-law and constitutional jurisdiction. In addition, it shall take steps to enhance the independence of constitutional courts as an essential factor in guaranteeing and implementing democracy and the rule of law, in particular with a view to securing protection of human rights. It shall support efforts to maintain regular contacts between the European Constitutional Courts and similar institutions.

The principal means for achieving these aims is through the organisation of triennial congresses, where members, observers and guests300 provide each other with savoir-faire as regards constitutional practice and case law in relation to a selected theme that is of common concern to the participants.301 These congresses have addressed a wide range of topics, dealing for instance with the powers of constitutional courts and the effects of their rulings;302 relations among members and with other national courts and the European courts;303 the protection of fundamental rights;304 and relations with the other branches of government.305 The selection of the congress theme falls within the purview of the Circle of Presidents,306 which is the principal decision-making body of the Conference and comprises – as its nomenclature indicates – the presidents of the courts that enjoy full membership status.307 In practice, the 299 This possibility is recognised by the Statute of the Conference of European Constitutional Courts, Art 5 and the Regulations of the Conference, Art 5. The Court of Justice and the European Court of Human Rights were both granted observer status in 1981, at the Vth Congress organised by the Conference in Lausanne (Switzerland). In 1996, during the Xth Congress in Budapest (Hungary), the European Commission for Democracy through Law (Venice Commission) became an observer. 300 Eligible as guests are the highest court of the host country, other European and non-European courts that are neither members nor observers, other institutions exercising constitutional jurisdiction, and individuals: Regulations of the Conference, Art 5(2). 301 Regulations of the Conference, Art 2. 302 Ist Congress (1972, Dubrovnik), ‘The Competence of Constitutional Courts and the Legal Implications of their Decisions’; VIIth Congress (1987, Lisbon), ‘Nature, Content and Effect of Decisions on the Constitutionality of Norms’; XIVth Congress (2008, Vilnius), ‘Problems of Legislative Omission in Constitutional Jurisprudence’. 303 IXth Congress (1993, Paris), ‘The Constitutional Protection and International Protection of Human Rights: Competing or Complementary?’; XIIth Congress (2002, Brussels), ‘The Relations between the Constitutional Courts and the Other National Courts, Including the Interference in this Area of the Action of European Courts’; the upcoming XVIth Congress (2014, Austria), ‘Co-Operation of Constitutional Courts in Europe: Current Situation and Perspectives’. 304 IVth Congress (1978, Vienna), ‘The State and the Scope of Fundamental Rights’; VIIIth Congress (1990, Ankara), ‘The Hierarchy of Constitutional Norms and its Function in the Protection of Fundamental Rights’; XIth Congress (1999, Warsaw), ‘The Constitutional Jurisprudence on Religious Freedom and the Legal Regime of Cults and Religious Freedom’; XIIIth Congress (2005, Nicosia), ‘The Criteria of the Limitation of Human Rights in the Practice of Constitutional Justice’. 305 IIIrd Congress (1964, Rome), ‘The Constitutional court and the Legislature’; VIth Congress (1984, Madrid), ‘Relations between the Central Authority and Regional Authority in the Constitutional Jurisprudence’; Xth Congress (1996, Budapest), ‘Freedom of Thought: Separation of Powers in the Jurisprudence of Constitutional Courts’; XVth Congress (2011, Bucharest), ‘Constitutional Justice: Functions and Relationship with the Other Public Authorities’. 306 Regulations of the Conference, Art 3. 307 The Statute of the Conference of European Constitutional Courts, Art 9(2) outlines the other competences and responsibilities of the Circle of Presidents, such as deciding on the admission of members, observers and guests and dealing with financial aspects. Decisions are taken with a two-thirds majority vote.

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Circle of Presidents tends to accept the proposal made to this effect by the court hosting the upcoming congress.308 This host constitutional court also holds the rotating chairmanship of the Conference for a period of three years, commencing from its designation as the organiser of the upcoming congress until the moment that this event has actually taken place.309 During this period, the president of the host court will represent the Conference to the outside world and acts as its secretariat.310 After the topic for the next congress has been agreed upon, the host court draws up a questionnaire, on the basis of which it is customary for members and observers to draft national reports, in their national language and either in English or French.311 Besides preparing its own country report, the host court normally also compiles a general report, which offers a comparative analysis of the approaches and experiences of the participating courts in relation to the congress topic. These reports are presented and debated during the two- to three-day congress, and, ‘Depending on the topic and the organisation, the discussions are mostly very animated, however, sometimes they may also be rather sluggish’.312 Congress proceedings are not open to the public,313 but the national and general reports are published on the Conference’s website, together with any resolutions adopted by the Circle of Presidents.314 It should be noted that constitutional courts have also gathered at the invitation of an individual constitutional court, outside the framework of the triennial congresses. By way of example, in 1995 the president of the Italian Corte costituzionale invited the other presidents to Rome to discuss the relationship between European and national law.315 Two years later, in 1997, the French Conseil constitutionnel hosted a meeting on the issue of the constitutionality of secondary EU law.316 It is difficult to assess the precise impact of the Conference on the functioning of individual constitutional courts and trace its influence on their case law, notably as regards the perception and reception of rulings handed down by courts in other jurisdictions.317 Having said that, it is worth pointing out that the participating members seem to attribute an important role to the Conference in facilitating transnational contacts and cooperation, which are regarded as increasingly important given the rapidly changing and increasingly globalised context within which constitutional courts exercise their functions. Consider the following extracts from two speeches delivered respectively by the presidents of the Lithuanian and Austrian constitutional courts, both speaking in their capacity as chair of the Conference: 308 This usually happens during the so-called preparatory meeting, which is held in a year after the most recent congress to prepare for the next congress. 309 Statute of the Conference of European Constitutional Courts, Art 9(3). 310 ibid, Art 13. 311 Regulations of the Conference, Art 12(4). 312 G Holzinger (2011–14 chairman of the Conference), ‘Presentation of Experiences and Expertise from the Conference of European Constitutional Courts, which will provide insight into the Association of Asian Constitutional Courts and Equivalent Institutions (AACC) future directions’ (Inaugural Congress of the AACC, Seoul, 20–24 May 2012). 313 Although the media are invited to the opening and closing sessions: Regulations of the Conference, Art 14. 314 The website is managed by the Belgian Cour constitutionnelle and seen as a medium of permanent communication between the members of the Conference: Resolution X of the XVth Congress; Resolution I of the XIIth Congress. 315 Corte Costituzionale, Diritto comunitario europeo e diritto nazionale: atti del seminario internazionale, Roma 14–15 luglio 1995 (Milan, Giuffrè, 1997). 316 The meeting is well documented in (1997) 4 Cahiers du Conseil constitutionnel. 317 Note, however, that this is one of the themes selected for discussion during the upcoming XVIth Congress that will take place in Austria in 2014, and the national reports that will be prepared for this gathering may provide useful information on the role of the Conference in fostering cross-border judicial engagement.

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The recent changes in life and their speed determine that the circle of [constitutional] problems has become very large and is still expanding; the questions related to the European integration, information technologies and information society, bio-ethics, migration, etc. come within the scope of constitutional control. These are serious challenges to the constitutional control which aims not only to protect the national constitutional system and to consolidate the priority of human rights, but which must also do so in [such] a way that the national systems would be as open to the world as possible. The experience of the courts of other countries might always be useful to a court which is looking for an answer. The separation of powers, constitutional rights, the constitution and religion, the relations of constitutional courts with other courts are the topics which are confronted by the constitutional justice of any state. Such issues were the topics analyzed during the congresses of our Conference. The material of these congresses is the object of our constant studies.318 The growing internationalisation of constitutional law, the dialogue with the European Court of Human Rights, and also the increasing constitutionalisation of European Union law – which is very significant for more than half of the members of the CECC – constantly pose new challenges for constitutional justice in all European states. Thereby comparative constitutional law and comparing constitutional case-law is becoming increasingly important. Against this background, the CECC forms an eminently important forum for the regular, broad and multilateral exchange of opinions, thoughts and experiences. Beyond that, the Conference also takes into account the necessity of “networking” between the national Constitutional Courts.319

B. Venice Commission and World Conference on Constitutional Justice Another forum for cooperation and contact among constitutional courts is the Venice Commission, which is the advisory body of the Council of Europe320 in the field of constitutional law.321 Its members include all the States party to the Council of Europe, and it should be noted that these are not confined to countries on the European continent – all States that are members of the European Union are included – but also encompass several Asian, African and Southern American countries.322 In terms of internal organisation, collaboration with constitutional courts is steered by the Joint Council on Constitutional Justice.323 This body has a mixed composition, comprising members of the Venice Commission – who must be 318 E Küri (2008–11 chairman of the Conference), ‘Address on behalf of the Conference of European Constitutional Courts’ (5th Annual Conference of Asian Constitutional Court Judges, Seoul, October 2007). 319 Holzinger, ‘Presentation of Experiences and Expertise from the Conference of European Constitutional Courts’ (n 312). 320 The Council of Europe (http://hub.coe.int/web/coe-portal) is an international organisation, set up in the aftermath of WWII. Its primary aim is to ‘create a common democratic and legal area throughout the whole of the continent, ensuring respect for its fundamental values: human rights, democracy and the rule of law’. It does so with particular reference to the European Convention on Human Rights, which was adopted under its aegis. 321 Its official name is the European Commission for Democracy through Law: see www.venice.coe.int. For a general description, see R Dürr, ‘The Venice Commission’ in T Kleinsorge, Council of Europe (The Hague, Kluwer, 2010). 322 This has been possible since February 2002, when non-European states were given the option of becoming full members of the Council of Europe. The European Commission has a special status and is entitled to participate in the plenary sessions of the Venice Commission. The US has been an observer to the Council of Europe since October 1991 and in January 2013 submitted a request for full membership of the Venice Commission. 323 The Venice Commission is also involved in a host of other activities, chief amongst which is providing countries with advisory opinions on draft (organic) legislation and texts with constitutional status, as it has for instance done in relation to Hungary’s Fundamental Law and the new Act CLI on the Hungarian Constitutional Court (Venice Commission, Opinion 621/2011 on the New Constitution of Hungary (CDL-AD(2011)016, Venice, 17–18 June 2011); Venice Commission, Opinion 665/2012 on Act CLI of 2011 on the Constitutional Court of Hungary (CDL-AD(2012)009, Venice, 15–16 June 2012)). Its cooperation with constitutional courts is seen as the logical extension of this work, by focusing on the implementation of the democratic values enshrined in the constitutional texts.

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‘independent experts who have achieved eminence through their experience in democratic institutions or by their contribution to the enhancement of law and political science’324 – and liaison officers of the participating constitutional courts. The chief aim pursued by the Venice Commission is to uphold democracy, human rights and the rule of law as the bedrock of Europe’s constitutional heritage. To this end, it has developed different ways of interacting and collaborating with constitutional courts and equivalent bodies under the supervision of the Joint Council on Constitutional Justice – ranging from quite passively acting as a conduit for the dissemination of information to being an active catalyst in uniting courts in a World Conference on Constitutional Justice. The following paragraphs explore these activities in more detail. One of the Venice Commission’s first forays into the field of constitutional justice involved the use of sophisticated IT systems to provide and improve knowledge regarding the functioning of constitutional courts in other jurisdictions. Beginning in 1993, the Venice Commission publishes regular bulletins on constitutional case law, featuring summaries of the most important rulings of the participating courts in both English and French. This bulletin is complemented by an electronic database known as CODICES, which holds files on judgments, national constitutions and the laws governing constitutional courts. While the full text of most decisions is only available in the national language of the deciding court, basic information regarding the case and a short headnote are provided in English. It has been remarked that ‘these publications have proved to play a vital “cross-fertilization” role in constitutional case law’.325 In addition, there is a special closedoff section for constitutional courts known as the ‘Venice Forum’, which allows member courts to enter into direct contact with one another and ask concrete questions, including for the purpose of adjudicating pending cases.326 This mode of interaction seems to be used rather frequently: the annual reports of the Venice Commission mention 30 comparative law research requests in 2011;327 38 requests being made in 2010;328 34 exchanges taking place in 2009;329 and close to 40 questions being asked in 2008.330 Upon request, the Venice Commission also organises conferences, seminars and workshops. Understandably, judges like to share thoughts about institutional and organisational issues – take, for example, judicial independence, the availability of dissenting opinions, access to the court and ways of dealing with individual complaints or the impact of the European integration process.331 In addition, the protection of fundamental rights 324 Statute of the Venice Commission, Art 2. Members serve in their individual capacity and may not receive or accept any instructions. They are usually drawn from (constitutional) courts, academia or national Parliaments and hold their position for renewable four-year periods. 325 See the website of the Venice Commission. The general public also has access to these bulletins and the CODICES database. 326 Judicial interactions through this forum can take place in three different ways: by email, in what is known as the Classic Forum; by means of a sort of noticeboard on which courts can post questions in the Forum Newsgroup; and, as of 2010, via the Venice Monnet web forum, which encourages academic debate on constitutional judgments by members of the Venice Commission, liaison officers of the participating courts and academics. 327 Venice Commission, Annual Report of Activities for 2011, 18 and 55. The issues covered are varied and included the acquisition of nationality, mental illness and hospital detention, EU reverse discrimination, prohibition of foreign military basis and court fees. 328 Venice Commission, Annual Report of Activities for 2010, 59. 329 Venice Commission, Annual Report of Activities for 2009, 60. 330 Venice Commission, Annual Report of Activities for 2008, 31. 331 For instance, the conference on ‘Access to the Court: The Applicant in the Constitutional Jurisdiction’ (Latvia, 2009); the international seminar ‘Guarantees for the Independence of Constitutional Judges’ (Romania, 2006); the seminar on review by the constitutional court of proceedings before the ordinary courts applying

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and ensuring respect for the rule of law also feature prominently as topics for face-to-face meetings between constitutional courts.332 The Venice Commission can further be asked to provide amicus curiae opinions to assist constitutional courts with their decision-making process. Such opinions are meant to provide the requesting court with information from a comparative and/or international perspective, while properly leaving it to the court to determine whether the statute under review comports with the constitution. None of the constitutional courts under study has to date made use of this possibility.333 Finally, the Venice Commission actively collaborates with a number of judicial alliances, both within and outside Europe. This includes the Conference of European Constitutional Courts, which has granted the Venice Commission the status of observer for the purpose of its own gatherings.334 With a view to fostering cooperation among these alliances and their individual members as well as the highest courts of Commonwealth countries, in 2009 the Venice Commission hosted the first World Conference on Constitutional Justice. The final declaration of this conference endorsed the idea of a truly global association of courts engaged in constitutional adjudication. Reference was made to ‘a common concern for the defence of human rights and the rule of law’ and it was observed that in this respect: Mutual inspiration is also increasingly drawn from the case-law of peer Courts of other countries and even continents, which gives rise to cross-fertilisation between the Courts on a worldwide scale. While constitutions differ, the basic principles underlying them, in particular the protection of human rights and human dignity and respect for the Constitution and the rule of law, form a common ground. Legal reasoning in respect of the application of these principles in one country can be a source of inspiration in another country, notwithstanding the differences in their Constitutions. Consequently, the exchange of information and experience between the Courts and Councils should be reinforced on a regional and global basis. The participants of the World Conference endorse and support the regional and linguistic groups [of constitutional courts] and call upon Community law (Slovakia, 2006); the seminar Limits of Constitutional Review of Ordinary Courts’ Decisions in Constitutional Complaint Proceedings (Czech Republic, 2005); the international conference ‘The Position of Constitutional Courts following Integration into the European Union’ (Slovenia, 2004); and the seminar ‘Direct Access to the Constitutional Court’ (Poland, 2000). 332 For instance, the conference on ‘The Rule of Law as a Practical Concept’ (United Kingdom, 2012); the 6th meeting of the Joint Council on Constitutional Justice ‘Mini-Conference on the Principle of Proportionality’ (Italy, 2007); a conference on ‘The Role of the Constitutional Court in the Protection of the Values Enshrined in the Constitution: Experience of the Last Decade and the Prospect for Development in Europe’ (Latvia, 2006); the forum ‘Constitutionalism, the Key to Democracy, Human Rights and the Rule of Law’ (Portugal, 2006); the 5th meeting of the Joint Council on Constitutional Justice, ‘Mini-Conference on Gender Equality’ (Hungary, 2006); workshop on ‘The Role of the Constitution in the Spanish Transition: 25 Years Experience’ (Spain, 2004). 333 The Venice Commission has for instance provided amicus curiae briefs to the constitutional court of Bosnia-Herzegovina (Venice Commission, Opinion 675/2012: Amicus Curiae Brief on the compatibility with human rights standards of certain articles of the law on primary education of the Sarajevo canton of the Federation of Bosnia and Herzegovina (CDL-AD(2012)013, Venice, 15–16 June 2012) and to the Georgian constitutional court (Venice Commission, Opinion 523/2009: Amicus Curiae Brief for the constitutional court of Georgia on the retroactivity of statutes of limitation and the retroactive prevention of the application of a conditional sentence (CDL-AD(2009)012, Venice, 13–14 March 2009). In addition, the president of the Latvian constitutional court asked the Commission for an opinion on proposed amendments to the law governing its composition, procedure and organisation (Venice Commission, Opinion 537/2009 on draft amendments to the law on the constitutional court of Latvia (CDL-AD(2009)042, Venice, 9–10 October 2009). 334 With a view to strengthening cooperation between this Conference and the Venice Commission, the latter was recently asked to submit a report to the upcoming XVIth Congress of the Conference of European Constitutional Courts in 2014, Decision V of the 2012 Circle of Presidents.

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their members to use the tools for exchange of information and experience provided by the Venice Commission, notably the CODICES database and the on-line Venice Forum.335

The participants further called for work to commence on establishing the World Conference as a permanent body. This culminated in the adoption of a statute for the World Conference, which entered into force on 24 September 2011.336 Its principal objective is the promotion of constitutional justice by means of regular congresses uniting its members on a global scale; participation in the activities of regional associations of constitutional courts; encouraging the sharing of experiences and case law; and, by offering good offices upon the request of its members.337 At the time of writing, the constitutional courts of Austria, Belgium, Bulgaria, Germany, Hungary, Italy, Latvia, Lithuania, Portugal, Romania, Slovakia and Spain have acceded to the World Conference, as have the supreme courts of Denmark and Estonia.338

C. Appraising the Move to Cross-Border Judicial Gatherings The proliferation of fora bringing together constitutional courts and allowing them to communicate with one another is a veritable global trend. We have seen that the Conference of European Constitutional Court is of considerable vintage, with the first contacts among constitutional court judges dating back to 1972. In more recent years, similar regional associations have been set up in the Middle East (1997),339 Asia (2010)340 and Africa (2011),341 in addition to the establishment of various language-based groups.342 The latest instalment of this growth of institutionalised cooperation among constitutional courts is the inauguration of the World Conference on Constitutional Justice. Against this backdrop, this section suggests various explanatory factors and raises some questions that may help us to understand and make sense of this phenomenon.343 As a starting point, it is submitted that constitutional judges are arguably not motivated by a single, uniform set of reasons to establish semi-institutionalised fora to build and reinforce relationships with their colleagues in other countries. Also, conferences of constitutional courts – like other types of associations – tend to be dynamic in nature and as they evolve, so too may the incentive to apply for membership. Subject to these caveats, it would appear that many courts (or individual judges) are committed to engaging with their counterparts through the Conference of European Constitutional Courts or the World Conference of Constitutional Justice, or take part in the activities organised by the Venice Commission because they believe that doing so is beneficial for their own reputation and 335 Final Declaration of the World Conference on Constitutional Justice, ‘Influencing Constitutional Justice: its Influence on Society and on Developing a Global Human Rights Jurisprudence’ (Cape Town, 22–24 January 2009). 336 The statute is available at www.venice.coe.int/wccj/statute/2011/CDL-WCCJ(2011)001-e.pdf. 337 Statute of the World Conference on Constitutional Justice, Art 1. 338 Interestingly, the Dutch Council of State (Raad van State) (discussed in ch 1, section II-A) has also acceded to the World Conference. 339 Union of Arab Constitutional Courts and Councils (UACCC). 340 Conference of Asian Constitutional Courts. 341 Conference of Constitutional Jurisdictions of Africa. In addition, there exist the Conference of Constitutional Control Organs of Countries of New Democracy (CCCOCND), the Ibero-American Conference on Constitutional Justice (CIJC) and the group of Commonwealth Courts. 342 Association of Constitutional Courts using the French Language (ACCPUF); Conference of Constitutional Jurisdictions using the Portuguese Language. 343 This section draws on Claes and de Visser, ‘Are You Networked Yet?’ (n 293) 111 ff.

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legitimacy. This may take various forms. It is a fact of life for most constitutional courts that their relationship with the political branches may be tense, as they are inexorably drawn into the political fray and at times have to handle high profile cases. The knowledge that they are not alone in this and an awareness of how other courts have sought to cope with similar situations may be reassuring. Constitutional courts may thus perceive contacts with or information about their counterparts in other jurisdictions as a valuable source of support, helping them to carry out the responsibilities entrusted to them even in the face of (considerable) political or social pressure. They may look to judicial associations as constituting a shared community of like-minded professionals with common beliefs, values and a self-perception and understanding of their role in the legal system. As a matter of fact, concern with judicial independence vis-à-vis other State organs within the domestic sphere has been a factor of considerable influence in the creation of the Conference of European Constitutional Courts and the World Conference on Constitutional Justice. Consider in this vein the mission statement of the Second Congress of the World Conference: The Congress gave the Courts the opportunity to discuss issues relating to their independence in their relations with other state powers, especially on pressure from the executive or the legislative but also at times from the media. The purpose of the Congress was to enable judges to draw inspiration for such situations from their peers in other countries, especially at a time when constitutional justice is in danger in a number of countries. Reference to similar cases in other countries can give an added legitimacy to a judgment. This can be crucial in cases where a judge expects the decision to be disliked by the other state powers. Discussions among judges may provide the moral support necessary to remain faithful to the Constitution even in difficult situations.344

This mission statement also alludes to idea(l)s of convergence: if rulings are seen to fit into a broader body of constitutional case law, this could enhance the legitimacy of these decisions and indirectly also bolster the standing of the authoring court within the national legal order. Relatedly, there seems to be a belief among those involved in organising institutionalised cooperation among constitutional courts that the pressures of globalisation actually require a common judicial approach, notably the development of a global human rights canon.345 Constitutional courts may also be motivated to join international judicial gatherings by a desire to exercise judicial leadership in an increasingly globalised legal envir onment. In particular, they may wish to exert influence in the world of ideas and seek to export domestic solutions to specific constitutional issues beyond the domestic legal order. Further, constitutional courts – notably those in countries in transition – may take part in (or establish) judicial associations for reasons of international profiling and credibility. This may help to reassure foreign investors that the country adheres to the rule of law and that property rights, legitimate expectations and the like will receive proper judicial protection. Similarly, it may help newly minted constitutional courts find their feet, which can have a positive effect on the success of systems of constitutional justice, as one staff member at the Armenian constitutional court explained in describing the rationale for the founding the Conference of Constitutional Control Organs of Countries of Young Democracy346 in 1997: Available at www.venice.coe.int/WCCJ/WCCJ_Rio_E.asp. See the concept for the First Congress of the World Conference on Constitutional Justice, www.venice.coe. int/WCCJ/WCCJ_concept_E.asp. 346 As of 1 March 2011, the Conference was renamed ‘Conference of Constitutional Control Organs of the Countries of New Democracy’. 344 345

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Creation of the mentioned international forum became a crucial factor for the establishment of the system of constitutional justice and its further development in Armenia as well as in all the other member states [Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Russia, Tajikistan, Ukraine, Uzbekistan], since [until] the moment of its foundation none of its members has any serious experience and good practices in the field of constitutional justice and the very existence of this institution significantly contributed to the establishment of constitutional justice in the countries of so called young democracy.347

Incentives aside, there are other factors that seem relevant in explaining the creation and relative success of institutionalised contacts and collaboration among constitutional courts. Take, for example, language: the key documents of the Conference of European Constitutional Courts and the World Conference on Constitutional Justice are available in several authentic languages and, even more importantly, their congresses are multilingual affairs, complete with simultaneous translations.348 This undoubtedly enhances their value for the participating courts. In addition, as alluded to earlier, there exist language-based associations of constitutional courts. These include the Conference of Constitutional Jurisdictions of the Portuguese-speaking Countries,349 of which the Portuguese constitutional court is a founding member, and the Association des Cours Constitutionnelles ayant en Partage l’Usage du Français,350 which brings together constitutional courts from Frenchspeaking jurisdictions around the world and can count the French Conseil constitutionnel and the Belgian, Bulgarian, Romanian and Slovenian constitutional courts among its members. It is obvious that a common language greatly facilitates cooperation, including the dissemination and citation of each other’s judgments.351 Second, technological progress has been a major catalyst in enabling constitutional courts to rapidly exchange information, typically through websites featuring case law portals with advanced search options and member-only intranet facilities. Recall in this respect the importance that the participating courts in the First Congress of the World Conference attribute to the CODICES database and the Venice Forum hosted by the Venice Commission. A third aspect concerns the role of personalities. It is common for only some judges of each participating constitutional court to actively partake in cross-border judicial associations and attend meetings. Among these, specific persons can play a leadership role in an association, for instance because they are personally convinced of the benefits of, and are committed to, establishing institutionalised relationships with their counterparts in other 347 V Vardanyan, ‘Globalizing Constitutional Justice: Responsibility to Cooperate’ (Inaugural Congress of the Association of Asian Constitutional Courts and Equivalent Institutions, Seoul, 20–24 May 2012). 348 The four official languages of the Conference of European Constitutional Courts are French, English, German and Russian (Regulations of the Conference, Art 12). During the triennial congresses, the official language of the host court may also be used with simultaneous translation and each member can request translation into another language at its own expense – an option that the Italian Corte costituzionale and the Spanish Tribunal Constitucional use regularly. The official languages of the World Conference on Constitutional Justice are Arabic, English, French, German, Portuguese, Russian and Spanish (Statute of the World Conference on Constitutional Justice, Art 7). 349 www2.stf.jus.br/cjcplp/cjcplp_home.html. 350 See www.accpuf.org/. 351 It should furthermore be noted that many European constitutional courts provide translations of what they perceive to be their most important or interesting rulings on their websites, thereby facilitating the dissemination of their decisions beyond the domestic legal order and making it easier for their counterparts in other jurisdictions to take cognisance of their activities (which may include referring to such decisions in their own judgments). While English is the preferred choice of language for such translations, French and sometimes also German are used.

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jurisdictions; or because they are great legal minds, thinking of innovative solutions to both old and new constitutional issues. Having such personalities on board might challenge the traditional hegemony of courts in the larger countries: big personalities from small or peripheral jurisdictions can become leaders instead of followers. In this sense, judicial associations may also have a catch-on effect on the practice of citing decisions from other courts, by making smaller jurisdictions that one might not normally refer to more interesting because they expound the more stimulating judicial visions or ideas. In a similar vein, one should realise that judges are also citizens and, as such, are representatives of their countries. This can sometimes give rise to a more ‘political’ dialogue, whereby the communication that takes place is not only about the quality of legal reasoning, but also about what judges want – for instance, advocating a certain way of dealing with a specific constitutional issue. It should be clear that those driving or involved in associations uniting constitutional courts perceive the process of the institutionalisation of communication among such courts in a positive light. Yet, there are also concerns or objections to this phenomenon that deserve to be highlighted. Judges, in our constitutional traditions, speak through the judgments they render. They hide their personality behind their robes, and are not expected to be led by personal beliefs or convictions. They should exercise their mandate independently and derive their authority and legitimacy from the legal texts that they must interpret and uphold. These characteristics, while applicable to all judges, take on additional weight when applied to constitutional courts. Horizontal cross-border cooperation amongst judges may be perceived to offend against traditional notions of a national hierarchy and legal order, at the apex of which stands the national constitution, and judicial independence. Likewise, it has been astutely noted that ‘Judges need to be attuned to the particular context of their national constitution and legal community to function well’352 for both pragmatic and normative reasons, and this attunement might (be seen to) suffer as judges forge stronger links with their colleagues in other jurisdictions, identify with them and conceive of them as important interlocutors. As such, the continuous development of relationships among constitutional courts through semi-institutionalised fora, and all this may entail, can generate feelings of unease or even criticisms akin to those that have been voiced – most prominently in the United States353 – as regards another modality of judicial interaction: the increase in cross-national references in constitutional judgments.354 This is not the place to elaborate the merits of such issues, other than to say that a sound verdict on the legitimacy, appropriateness and usefulness of judicial associations and the work that they do will require empirical research into their impact on the functioning of individual constitutional courts and their case law. This, it can be readily Jackson, Constitutional Engagement in a Transnational Era (n 6) 101. Note that the US Supreme Court is one of the few courts with constitutional jurisdiction that has not attended any of the congresses organised by the World Conference on Constitutional Justice. 354 See, among many others, the contributions by A von Bogdandy, M Rosenfeld, V Jackson, V Perju and G Halmai in M Rosenfeld and A Sajó (eds), Oxford Handbook of Comparative Constitutional Law, Oxford Handbooks in Law (Oxford, Oxford University Press, 2012); C Saunders, ‘Judicial Engagement with Comparative Law’ in Ginsburg and Dixon (eds), Comparative Constitutional Law (n 65); B Markesinis and J Fedtke, ‘The Judge as Comparatist’ (2005) 80 Tulane Law Review 11 and the replies in the same issue; ‘A Conversation between Justice Antonin Scalia and Justice Stephen Breyer: The Relevance of Foreign Legal Materials in US Constitutional Cases’ (2003) 1 International Journal of Constitutional Law 519; F Jacobs, ‘Judicial Dialogue and the Cross-Fertilization of Legal Systems: The European Court of Justice’ (2003) 38 Texas International Law Journal 547; Jackson and Tushnet, Comparative Constitutional Law (n 33) ch 2. 352 353

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acknowledged, is a daunting task, but also one that will become increasingly important since the trend of fostering institutionalised relationships between constitutional courts in different countries shows no signs of abating.

V. INTERACTIONS BETWEEN CONSTITUTIONAL COURTS AND THE COURT OF JUSTICE

Besides their colleagues in other jurisdictions, the Court of Justice of the European Union (CJEU) in Luxembourg is another prominent interlocutor for constitutional courts. Their relationship is the focus of the present section.355 We begin by considering the different ways, formal as well as informal, in which national constitutional courts and the Court of Justice may engage with one another (section A) and then look at some of the main issues that have been the object of their communication (section B). The section concludes with a description of the impact that the case law of the Court of Justice has had on the functioning of the centralised model of constitutional adjudication that we currently find in the great majority of the Member States of the European Union (section C).

A. Avenues for Interaction between Constitutional Courts and the Court of Justice The EU legal order provides for a formal mechanism that enables national constitutional courts to engage in a dialogue356 with the Court of Justice, in the form of the preliminary reference procedure laid down in Article 267 TFEU. It will be recalled that ‘any court or tribunal of a Member State’ may, and sometimes must, consult the Court of Justice on issues related to the interpretation or validity of rules of Union law.357 It would appear that courts with a constitutional mandate (taken to encompass both Kelsenian-type constitutional courts and supreme courts with constitutional jurisdiction) can generally be considered to fall within the personal scope of this treaty provision358 – and in fact, the Court of Justice has so far never declined to accept requests for preliminary rulings referred by such courts. Yet, courts with a constitutional mandate have until now been decidedly reticent to take part in this ‘relationship of active cooperation with the Court of Justice’.359 Only the Austrian, Belgian, Lithuanian and Italian constitutional courts and most recently the Spanish Tribunal Constitucional and the French Conseil constitutionnel have actually asked the Court of Justice 355 It is not possible to exhaustively discuss all the issues relating to the relationship between national constitutional courts and the Court of Justice, taking due account of national constitutional specificities, within the confines of this book: the aim is rather to identify the most salient issues, so that the reader may appreciate the broad picture and general context in which these courts interact. 356 This is a term that has been used by the Court of Justice to describe the interaction between itself and national courts in this context: see eg Case C-2/06 Willy Kempter KG v Hauptzollamt Hamburg-Jonas [2008] ECR I-411, para 42; Case C-210/06 Cartesio Oktató és Szolgátató bt [2008] ECR I-9641, para 91. 357 This procedure is discussed in more detail in ch 3, section IV-B. 358 See M Claes, The National Courts’ Mandate in the European Constitution, Modern Studies in European Law (Oxford, Hart Publishing, 2006) 438–40, 444–51. See also the Opinion of AG Kokott in Case C-169/08 Presidente del Consiglio dei Ministri v Regione autonoma della Sardegna [2009] ECR I-10821, paras 21–23. 359 AG Kokott, Regione autonoma della Sardegna (n 358) para 21.

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for a preliminary ruling.360 The Belgian Cour constitutionnelle has been at the vanguard in this respect. It has the distinction of being the first national court to trigger Article 267 TFEU proceedings (in 1997),361 and to date it remains the most prolific of the European constitutional courts in making references to the Court of Justice. Its website even includes a section entitled ‘preliminary rulings from the Court of Justice’, which features the full text of its own referral decisions, the Court’s preliminary ruling and the final judgments it handed down after receiving the reply from Luxembourg.362 The Italian Corte costituzionale, for its part, had in fact initially decided that it did not qualify as a ‘court or tribunal’ in the sense of Article 267 TFEU.363 In an important ruling from 2008 it reversed its position,364 and is today willing to consult the Court of Justice on matters of EU law that arise in the context of proceedings initiated directly before it.365 In a similar fashion, the Spanish Tribunal Constitucional for a long time asserted that it was for the ordinary courts to refer questions of Union law to the Court of Justice for preliminary ruling,366 but in July 2011 it too had a change of heart and made use of Article 267 TFEU for the first time.367 The latest to jump on the proverbial bandwagon is the French Conseil constitutionnel, which in early April 2013 requested a preliminary ruling from Luxembourg for the very first time.368 It will be interesting to see whether the volte-face of these courts is indicative of, and precursor to, a wider shift in the attitude of constitutional courts vis-à-vis the European preliminary reference procedure.369 360 In addition, the German Bundesverfassungsgericht has in principle accepted that it must make a preliminary reference before being able to use its competence to declare EU acts ultra vires (BverfG, 2 BvR 2661/06 (2010) Honeywell, para 6; see also below). Further, several constitutional courts – including the German Bundesverfassungsgericht and the Czech Ústavní Soud – have interpreted the right to a lawful judge enshrined in their national constitutions as encompassing ordinary courts’ (constitutional) obligation to make use of Art 267 TFEU if the prerequisites for doing so have been met. See eg Germany BVerfG 31, 145 (1971) Alphons Lütticke; BVerfG 82, 159 (1990); 1 BvR 1036/99 (2001). For the Czech Republic judgment see Pl II ÚS 1009/08; Judgment Pl IV ÚS 154/08 of 30 June 2008; Judgment Pl III ÚS 2738/07 of 24 July 2008. 361 The reference was contained in judgment no 6/97 of 19 February 1997 and the Court’s answer can be found in Case C-93/97 Fédération Belge des Chambres Syndicales de Médecins ASBL v Flemish Government, Government of the French Community, Council of Ministers [1998] ECR I-4837. 362 As of 19 March 2013, the Belgian Cour constitutionnelle had sent 20 requests for preliminary rulings. On the proactive and Europe-friendly attitude of the Belgian constitutional court and the two ordinary highest courts, see P Popelier, ‘Judicial Conversations in Multilevel Constitutionalism: The Belgian Case’ in Claes, de Visser, Popelier and van de Heyning (eds), Constitutional Conversations in Europe (n 4). 363 See in particular ordinanza 536/1995 of 15 December 1995. 364 Ordinanza 103/2008 of 13 February 2008. The Corte costituzionale held that another conclusion would mean that ‘the general interest in the uniform application of [Union] law, as interpreted by the Court of Justice of the European [Union] would be harmed’. 365 Conversely, when exercising its jurisdiction to answer preliminary references on issues of constitutional law referred to it by the ordinary courts, the Corte costituzionale holds that it remains the responsibility of these courts to make use of Art 267 TFEU. 366 See particularly sentencia 28/1991 of 14 February 1991; sentencia 372/1993 of 13 December 1993. 367 Case C-399/11 Stefano Melloni v Ministerio Fiscal [2013] ECR I-0000. On this reference, see A Torres Pérez, ‘Spanish Constitutional Court, Constitutional Dialogue on the European Arrest Warrant: The Spanish Constitutional Court Knocking on Luxembourg’s Door’ (2012) 8 European Constitutional Law Review 105. 368 Décision no 2013-314P QPC of 4 April 2013, registered in Luxembourg as Case C-168/13 PPU Jeremy F v Premier ministre [2013] ECR I-0000. Interestingly, the decision to make use of Art 267 TFEU was made in the context of the Conseil constitutionnel deciding on a request for a preliminary ruling on the constitutionality of a legislative provision, submitted to the Conseil constitutionnel by the Cour de cassation. 369 To the extent that this is indeed the case, it will also be worth examining the role, if any, that changes in the EU’s constitutional environment have played in this regard. In particular, since the entry into force of the Lisbon Treaty, the EU legal order comprises a legally binding Charter of Fundamental Rights and Art 4(2) TEU directs the Union to respect the national identities of the Member States ‘inherent in their fundamental structures, political and constitutional’. Both of these changes may trigger constitutional courts to interact directly with the Court of Justice.

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So far, national constitutional courts have mainly engaged with the Court of Justice and its rulings in a rather implicit, informal and indirect manner.370 It is possible to distinguish various ways in which this happens.371 In practice, case law plays a particularly important role as an alternative mode for judicial communication and the exchange of views. First, national constitutional courts and the Court of Justice may use each other’s decisions as a source of inspiration in interpreting and developing standards for assessing the validity of legal norms, as explored in chapter five. Thus, the Belgian, Czech and Polish constitutional courts assign interpretative value to rules of European law and decisions handed down by the Court of Justice in establishing the meaning of the constitutional provisions and principles that serve as grounds for review of national measures; and the Spanish Tribunal Constitucional does so to the extent that these European legal norms guarantee fundamental rights. Following the entry into force of the Lisbon Treaty, the EU has acquired its own written and legally binding catalogue of rights in the form of the Charter of Fundamental Rights, which in all probability will consolidate and further buttress the practice of national constitutional courts to treat rules of Union law as interpretative aids in fleshing out the meaning of national constitutional texts, notably as far as the domestic catalogue of rights and liberties is concerned.372 Whether constitutional courts will explicitly refer to the Court’s case law or to the Charter in their own decisions depends heavily on national traditions of referencing: the German Bundesverfassungsgericht and the UK Supreme Court, for example, have cited judgments handed down by the Court of Justice, whereas the French Conseil constitutionnel has never quoted the European Court in its decisions. Still, even if constitutional courts do not openly engage with European judgments and rules of Union law, these may nonetheless exert an intellectual influence on their case law.373 The Court of Justice, for its part, has recognised common national constitutional traditions, which can be deduced from the decisions of national constitutional courts, as an important source of inspiration in uncovering and defining European fundamental rights.374 This judicial approach has been endorsed by the Charter of Fundamental Rights, which stipulates that insofar as it recognises fundamental rights as they result from the constitutional traditions common to the Member States, an obligation of harmonious interpretation applies.375 That said, it should be acknowledged that the Court of Justice has 370 Giuseppe Martinico speaks of ‘hidden dialogues’ in this respect: G Martinico, ‘Judging in the Multilevel Legal Order: Exploring the Techniques of “Hidden Dialogue” ’ (2010) 21 King’s Law Journal 257; G Martinico and F Fontanelli, ‘The Hidden Dialogue: When Judicial Competitors Collaborate’ (2008) 8 Global Jurist 1. 371 Parts of the following paragraphs draw on De Visser and Claes, ‘Courts United?’ (n 293). 372 Consider in this respect Art 52(3) of the Charter, according to which Charter rights that correspond to ECHR rights must be given the same meaning and scope as that guaranteed under the Convention (although the Union may offer more extensive protection). Many national constitutional courts already use the ECHR and the case law of the European Court of Human Rights as a source of inspiration, and the substantive relationship envisaged between the ECHR and the Charter might make it natural for these courts to refer to both instruments side by side, whenever reliance on non-national norms is considered appropriate. 373 See the observations of a member of the Conseil constitutionnel as regards the important role played by the ECHR and decisions of the European Court of Human Rights in shaping the Conseil’s case law on fundamental rights and freedoms, despite the Conseil not explicitly acknowledging these sources in its rulings: O Dutheillet de Lamothe, ‘L’influence de la cour européenne des droits de l’homme sur le Conseil constitutionnel’, speech on the occasion of a visit of members of the European Court of Human Rights, Paris, 13 February 2009. 374 See especially Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125; Case 4/73 Nold, Kohlen- und Baustoffgroßhandlung v Commission [1974] ECR 491, para 13. For more detail, see ch 5, section XIII. 375 Charter of Fundamental Rights, Art 52(4).

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so far never explicitly engaged with the case law of constitutional courts in its judgments, although its Advocates General do at times cite national judgments in their Opinions.376 Secondly, national constitutional courts and the Court of Justice occasionally send each other ‘messages’ or ‘signals’ in their case law. In particular, several constitutional courts have handed down rulings articulating judicial reservations to the supremacy of EU law and the applicability of Union legal acts within the national legal order. This is sometimes done in response to decisions of the Court of Justice, while at other times national constitutional courts express their position and constitutional sensibilities of their own volition without necessarily expecting an answer from Luxembourg.377 Alongside landmark rulings of the Court of Justice, such national constitutional judgments are part of an important set of judicial exchanges on the relationship between the EU and domestic legal orders, the principles that underlie and frame this relationship, and the interaction between the guardians of these legal orders. Some examples of this practice are examined in section B below. Another means of contact and communication between members of the Court of Justice and judges of national constitutional courts is through personal encounters. As part of its efforts to maintain constant inter-judicial contact, the Court of Justice welcomes delegations of judges of the senior national courts to Luxembourg and also sends its own members to visit individual constitutional and other highest courts in return.378 Such official meetings often have a bilateral character, involving the Court of Justice and a single national highest court (or several national courts from the same country). Constitutional judiciaries usually do not meet each other in Luxembourg.379 In addition, members of the Court of Justice and constitutional judges have occasion to meet and develop personal relationships during the triennial congresses organised by the Conference of European Constitutional Courts,380 as well as during academic conferences and colloquia.381 Such personal contacts and conversations can enhance mutual trust and familiarity among the participating courts and may strengthen a sense of belonging to the epistemic community 376 For an overview of the practice of Advocates General, the Court and the critical reception in the literature of the lack of a (comprehensive) comparative examination of national constitutional provisions, see X Groussot, General Principles of Community Law (Groningen, Europa Law Publishing, 2006) 32 ff. 377 When constitutional courts deliver such rulings, the Court of Justice is typically not the only addressee. Other interlocutors may notably include national political institutions in their capacity as masters of the treaties when negotiating changes to EU primary law and when they partake in the exercise of legislative powers at EU level. 378 See eg press release No 65/12 of the Court of Justice of 15 May 2012, ‘Official Visit of the Court of Justice of the European Union to Romania’. 379 The most notable exception concerned a symposium held at the premises of the Court of Justice on 30–31 March 2009 to which the presidents of the constitutional and supreme courts of the Member States were invited, ‘with the objective of deepening the dialogue with the highest national courts on measures to be considered to improve the efficiency of the preliminary ruling procedure’: see press release No 24/09 of the Court of Justice of 24 March 2009. However, the initiative for such a pan-European judicial discussion on the functioning of Art 267 TFEU came from two networks of national courts, the Association of the Councils of State and Supreme Administrative Jurisdictions of the European Union and the Network of the Presidents of the Supreme Judicial Courts of the European Union, which set up a working group for that purpose. The Court’s initial involvement was limited to sending an observer to this working group. 380 On which, see section IV-A above. 381 On the important role played by national associations of European law and the overarching Fédération International pour le Droit Européen (FIDE) in the initial stages of European integration, see K Alter, ‘Jurist Advocacy Movements in Europe: The Role of Euro-Law Associations in European Integration (1953–75)’ in K Alter, The European Court’s Political Power: Selected Essays (Oxford, Oxford University Press, 2009); A Vauchez, ‘The Making of the European Union’s Constitutional Foundations: The Brokering Role of Legal Entrepreneurs and Networks’ in W Kaiser, B Leucht and M Gehler (eds), Transnational Networks in Regional Integration: Governing Europe 1945–83 (London, Palgrave Macmillan, 2010).

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of ‘European constitutional courts’. This in turn may have a knock-on effect for the impact and incidence of other modes of interaction. The Court of Justice and national constitutional courts can further communicate via the extra-judicial writings of their judges and clerks, many of whom have an academic background and are accordingly used to participating in the scholarly discourse. Such writings are usually published in major law journals and are considered to offer an opportunity to explain their court’s position on a given issue, respond to criticism, or express their view on the case law of their judicial counterparts.382 For instance, members of the Court of Justice have skilfully spread and propagated the constitutionalisation of the European Treaties and the characterisation of the Court as a constitutional court in their extra- judicial writings.383 More recently, they have sought to elucidate the role of general principles of EU law in the Union legal order and refute allegations that the application of those principles has given rise to judicial activism or ‘competence creep’ on the part of the Court of Justice.384 At the national level, several judges of the Bundesverfassungsgericht have similarly donned their academic robes to defend and clarify the Bundesverfassungsgericht’s attitude towards the Court of Justice and the European integration process, as set out in several high profile decisions.385 Aside from affinity with academic scholarship, the extent to which national and European judges enter the academic fray is largely determined by their legal culture and the perceived (in)appropriateness of such extra-judicial writings. Furthermore, (former) judges sometimes also comment on their court’s position or case law in speeches given on special occasions or in newspaper articles.386 In general, it can be observed that the turn by national and European judges to outlets other than their judgments to explain their position or channel their views has become more pronounced in recent years.387 382 To be clear, such articles can also cater to other audiences, in particular academics or, depending on the outlet used, the public at large. 383 See eg B Vesterdorf, ‘A Constitutional Court for the EU?’ (2006) 4 International Journal of Constitutional Law 607; O Due, ‘A Constitutional Court for the European Communities’; F Jacobs, ‘Is the Court of Justice of the European Communities a Constitutional Court?’ in D Curtin and D O’Keeffe (eds), Constitutional Adjudication in European Community and National Law: Essays for the Hon Mr Justice TF O’Higgins (Dublin, Butterworths, 1992); R Lecourt, ‘Quel eut été le droit des communautés sans les arrêts de 1963 et 1964?’ in Mélanges Jean Boulouis: l’europe et le droit (Paris, Dalloz, 1991); A Donner, ‘The Constitutional Powers of the Court of Justice of the European Communities’ (1974) 11 CML Rev 127; G Rodriguez Iglesias, ‘Zur “Verfassung” der Europäischen Gemeinschaft’ (1996) 23 Europäische Grundrechte-Zeitschrift 125; G Slynn, ‘The Court of Justice of the European Communities’ (1984) 33 ICLQ 409; G Mancini, ‘The Making of a Constitution for Europe’ (1989) 26 CML Rev 595; F Schockweiler, ‘Die richterliche Kontrollfunktion: Umfang und Grenzen in Bezug auf den Europäischen Gerichtshof ’ (1995) 30 Europarecht 191. 384 K Lenaerts and J Gutiérrez-Fons, ‘The Constitutional Allocation of Powers and General Principles of EU Law’ (2010) 47 CML Rev 1629 (at the time of writing respectively judge and legal assistant at the Court of Justice). 385 See eg A Voßkuhle, ‘Multilevel Cooperation of the European Constitutional Courts: Der Europäische Verfassungsgerichtsverbund’ (2010) 6 European Constitutional Law Review 175; P Kirchoff, ‘The Balance of Powers between National and European Institutions’ (1999) 3 European Law Journal 225; D Grimm, ‘The European Court of Justice and National Courts: The German Constitutional Perspective after the Maastricht Decision’ (1997) 3 Columbia Journal of European Law 229. The authors were respectively the president and a judge of the Bundesverfassungsgericht when these articles were published. 386 A well-known example is the article by Roman Herzog (former president of the Bundesverfassungsgericht) and Lüder Gerken entitled ‘Stop the European Court of Justice’, first published in Germany in the Frankfurter Allgemeine Zeitung on 8 September 2008 and subsequently published in English on the news website euobserver. com on 10 September 2008. 387 This focuses our attention on a number of important (normative) questions. How should extra-judicial writings be considered in the light of legal certainty, since the explanation or justification for a particular position or line of case law may differ – even if unintentionally and even if only slightly – from the position adopted or arguments articulated in the actual decisions adopted by the bench as a whole? Further, do judges thereby

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B. Topics on which Constitutional Courts and the Court of Justice Interact In what follows, some of the main issues that have been the subject of communication between national constitutional courts and the Court of Justice are briefly explored. When directly entering into a dialogue with the Court of Justice through the preliminary reference procedure, national constitutional courts regularly seek guidance on ‘run-of-themill’ issues of European law which are usually only tangentially linked to what are normally considered to constitute the core of classic constitutional law. For instance, the first references of the Belgian Cour constitutionnelle and the Italian Corte costituzionale concerned, respectively, the interpretation of a directive facilitating the free movement of doctors and mutual recognition of their diplomas388 and the meaning of the treaty provisions governing the freedom to provide services and the prohibition on granting State aid.389 Having said this, constitutional courts have also sent requests for preliminary rulings soliciting the Court of Justice’s view on questions with a stronger constitutional dimension. By way of example, the Cour constitutionnelle has inquired about the compatibility of a provision in a Union legislative measure on gender equality with the fundamental right to non-discrimination, asking the Court to perform its role as a check on the Union’s legislature and uphold fundamental rights – which the latter duly did.390 Likewise, the Spanish Tribunal Constitucional in its first reference sought the Court’s view on the interpretation and validity of the rules governing the European Arrest Warrant in light of the fundamental right to a fair trial.391 The Tribunal Constitucional has also probed the relationship between the European Charter of Fundamental Rights and national rights catalogues, querying whether Member States may offer a higher level of fundamental rights protection under their national constitution than that available under EU law and, where necessary, refrain from unconditionally applying rules of Union law to protect constitutionally guaranteed rights and liberties.392 Yet, as indicated, there is presently a strong preference among constitutional courts in favour of informal channels – notably their own decisions – to engage with the Court of Justice and its case law. This is particularly evident where such channels are used by constitutional courts to set out their own position as regards the relationship between national constitutional provisions and principles and the EU legal order.393 jeopardise their independence and impartiality, as a matter of fact or in the public’s perception? More generally, there appears to be a growing public interest in, and scrutiny of, (constitutional) adjudication and the outcome thereof. As shown in ch 1, section V, the relationship between constitutional courts and the media is similarly changing. 388 Fédération Belge des Chambres Syndicales de Médecins ASBL (n 361). 389 Regione autonoma della Sardegna (n 358). 390 Case C-236/09 Association belge de Consommateurs Test-Achats ASBL v Conseil des ministres [2011] ECR I-773. 391 Melloni (n 367). Several other aspects of the European Arrest Warrant were examined by the Court of Justice in Case C-303/05 Advocaten voor de Wereld VZW v Leden van de Ministerraad [2007] ECR I-3633, following a request for a preliminary ruling emanating from the Belgian Cour constitutionnelle. 392 The Court of Justice answered in the negative, reasoning that to allow a Member State to refrain from applying rules of EU law that comply with the Charter of Fundamental Rights where they would not be in harmony with fundamental rights guaranteed by national constitutions would undermine the primacy of EU law and the effectiveness of EU law within the Member States (Melloni (n 367) paras 56–59). 393 For more detail, see eg Claes, The National Courts’ Mandate in the European Constitution (n 358) notably chs 14–18; A Albi, EU Enlargement and the Constitutions of Central and Eastern Europe (Cambridge: Cambridge University Press, 2005) notably ch 9; A Albi and J Ziller (eds), The European Constitution and National Constitutions: Ratification and Beyond (The Hague, Kluwer, 2007).

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The Court of Justice advances the doctrine of the absolute and unconditional primacy of EU law.394 Weatherill captured the approach propounded by the Court succinctly when he observed that it entails that ‘even the most minor piece of technical Community legislation ranks above the most cherished constitutional norm’.395 Relatedly, the Court of Justice claims judicial Kompetenz-Kompetenz, meaning that it alone is the arbiter of conflicts over the allocation of competences between the EU and the Member States, and hence is exclusively competent to determine whether acts of the EU institutions are ultra vires.396 Constitutional courts generally propound a different understanding of the relationship between European and national constitutional law, asserting that they possess judicial Kompetenz-Kompetenz and proclaiming that they will uphold the core principles and ultimate authority of the national constitution. Most national constitutional courts adhere to the doctrine of relative primacy.397 They recognise that EU law takes precedence over the preponderance of national legal rules – which may include non-fundamental constitutional provisions398 – but insist that there exist certain constitutional reservations to the supremacy of EU law, which may be activated in limited instances. Over the course of the European integration process, such reservations – also known as limits or reserved review powers over EU acts – have been articulated in relation to various elements of the national constitutional order.399 The first domain where national constitutional courts have drawn constitutional lines in the sand is that of fundamental rights. The initiative in this regard was taken by the Italian Corte costituzionale and the German Bundesverfassungsgericht. The former confirmed in its 1973 Frontini decision that it could review the exercise of powers by the European institutions for conformity with certain fundamental principles of the Italian constitutional order

394 Case 6/64 Flaminio Costa v ENEL [1964] ECR 585; the supremacy of EU law over constitutional rules and principles was clearly affirmed in Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125. 395 S Weatherill, Law and Integration in the European Union (Oxford, Oxford University Press, 1995) 106. See eg Case C-285/98 Tanja Kreil v Bundesrepublik Deutschland [2000] ECR I-69 (finding that a European directive on equal treatment precluded the application of a German constitutional provision generally excluding women from military posts involving the use of arms); Case C-462/99 Connect Austria Gesellschaft für Telekommunikation GmbH v Telekom-Control-Kommission and Mobilkom Austria AG [2003] ECR I-5197 (finding that the Austrian supreme administrative court had to disregard a constitutional provision declaring that certain administrative decisions were outside its jurisdiction in order to comply with the right of appeal laid down in a European directive). 396 First asserted in Case 314/85 Foto-Frost v Hauptzollamt Lübeck-Ost [1987] ECR 4199. 397 Estonia seems to be an exception. The Constitutional Review Chamber of the Estonian Supreme Court has indicated that under the current text of the Estonian constitution, EU law enjoys absolute supremacy: ‘within the spheres, which are within the exclusive competence of the European Union or where there is a shared competence with the European Union, the European Union shall apply in the case of a conflict between Estonian legislation, including the Constitution, with the European Union law’ (Opinion 3-4-1-3-06 on the interpretation of the constitution, para 16). 398 The Polish Trybunał Konstytucyjny and the Lithuanian constitutional court do not seem to recognise this possibility and affirm the absolute primacy of all constitutional norms over EU law: see respectively Decision K 18/04 of 11 May 2005 (Poland’s Membership in the European Union: The Accession Treaty), para 13 of the English summary; Joined Cases No 17/02, 24/02, 06/03, 22/04 of 14 March 2006 (On the limitation of the rights of ownership in areas of particular value and in forest land), section III, para 9.4. 399 While the remainder of this subsection discusses these judgments from the perspective of the topics of engagement between constitutional courts and the Court of Justice, it should be appreciated that constitutional courts usually craft such judgments so as to address various audiences, such as the political branches of government, which should not be able to engage in opportunistic behaviour by transferring powers to the EU and thereby avoid having to comply with the constitutional rules and principles to which the exercise of competences at the national level is subjected.

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and the inalienable rights of man.400 In its 1974 Solange I judgment, the Bundesverfassungsgericht similarly proclaimed that it retained jurisdiction to verify whether rules of European law were compatible with the fundamental rights enshrined in the German Basic Law.401 In the event of a conflict, the core principles and rights of the national constitutions would be given precedence. To appreciate these national constitutional decisions, it should be recalled that the rationale for the establishment of the Bundesverfassungsgericht and the Corte costituzionale was intimately linked to democratisation processes and rights thinking; and that both courts were acutely aware of their own role and responsibility to act as guardians of the catalogue of fundamental rights incorporated in the new constitution. At that time, the respect for fundamental rights within the European legal order was, justifiably, not considered to be on a par with the protection of fundamental rights guaranteed within the national constitutional system and an exception to the primacy of EU law was accordingly seen to be required. It is generally understood that the critical reception of its supremacy doctrine by the Corte c ostituzionale and the Bundesverfassungsgericht induced the Court of Justice to develop an unwritten bill of fundamental rights by accepting that such rights were part of the general principles of European law, which it would duly protect against infringements.402 The Bundesverfassungsgericht was mollified by the Court’s response to the constitutional concerns that had been voiced by itself and its Italian colleague. In its Solange II decision of 1986, it recognised the Court of Justice’s efforts in bringing about a structural level of fundamental rights protection within the (then) Community that was ‘substantially similar’ to that required by the Basic Law.403 While it did not renounce its claim to carry out fundamental rights review, the Bundesverfassungsgericht held that so long as (solange) the overall equivalence in protection levels persisted, it would refrain from verifying the compatibility of European legal acts with German fundamental rights in individual cases.404 While the Corte 400 Sentenza 183/73 of 27 December 1973 Frontini Ministero delle Finanze; also sentenza 232/1989 of 21 April 1989 SpA Fragd v Amministrazione delle Finanze. In the Italian legal discourse, limits on the supremacy of EU law are known as controlimiti (counter-limits). 401 BVerfG 37, 271 (1974) Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (Solange I). The constitutional judges concluded: ‘The result is: as long as [solange] the integration process has not progressed so far that Community law also receives a catalogue of fundamental rights decided on by a Parliament and of settled validity, which is adequate in comparison with the catalogue of fundamental rights contained in the Basic Law, a reference by a court in the Federal Republic of Germany to the Bundesverfassungsgericht in judicial review proceedings, following the obtaining of a ruling of the European Court under Art. [267] of the Treaty, is admissible and necessary if the German court regards the rule of Community law which is relevant to its decision as inapplicable in the interpretation given by the European Court, because and in so far as it conflicts with one of the fundamental rights in the Basic Law.’ 402 See notably Internationale Handelsgesellschaft (n 394), discussed in more detail in ch 5, section XIII. The accuracy of this narrative has however been questioned by U Everling, ‘The Maastricht Judgment of the German Federal Constitutional Court and its Significance for the Development of the European Union’ (1994) 14 Yearbook of European Law 1. 403 BVerfG 73, 339 (1986) Wünsche Handelsgesellschaft (Solange II). See also Art 23(1) of the German Basic Law, inserted in 1992, which deals with Germany’s membership of the EU and explicitly states that Germany ‘shall participate in the development of the European Union that . . . guarantees a level of protection of basic rights essentially comparable to that afforded by this Basic Law’. Statements similar to those expressed in the Solange cases can also be found in Decision K 18/04 of the Polish Trybunał Konstytucyjny (n 398): ‘In particular, the norms of the constitution within the field of individual rights and freedoms indicate a minimum and unsurpassable threshold which may not be lowered or questioned as a result of the introduction of Community provisions.’ 404 Confirmed in BVerfG 102, 147 (2000) Bananas III, where the Bundesverfassungsgericht held that it does not require the level of fundamental rights protection to be identical under the Basic Law and under EU law and that it will only become active in reviewing acts of the EU institutions against the fundamental rights enshrined in the Basic Law if the general level of fundamental rights protection guaranteed under EU law falls below the level required by the Basic Law. In more recent German discourse on the relationship between the Bundesverfassungsgericht and the Court of Justice, fundamental rights review is no longer regularly cited as a separate review test or consti-

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costituzionale, for its part, has not qualified its Frontini position in a similar way,405 the actual exercise of the constitutional reservations set out in that judgment has hitherto remained theoretical. The Charter of Fundamental Rights of the EU, which acquired binding force with the entry into force of the Lisbon Treaty, may give a fresh impetus for communication between national constitutional courts and the Court of Justice as regards issues relating to the protection of fundamental rights, including by means of the preliminary reference procedure. We saw earlier that several national courts engage with rules of EU law that give expression to fundamental rights in interpreting rights and liberties protected by national constitutional texts. It is clear that the Charter will be a particularly valuable source of inspiration in this regard, and national constitutional courts may accordingly be motivated to seek the Court of Justice’s guidance on its interpretation through the procedure in Article 267 TFEU. In this regard, it is interesting to consider the approach taken by the Austrian constitutional court, which in early 2012 ruled that the rights guaranteed by the Charter ‘may also be invoked as constitutionally guaranteed rights’ in proceedings before it.406 It thus accepts that it may use the rights included in the Charter as an autonomous standard for assessing the constitutionality of national legal acts in cases falling within the Charter’s scope of application. In doing so, the Austrian court recognises that it may be necessary to ‘refer a matter to the Court of Justice of the European Union for a preliminary ruling if there are doubts on the interpretation of a provision of Union law, including also the Charter of Fundamental Rights’.407 Further, national constitutional courts may also be (more) inclined to engage the Court of Justice through the Article 267 TFEU procedure to convey their reservations about the validity of Union legislative measures, given that the Charter provides additional ammunition for challenging such acts on fundamental rights grounds.408 In this regard, it is important to note that the Union is increasingly active in legal domains with a strong fundamental rights dimension, like criminal or migration law, which makes the need for adequate fundamental rights scrutiny at the European level particularly salient. National constitutional courts, it has been said, have a particularly strong mandate to raise perceived incompatibilities of Union legislative measures with fundamental rights directly with the Court of Justice, in light of their role as prominent fundamental rights guardians at the national level.409 In a similar vein, commending the Belgian Cour constitutionnelle for asking the Court whether the rules governing the European Arrest Warrant infringed the principles of equality and legality, Advocate General Ruiz Colomer expressed the hope that ‘other constitutional courts, which are reluctant to accept their responsibilities as Community courts, will follow [this] example and tutional reservation: see eg G Lübbe-Wolff (judge at the Bundesverfassungsgericht), ‘Who has the Last Word? National and Transnational Courts: Conflict and Cooperation’ (2011) 30 Yearbook of European Law 86. 405 But note that the Corte Costituzionale remarked in sentenza 232/89 of 21 April 1989, SpA Fragd v Amministrazione delle Finanze that ‘It is true that Community law . . . provides an ample and effective system of judicial protection for the rights and interests of individuals’. 406 VfGH Joined Cases U 466/11-18 and U 1836/11-13 of 14 March 2012, para 35. 407 ibid, para 40. 408 This could explain the decision of the Spanish Tribunal Constitucional to submit its first preliminary reference, which amongst other things questioned the compatibility of a provision governing the European Arrest Warrant with the fundamental right to a fair trial. 409 See A Albi, ‘Ironies in Human Rights Protection in the EU: Pre-Accession Conditionality and Post-Accession Conundrums’ (2009) 15 European Law Journal 46, who critically notes that several constitutional courts in central and eastern Europe have so far refrained from questioning the validity of EU legislative measures on fundamental rights grounds and have instead downgraded the level of protection granted to constitutional principles.

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enter into a dialogue with the Court of Justice which is essential for the purpose of building a united Europe’.410 He noted that such a dialogue between Europe’s constitutional courts would permit ‘the foundations to be laid for a general discussion’ on the protection of fundamental rights.411 Finally, Article 53 of the Charter may play an important role in stimulating judicial engagement on questions of fundamental rights. This provision states that the Charter shall not be interpreted ‘as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law . . . and by the Member States’ constitutions’. In a recent case concerning the execution of a European Arrest Warrant (EAW), the Spanish Tribunal Constitucional asked whether Article 53 allows Member States to subject the surrender of a person convicted in absentia to conditions not listed in the EAW rules but derived from national constitutional (case) law, thereby affording the rights to a fair trial and defence more protection than that available under EU law.412 In its ruling in Criminal Proceedings against Stefano Melloni, the Court of Justice answered in the negative. Having found that the relevant European rules were compatible with the rights to a fair trial and defence enshrined in the Charter, it reasoned that the primacy of EU law would be undermined if a Member State could refrain from applying Union rules fully in harmony with the Charter to uphold constitutionally guaranteed rights. This reading of Article 53 is not uncontroversial, as it seems to require constitutional courts413 to refrain from enforcing the higher level of protection afforded to fundamental rights under national constitutional law in cases falling within the scope of the Charter of Fundamental Rights.414 It will be interesting to see how national constitutional courts react to the Court of Justice’s decision in Melloni. It may very well happen that they will seek to persuade the Court – either by sending signals in their case law or through the preliminary reference procedure – to give the rights enshrined in the Charter an interpretation that mirrors or approximates the level of protection granted to similar rights under national constitutional law. At the same time, we cannot exclude the possibility that we will see instances of judicial defiance in the fundamental rights domain over the degree of protection that they wish to guarantee for constitutionally protected rights. 410 Opinion of AG Ruiz-Jarabo Colomer in Case C-303/05 Advocaten voor de Wereld VZW v Leden van de Ministerraad [2007] ECR I-3633, para 28. In several instances, constitutional courts have invalidated national laws implementing EU legislative instruments for breaching fundamental rights, whereby the real cause for concern stemmed not so much from the national implementing act as from the underlying EU instrument. This has occurred, for instance, in relation to European rules on data retention and regarding the European Arrest Warrant. As regards the former, see eg the ruling of the German Bundesverfassungsgericht in BVerfG, 1 BvR 256/08 (2010); Decision no 12581 of October 2009 of the Romanian constitutional court; Judgment Pl ÚS 24/10 of 22 March 2011 of the Czech Ústavní Soud. As regards the latter, see eg Decision P 1/05 of 27 April 2005 of the Polish Trybunał Konstytucyjny; BVerfG, 2BvR 2236/04 (2005) of the German Bundesverfassungsgericht; judgment no 294/2005 of 7 November 2005 of the Supreme Court of Cyprus; Judgment Pl ÚS 66/04 of 3 May 2006 of the Czech Ústavní Soud. 411 Opinion of AG Ruiz-Jarabo Colomer in Advocaten voor de Wereld (n 410), para 81. 412 Melloni (n 367). 413 The same would apply to other State organs tasked with respecting and protecting constitutionally guaranteed fundamental rights and freedoms. 414 In Melloni (n 367), the Court found that the EAW rules reflected a consensus among the Member States as to the scope of protection of the procedural rights of persons convicted in absentia and held that allowing one Member State to deviate from this uniform standard would undermine the principles of mutual trust and recognition on which the EAW regime is based (paras 62–63). It remains to be seen whether the Court will be more accepting of national diversity when the relevant EU legal measure does not reflect such a uniform standard of protection. In his Opinion in Melloni (n 367), AG Bot considered that in such cases, the Member States have more room for manoeuvre (para 127).

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The second domain where constitutional courts have formulated reservations in their case law for the attention of the Court of Justice concerns judicial Kompetenz-Kompetenz. Here too, the Bundesverfassungsgericht has been at the vanguard. In its 1993 Maastricht Urteil, the German court reiterated its Solange position as regards fundamental rights and, in addition, claimed jurisdiction to exercise ultra vires review of legal acts of the EU institutions to ensure that such acts remain within the limits of the competences conferred on them.415 This judgment was seen as a warning to the Court of Justice, which was considered to have condoned ‘competence creep’ on the part of Europe’s political institutions and to have judicially pushed the boundaries of the Union’s competences in its own decisions. The German judges in effect called upon the Court of Justice take the treaty-based limits of the Union’s powers more seriously or risk the Bundesverfassungsgericht declaring acts of the EU institutions inapplicable within Germany. This ultra vires reservation has resonated with other constitutional courts.416 Of those considered in this book, the Polish Trybunał Konstytucyjny and the Czech Ústavní Soud have similarly declared that they can control whether acts of the European institutions, the Court of Justice included, are respectful of the distribution of competences between the Member States and the Union.417 As with the first reservation in the fundamental rights domain, the Bundesverfassungsgericht has to date never found that the Union institutions have actually breached the vertical division of powers.418 In its more recent case law, the Bundesverfassungsgericht has in fact circumscribed the exercise of ultra vires review and hence defused the threat of finding that the Union has in fact exceeded its competences. The German judges clarified that for the allegation that the EU has breached the principle of conferral to be successful, the petitioner must demonstrate that there has been a ‘sufficiently qualified’ transgression of the 415 BVerfG 89, 155 (1993) Maastricht Urteil. The relevant part of the judgment reads as follows: ‘If, for example, European institutions or governmental entities were to implement or to develop the Maastricht Treaty in a manner no longer covered by the Treaty in the form of it upon which the German Act of Consent is based, any legal instrument arising from such activity would not be binding within German territory. German State institutions would be prevented by reasons of constitutional law from applying such instruments in Germany. Accordingly, the Bundesverfassungsgericht must examine the question of whether or not the legal instruments of European institutions and governmental entities may be considered to remain within the limits of the sovereign rights accorded to them, or whether they may be considered to exceed those limits.’ The power to conduct ultra vires review was already alluded to in BVerfG 31, 145 (1971) Lütticke and BVerfG 75, 223 (1987) Kloppenburg. 416 The same can be said for other, related aspects of the Maastricht Urteil, in particular the reliance on the notion of democracy and the idea that there are limits to the powers that a State is constitutionally permitted to transfer to the EU, with the constitutional court as guardian of these limits. The interlocutor of the constitutional court in this respect is not primarily or exclusively the Court of Justice, but rather the national political institutions that negotiate amendments to the existing treaties and decide on the transfer of new competences to the European level. Generally on the cross-border impact of the Maastricht Urteil see eg J Baquero Cruz, ‘The Legacy of the Maastricht-Urteil and the Pluralist Movement’ (2008) 14 European Law Journal 389; C Grabenwarter, ‘National Constitutional Law relating to the European Union’ in A von Bogdandy and J Bast (eds), Principles of European Constitutional Law, rev 2nd edn (Oxford, Hart Publishing, 2010); and, with specific reference to how courts in central and eastern Europe have taken up the ideas in this judgment in their own decisions, W Sadurski, ‘Solange, Chapter 3: Constitutional Courts in Central Europe – Democracy – European Union’ (2008) 14 European Law Journal 1. 417 For the Polish Trybunał Konstytucyjny, Decision K 18/04 (n 398) points 10.3 and 4.5; for the Czech Ústavní Soud, Judgment Pl ÚS 19/08 of 26 November 2008, Treaty of Lisbon I, paras 120, 139 and 216 and Judgment Pl ÚS 29/09 of 3 November 2009, Treaty of Lisbon II, para 150. 418 The first time the Bundesverfassungsgericht actually examined an act of the European institutions was in BVerfG, 2 BvR 2661/06 (2010) Honeywell. At stake was the decision of the Court of Justice in Case C-144/04 Werner Mangold v Rüdiger Helm [2005] ECR I-9981, with the German judges dismissing the ultra vires allegation as unfounded.

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powers attributed to the Union, which means that the contested European act must be ‘manifestly in violation of competences and . . . [be] highly significant in the structure of competences between the Member States and the Union with regard to the principle of conferral and to the binding nature of the statute under the rule of law’.419 When announcing their judicial Kompetenz-Kompetenz reservation, the Polish constitutional tribunal and the Czech constitutional court likewise emphasised that they would only consider the exercise of this control power in exceptional circumstances. To general surprise, in early 2012 the Czech judges threw down the gauntlet and found a decision of the Court of Justice ultra vires. This happened in what is known as the Slovak Pensions saga, a protracted dispute between the Czech constitutional court and the supreme administrative court on special pension increments for Czech citizens for periods of employment with an employer established or resident in Slovakia completed prior to the dissolution of the Czechoslovak federation on 31 December 1992.420 The former court had, in a consistent line of case law, found that the payment of such pension increments was in accordance with constitutional principles.421 Having unsuccessfully expressed its disagreement with the constitutional court’s approach in its own rulings,422 the supreme administrative court in 2009 decided to involve the Court of Justice and referred the question of the compatibility of these increments with EU law to Luxembourg. In its Marie Landtová decision, the Court of Justice held that the payment of a pension increment was as such not precluded by the relevant European rules.423 However, according to the case law of the constitutional court, only Czech nationals residing in the Czech Republic were entitled to claim the impugned pension increments. This approach was condemned by the Court of Justice for being both directly and indirectly discriminatory and hence in breach of fundamental tenets of EU law. Subsequently, in 2012, the constitutional judges were asked to decide a constitutional complaint brought against a judgment of the Czech supreme administrative court applying the Court of Justice’s Landtová ruling.424 After recalling the principles governing the relationship between Czech and European law and its own reserved control powers in this respect, the Czech constitutional court evaluated the Landtová ruling in the light of those safeguards and proclaimed it to be ultra vires: Due to the foregoing, European law . . . cannot be applied to entitlements of citizens of the Czech Republic arising from social security until 31 December 1992; and, based on the principles explicitly stated by the Constitutional Court in judgment file no. Pl. ÚS 18/09, we cannot do otherwise

419 BVerfG, 2 BvR 2661/06 (2010) Honeywell, para 61. See also BVerfG, 2 BvE 2/08 (2009) Lisbon Urteil, para 240 (where the Bundesverfassungsgericht spoke of ‘obvious transgressions’ and cases where ‘legal protection cannot be obtained’ at EU level). In Honeywell, the German court further set out procedural conditions for the exercise of ultra vires review, in addition to tightening the substantive threshold: before being able to decide that an EU act will not applicable in Germany, a preliminary reference should be made to the Court of Justice to enable it to interpret the relevant rules of EU law or assess their validity (para 60). The Bundesverfassungsgericht also stated that it will show ‘respect for the Union’s own methods of justice to which the Court of Justice considers itself to be bound’ and confirmed that the Court of Justice ‘has a right to tolerance of error’ (para 66). On this judgment, see eg M Payandeh, ‘Constitutional Review of EU Law after Honeywell: Contextualising the Relationship between the German Constitutional Court and the EU Court of Justice’ (2011) 48 CML Rev 9. 420 For a more detailed description of this saga, see R Zbíral, ‘Czech Constitutional Court, Judgment of 31 January 2012, Pl ÚS 5/12’ (2012) 49 CML Rev 1475. 421 For the first time in Judgment Pl II ÚS 405/02 of 6 March 2003 and confirmed in eg Judgment Pl ÚS 252/04 of 25 January 2005. 422 See text to nn 281–84 above. 423 Case C-399/09 Marie Landtová v Cˇeská správa socialního zabezpecˇení [2011] ECR I-0000. 424 Judgment Pl ÚS 5/12 of 31 January 2012, Slovak Pensions.

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than state, in connection with the effects of ECJ judgment of 22 June 2011, C-399/09 on analogous cases, that in that case there were excesses on the part of a European Union body, that a situation occurred in which an act by a European body exceeded the powers that the Czech Republic transferred to the European Union under Art. 10a of the Constitution; this exceeded the scope of the transferred powers, and was ultra vires.425

It is not clear at the time of writing what, if any, will be the wider ramifications of the Czech ultra vires decision for the relationship between national constitutional courts and the Court of Justice. Initial academic commentary suggests that it is an ‘isolated accident’ rather than an ‘omen of judicial Armageddon’,426 and that the decision is best seen as part of an internal power struggle between the Czech constitutional court and the supreme administrative court, with the authority of the Court of Justice and EU law as a whole as ‘just collateral damage in [this] judicial war’.427 The latest reservation that constitutional courts have enunciated in relation to Union law is couched in terms of ‘constitutional identity’. To date, the French Conseil constitutionnel,428 the German Bundesverfassungsgericht 429 and the Polish Trybunał Konstytucyjny430 have explicitly used this notion in their decisions to denote the essence of the national constitutional order that must be protected from encroachment by European law.431

425 ibid, under VII. It is interesting to observe that the Czech constitutional court had sent letter explaining its case law to the Court of Justice. This letter was however rejected given that ‘pursuant to established customs, members of the [Court] do not correspond with third persons regarding cases that have been submitted to the Court of Justice’. In Judgment Pl ÚS 5/12 of 31 January 2012 (Slovak Pensions), the Czech constitutional judges denounced this refusal to entertain their letter as ‘abandoning the principle audiatur et altera pars’ (also under VII). 426 Both phrases were used in a blogpost that appeared shortly after the Czech constitutional court delivered its ruling: A Dyevre, ‘Judicial Non-Compliance in a Non-Hierarchical Legal Order: Isolated Accident or Omen of Judicial Armageddon?’ (Verfassungsblog, 29 February 2012). 427 J Komárek, ‘Playing with Matches: The Czech Constitutional Court Declares a Judgment of the Court of Justice Ultra Vires; Judgment of 31 January 2012, Pl ÚS 5/12, Slovak Pensions XVII’ (2012) 8 European Constitutional Law Review 323, 323. Note that the Czech supreme administrative court has made a second reference to the Court of Justice in the wake of the ruling handed down by the Czech constitutional court, asking whether it is under a duty to follow the position of the constitutional court on pension increments, if that view seems to be incompatible with the Court of Justice’s interpretation of EU law: Case C-253/12 JS v Cˇeská správa sociálního zabezpecˇení, filed on 24 May 2012. 428 Décision no 2006-540 DC of 27 July 2006, para 19, confirmed in Décision no 2006-543 DC of 30 November 2006, para 6. See also Décision no 2004-505 DC of 19 November 2004, Treaty establishing a Constitution for Europe, which is considered to involve the application of this notion under national constitutional law avant la lettre and seems to suggest that the principle of laïcité is part of France’s constitutional identity. 429 According to the Bundesverfassungsgericht, Germany’s constitutional identity encompasses the essential elements of the Basic Law as laid down in Art 23(1) third sentence and Art 79(3) of the Basic Law, the so-called Ewigkeitsklausel which prohibits constitutional amendments to the guarantees of human dignity, democracy, the social welfare state, the Rechtstaat, the republican character of the State and the basic characteristics of German federalism. The Ewigkeitsklausel is discussed in more detail in ch 5, section IV. 430 Decision K 32/09 of 24 November 2010, Treaty of Lisbon. According to the Trybunał Konstytucyjny, Poland’s constitutional identity is intimately bound up with notions of sovereignty and independence and is taken to refer to certain ‘inalienable competences of the organs of the State’ which cannot be transferred, encompassing ‘decisions specifying the fundamental principles of the Constitution and decisions concerning the rights of the individual which determine the identity of the state, including, in particular, the requirement of the protection of human dignity and constitutional rights, the principle of statehood, the principle of democratic governance, the principle of a state ruled by law, the principle of social justice, the principle of subsidiarity, as well as the requirement of ensuring better implementation of constitutional values and the prohibition to confer the power to amend the Constitution and the competence to determine competences’ (under point 2.1). 431 While not using the concept of constitutional identity, the Spanish Tribunal Constitucional expressed itself in accordance with the basic idea underlying this notion when articulating constitutional limits to Spain’s participation in the European integration process in déclaracion 1/2004 of 13 December 2004 on the Treaty establishing a Constitution for Europe, notably at FJ 2.

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This reservation as such is not entirely novel.432 The idea that there are core principles or values of national constitutional law that operate as counter-limits to the primacy of EU law was already present in the Corte costituzionale’s Frontini decision and in the pair of Solange judgments and the Maastricht Urteil of the Bundesverfassungsgericht.433 The present recognition (or rediscovery) by national constitutional courts of the power to review whether provisions of EU law impinge on a country’s constitutional identity is often associated with the advent of a similar notion within the Union legal order.434 In particular, Article 4(2) TEU directs the Union to ‘respect the equality of Member States before the treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government’.435 This clause provides the Court with a new legal device to deal with claims made by organs of the Member States that a certain European rule or principle affects their fundamental constitutional and political characteristics, and may induce the Court to accept non-compliance with, or derogations from, the duties otherwise incumbent on Member States and their organs under Union law.436 It has been argued that this may even entail the Court of Justice qualifying or limiting its doctrine of the absolute primacy of EU law in a particular national case.437 Since Article 4(2) TEU is part of Union law, it falls to the Court of Justice – as the guardian and ultimate interpreter of the European Treaties – to decide whether this provision is applicable in a given situation and what this means under Union law. Yet, in so doing, the Court will require input from the national level, including from national constitutional courts, since the European judges cannot determine what should be considered as part of a Member State’s identity that warrants respect and protection within the realm of Union law. As Wendel explains: while national constitutional courts may decide on the content of constitutional identity, the ECJ decides if and to what extent the identity-claim prevails over (hypothetically) conflicting principles of EU law. Seen in this way, Article 4.2 appears as an integration clause on Union-level, ensuring the legal permeability of EU law with regard to national constitutional law. By means of the identity clause, EU law revokes to some extent – and not unlimited – its own claim of primacy within its scope of application. Hence, the task of protecting national constitutional identity is, 432 See eg C Grewe and J Rideau, ‘L’identité constitutionnelle des états membres de l’union européenne: flashback sur le coming-out d’un concept ambigu’ in J-C Piris (ed), Chemins d’europe: mélanges en l’honneur de Jean Paul Jacqué (Paris, Dalloz, 2010). 433 In Solange II (n 403), the Bundesverfassungsgericht mentioned ‘the identity of the prevailing constitutional order of the Federal Republic [of Germany]’ and stated that German institutions were prevented from transferring sovereign powers if this would result in ‘breaking into its [Germany’s] basic framework, that is, into the structure that makes it up’. At the time, it was unclear what according to the Bundesverfassungsgericht was covered by the ‘identity of the prevailing constitutional order’. 434 For an account tracing the genesis of the idea of national (constitutional) identity in European law, see M Claes, Constitutionalising Europe: The Making of European Constitutional Law (Oxford, Hart Publishing, 2014). 435 The predecessors of this clause – Art 6(3) TEU (Amsterdam version) and Art F(1)(1) TEU (Maastricht version) – were not justiciable. 436 The Court has indeed shown its willingness to make allowance for claims based on the need to accommodate (unique) national constitutional provisions and principles when it comes to the application of Union law: see eg Case C-36/02 Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn [2004] ECR I-9609 (accepting that the particular understanding and protection of human dignity under the German Basic Law could justify a restriction on the free movement of goods), and Case C-208/09 Ilonka SaynWittgenstein v Landeshauptmann von Wien [2010] ECR I-13693 (accepting an Austrian law with constitutional status that sought to ensure the formal equality of Austrian citizens by abolishing nobility as a justification for the restriction on the freedom of movement and residence enjoyed by Union citizens). 437 See L Besselink, ‘National and Constitutional Identity before and after Lisbon’ (2010) 6 Utrecht Law Review 36, 47–48; A von Bogdandy and S Schill, ‘Overcoming Absolute Primacy: Respect for National Identity under the Lisbon Treaty’ (2011) 48 CML Rev 1417, 1444–46.

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under EU law, not a task reserved for national courts. It is instead distributed between supra national and national level. In this respect it is important to note that Article 4.2 contains, according to its wording, an obligation for the EU to ‘respect’ the member states’ national identity, not to generally outweigh other principles of EU law against it.438

Academics have suggested that the operationalisation of Article 4(2) TEU in judicial practice would benefit from direct communication between national constitutional courts and the Court of Justice by means of the preliminary reference procedure rather than through case law-based exchanges.439 On a separate note, it should be pointed out that there may be a link between the reservation regarding the primacy of EU law on grounds of national constitutional identity and the residual power relating to the protection of fundamental rights, since the notion of ‘constitutional identity’ may very well be understood to encompass respect for (the essential core of) a fundamental right. For instance, the Bundesverfassungsgericht understands Germany’s constitutional identity to encompass a right to informational privacy, meaning that ‘citizens’ enjoyment of freedom may not be totally recorded and registered’.440 While there may be (significant) overlap between the two, Advocate General Bot has rightly cautioned against eliding the need to uphold constitutionally guaranteed fundamental rights with the requirement to respect the constitutional identity of a Member State.441 In other words, a Member State’s constitutional identity is not ipso facto at stake simply because a case involves questions regarding the protection of national fundamental rights and liberties.

C. The Impact of the Court of Justice’s Case Law on the Position of Constitutional Courts within the Domestic Legal Order The choice of the actor that is primarily entrusted with the task of upholding the constitution and safeguarding constitutional provisions and principles from infringement is one that each national legal system makes for itself. For the countries that belong to the European Union, this choice falls within their constitutional autonomy, in the same way that the area of State design is a matter for the constitutional law and practice of the various Member States.442 European law formally adopts an attitude of indifference in this respect, 438 M Wendel, ‘Lisbon before the Courts: Comparative Perspectives’ (2011) 7 European Constitutional Law Review 96, 135 (emphasis in original). 439 See eg von Bogdandy and Schill, ‘Overcoming Absolute Primacy’ (n 437) 1450–51; M Claes, ‘Negotiating Constitutional Identity, or, Whose Identity is it Anyway?’ and D Thym, ‘Attack or Retreat? Evolving Themes and Strategies of the Judicial Dialogue between the German Constitutional Court and the European Court of Justice’ in Claes, de Visser, Popelier and van de Heyning (eds), Constitutional Conversations in Europe (n 4). National constitutional courts would also have an incentive to do so, since they are otherwise dependent on the government agents before the Court of Justice or the ordinary courts to explain and defend the constitutional case law, which may inadvertently make mistakes or, worse, lack the incentive to acquit themselves well in such a task. Besselink further submits that the Court is ‘more indulgent and tolerant if the national constitutional court has pronounced on the matter [ie the national status and meaning of the constitutional rule or principle]’ in ‘Respecting Constitutional Identity in the EU: Case Note of Ilonka Sayn-Wittgenstein’ (2012) 49 CML Rev 671, 689. 440 BVerfG, 1 BvR 256/08 (2010) Data Retention. 441 Opinion of AG Bot in Melloni (n 367) para 142. 442 See eg Sayn-Wittgenstein (n 436) para 92, where the Court of Justice held that the obligation imposed on the Union by Art 4(2) TEU to respect the national identities of the Member States included respect for the status of a State as a republic.

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and only requires that the choices made by the Member States do not prevent them from complying with their obligations under Union law. Yet in practice, those obligations, particularly those fleshed out in the case law of the Court of Justice, have not left national choices unaffected, including those relating to the institution of constitutional review. In particular, the Court of Justice has handed down several decisions that have had considerable ramifications for the domestic position of constitutional courts and their relationship with the other national courts. This section looks at that body of case law.443 It features, in chronological order, the landmark ruling of the Court of Justice in Amministrazione delle Finanze dello Stato v Simmenthal SpA444 and its progeny in Aziz Melki and Sélim Abdeli,445 Winner Wetten GmbH v Bürgermeisterin der Stadt Bergheim,446 Krzysztof Filipiak v Dyrektor Izby Skarbowej w Paznaniu447 and Jozef Križan v Slovenská inšpekcia životného prostredia.448 In Simmenthal, an Italian undertaking had imported a consignment of meat from France for its signature cured beef in jelly and was charged a fee for veterinary and health inspections of this meat in accordance with Italian legislation. The undertaking disputed the imposition of these charges before the local Italian magistrate, the Pretore di Susa, arguing that they were contrary to the treaty rules on free movement of goods. The Pretore di Susa decided to refer this question to the Court of Justice, which confirmed that there had indeed been a breach of EU law.449 The Pretore di Susa thereupon ordered the Italian finance ministry to refund the fees unlawfully charged. The ministry, however, protested that under Italian constitutional law the Pretore lacked the power to refuse to apply, of its own motion, provisions of national law inconsistent with EU law. Resolving a conflict between rules of EU law and national law was considered the exclusive preserve of the national legislature, which could eliminate the offending measures, and of the Italian Corte costituzionale, which could declare such legislation unconstitutional. In particular, the constitutional court had authored a line of case law holding that Italian legislative provisions violating European law were also in breach of Article 11 of the constitution, which author ises Italy’s participation in international organisations.450 In other words, the issue of a statute’s compatibility with European law was considered a constitutional question and, in keeping with the logic of a centralised model of constitutional adjudication, ordinary judges were accordingly obliged to refer such questions to the Corte costituzionale for determination. The Pretore di Susa was unsure whether the approach under Italian constitutional law could be reconciled with the doctrines of the direct effect and supremacy of EU law, as 443 To be clear, the discussion will be limited to decisions handed down by the Court of Justice that have impacted on the procedures that give access to constitutional courts and on the latter’s powers. It will not include an examination of cases where ordinary courts seek to use EU law and the European preliminary reference procedure to express their disagreement with the constitutional court over substantive issues of constitutional law. For a broader examination of the various challenges that EU law poses to constitutional courts, including those on the substance of the law, see M Bobek, ‘The Impact of the European Mandate of Ordinary Courts on the Position of Constitutional Courts’ in Claes, De Visser, Popelier and van de Heyning (eds), Constitutional Conversations in Europe (n 4). 444 Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 629. 445 Case C-189/10 Proceedings against Aziz Melki and Sélim Abdeli [2010] ECR I-5667. 446 Case C-409/06 Winner Wetten GmbH v Bürgermeisterin der Stadt Bergheim [2010] ECR I-8015. 447 Case C-314/08 Krzysztof Filipiak v Dyrektor Izby Skarbowej w Poznaniu [2009] ECR I-11049. 448 Case C-416/10 Jozef Križan v Slovenská inšpekcia životného prostredia [2013] ECR I-0000. 449 Case 35/76 Simmenthal SpA v Ministero delle Finanze italiano [1976] ECR 1871. 450 See in particular sentenza 232/1975 of 22 October 1975; sentenza 205/1976 of 15 July 1976; ordinanza 206/1976 of 15 July 1976.

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established in Van Gend en Loos451 and Costa v ENEL.452 This was the central question in the Pretore’s second reference to Luxembourg. The Court of Justice was thereby effectively asked to address the judicial enforcement of the doctrines of direct effect and supremacy at the national level. In an ‘emphatic’453 judgment, the Court asserted that all national courts must immediately be able to refuse to apply legislative provisions that are incompatible with EU law. They cannot be required to relinquish responsibility for resolving a conflict between national and European law to the constitutional court or another constitutional authority: 21. It follows from the foregoing that every national court must, in a case within its jurisdiction, apply [EU] law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the [EU] rule. 22. Accordingly any provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of [EU] law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions which might prevent [EU] rules from having full force and effect are incompatible with those requirements which are the very essence of [EU] law. 23. This would be the case in the event of a conflict between a provision of [EU] law and a sub sequent national law if the solution of the conflict were to be reserved for an authority with a discretion of its own, other than the court called upon to apply [EU] law, even if such an impediment to the full effectiveness of [EU] law were only temporary. 24. The first question should therefore be answered to the effect that a national court which is called upon, within the limits of its jurisdiction, to apply provisions of [EU] law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provision by legislative or other constitutional means.

In Simmenthal, the Court of Justice thus declined to endorse the approach adopted by the Corte costituzionale and instead propounded a model of decentralised review for checking the conformity of national law with EU law.454 It is hard to overstate the significance of this judgment for the position of constitutional courts within the national legal order.455 While 451 Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ECR 13. 452 Costa v ENEL (n 394). 453 See N Fennelly, ‘The European Court of Justice and the Doctrine of Supremacy: Van Gend en Loos; Costa v ENEL; Simmenthal’ in M Maduro and L Azoulai (eds), The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Oxford, Hart Publishing, 2010) 44. 454 This was confirmed in Case C-348/89 Mecanarte—Metalúrgica da Lagoa Lda v Chefe do Serviço da Conferência Final da Alfândego do Porto [1991] ECR I-3277, in which a lower Portuguese court asked whether it had jurisdiction under European law to consult the Court of Justice with a view to determining the existence of a possible conflict between national and EU law, after having found that same national rule to be unconstitutional, since findings of unconstitutionality were automatically subject to an appeal to the Portuguese constitutional court. The Court of Justice answered in the affirmative: ‘a national court which in a case concerning [EU] law declares a provision of national law unconstitutional does not lose the right or escape the obligation under Article [267 TFEU] to refer questions to the Court of Justice on the interpretation or validity of [EU] law by reason of the fact that such a declaration is subject to a mandatory reference to the constitutional court’: para 46. 455 Ferreres Comella has argued in favour of some adjustments to the Simmenthal doctrine to reinforce the position of national constitutional courts within the EU legal order: Constitutional Courts & Democratic Values (n 12) ch 11.

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they remain exclusively competent to rule on the constitutional validity of national legislation, every regular judge is today empowered under EU law to examine the compatibility of those same statutes with Union law and refrain from applying the pertinent national legal rules in the event of a conflict. Crucially, there is no need for the regular courts to involve the constitutional court in this process: the former can exercise their ‘Simmenthal mandate’456 on their own authority. While there was initially some resistance to the Court of Justice’s ruling in Simmenthal, most prominently by the Italian Corte costituzionale,457 today it is generally accepted that regular courts possess the competence to disregard domestic legislative provisions in order to give effect to EU law when deciding specific disputes. In countries with a separate constitutional court, the case law of the Court of Justice has therefore brought about the coexistence of a system of centralised review of laws against the constitution with a system of decentralised judicial scrutiny of legislation in light of EU law. This coexistence poses a challenge to the position of constitutional courts within the domestic legal order and may in particular affect their relationship with the regular courts. Consider the following scenario. When adjudicating a specific case, the competent regular court is assailed by doubts as to the validity of the law it should apply in deciding the matter. What is more, the rule or principle that it believes may be violated by the law in question is guaranteed by the national constitution (or a text with equivalent rank or status) as well as protected under EU law. This means that the regular court has a choice. It can classify the defect of the pertinent legal provisions in constitutional terms, which means that it must stay the proceedings and refer the matter to the constitutional court for determination. Alternatively, the regular court can treat the issue as involving a potential conflict between national and European law, which it can resolve on its own authority, where necessary after consulting the Court of Justice by means of the procedure laid down in Article 267 TFEU. It is increasingly likely that such a scenario will materialise, as a result of the expanding substantive scope of EU law in light of the Union’s foray into ever wider areas of the law, including that of fundamental rights. This has rendered the question of the sequence in which regular courts (should) use the domestic and European reference mechanisms more pertinent. For instance, the Italian Corte costituzionale will only decide constitutionality questions referred by the regular courts after the latter have received clarification on (strongly related) European aspects of the case from the Court of Justice.458 A different approach has been adopted in Belgium and France. There, the legislature has intervened to regulate the concurrence of preliminary reference procedures for the benefit of the constitutional court and the constitution. We saw in chapter three that in France, a 2008 constitutional amendment granted the Conseil constitutionnel the power to review the constitutionality of legislation after its promulgation following a request for a preliminary ruling from an ordinary judge.459 Until then, laws that had been abrogated were immune from constitutional scrutiny, but could be assessed for their compatibility with EU law and international agreements by the regular courts (so-called contrôle de conventionnalité). To reinforce the place of the Conseil consti Claes, The National Courts’ Mandate in the European Constitution (n 358) 43. It did not recognise the Simmenthal doctrine until its decision in sentenza 170/1984 of 6 June 1984 (Granital). 458 Ordinanza 165/2004 of 26 May 2004. The Corte costituzionale can decide either to wait for the Court of Justice’s reply or dismiss the request for a preliminary ruling: see ordinanza 536/1995 of 15 December 1995. 459 ch 3, section III-A(ii). 456

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tutionnel at the apex of the domestic legal order and avoid its newly acquired competence being rendered otiose, the French rules prescribe that regular courts must first examine whether they need to initiate the domestic preliminary ruling mechanism to deal with the relevant constitutional issues,460 before moving on to decide on a possible violation of European and international law and where necessary, consulting the Court of Justice under Article 267 TFEU.461 The situation in Belgium was slightly different. Prior to the establishment of the Cour constitutionnelle in 1989 (or Cour d’arbitrage as it was then), the regular courts had already asserted competence to review laws in the light of directly effective provisions of international and European law.462 After 1989, these courts adopted the practice of first dealing with issues pertaining to the constitutionality of the relevant legal provisions by sending preliminary questions to the Cour constitutionnelle, and they would not contradict the latter’s answers when scrutinising, on their own authority, the compatibility of the pertinent legal provisions with international and European law.463 This judicially created working arrangement was initially rather successful in structuring the relationship between the constitutional and the other national courts. However, in 2004, the Belgian Cour de cassation ruptured the peace. It found that when examining the compatibility of legislative provisions with a fundamental right guaranteed by the Belgian constitution and international treaties in an identical or similar way, the ordinary courts – itself included – should decide which of these legal sources provided the greatest protection of the right at stake. Crucially, ‘when the Constitution sets no further requirements than a directly effective treaty provision, a review of the law against the treaty [will be] sufficient and a further review of the law against the Constitution serves no useful purpose’.464 The new approach advocated by the Cour de cassation was liable to compromise the functioning of the system for constitutional adjudication in Belgium. On the one hand, there was a risk that the Cour constitutionnelle would be deprived of a steady supply of preliminary references querying the constitutionality of legislation and would hence be limited in its ability to act as a meaningful check on the various lawmakers in Belgium. On the other hand, the approach suggested by the Cour de cassation would require ordinary judges to decide on the interpretation of the fundamental rights enshrined in the constitution, which is commonly seen as the prerogative of the Cour constitutionnelle. In response, a new paragraph was added to the rules governing the national preliminary reference procedure,465 stating that when a regular court believes 460 The sequence in which arguments of unconstitutionality and arguments based on a violation of inter national or European law should be addressed also finds expression in the official name of the procedure, which is ‘priority preliminary rulings on the issue of constitutionality’ (la question prioritaire de constitutionnalité). 461 Ordinance no 58-1067 on the Constitutional Council (as amended), s 23-2 and 23-5. The provisions entered into force on 1 March 2010, after the Conseil constitutionnel ruled that the new procedure was in harmony with the constitution (Décision no 2009-595 DC of 3 December 2009). An overview of the available French literature commenting on the introduction, design and functioning of this procedure, including its compatibility with EU law, can be found on the Conseil constitutionnel’s website (see the dedicated section on the priority preliminary rulings procedure). 462 Cour de cassation, decision of 27 May 1971, SA Fromagerie franco-suisse Le Ski. 463 For analysis, see A Arts et al, Les rapports entre la Cour d’arbitrage, le pouvoir judiciaire et le Conseil d’État / De verhouding tussen het Arbitragehof, de rechterlijke macht en de Raad van State (Brussels, Die Keure, 2006) ch 2. 464 Cour de cassation, Decision P.04.0644.N of 16 November 2004 under IV.A; Cour de cassation, Decision P.04.0849.N of 9 November 2004. Both decisions are discussed by B Gors, ‘Une cause de refus de renvoi préjudiciel: la primauté de la Convention européenne sur la Constitution’ [2005] Revue belge de droit constitutionnel 507. 465 Special Act on the Constitutional Court, Art 26(4). The content of this provision was earlier discussed during a symposium organised in 2005 by the presidents of the Cour constitutionnelle and the two highest regular courts, on which see Arts et al, Les rapports entre la Cour d’arbitrage, le pouvoir judiciaire et le Conseil d’État (n 463).

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that legislation infringes a fundamental right guaranteed in an analogous way by the constitution and a provision of European or international law, it must as a rule first submit the issue of the law’s constitutionality to the Belgian Cour constitutionnelle.466 In Melki and Abdeli467 and in Chartry,468 the Court of Justice was asked whether the priority afforded by the French and Belgian constitutional frameworks to the use of domestic preliminary reference procedures was acceptable from the perspective of EU law. The Court found that it clearly had no jurisdiction to deliver a preliminary ruling in Chartry, as the case concerned a purely internal situation. Yet, it is worth noting that in its order declaring the request for a reference inadmissible, the Court reiterated the essential points of its Melki and Abdeli ruling.469 That latter ruling came about as a result of a reference made by the French Cour de cassation, which had presented the new preliminary reference procedure in such a way that it seemed inevitable that the Court would conclude that the French system did not pass muster under EU law.470 However, before the Court of Justice delivered its ruling, the Conseil constitutionnel in another, unrelated case rejected the explanation given by the Cour de cassation as misguided, and put forward a different reading of the French system.471 Making explicit reference to this decision and a similar judgment handed down by the French Council of State,472 the Court of Justice declined to hold the new French regime contrary to EU law, because it considered that an interpretation of the pertinent legislative provisions in harmony with the requirements of Union law could not be ruled out.473 The Court thereupon proceeded to list three cumulative conditions that must be met for domestic preliminary reference procedures designed to allow constitutional courts to pronounce on the constitutional validity of domestic legal provisions to be considered compatible with EU law:

466 The Belgian framework also recognises various exceptions to this basic principle, and as such differs from the French system. There is no need for a regular court to consult the Cour constitutionnelle if the claim is inadmissible or lacks jurisdiction; if there already exists constitutional case law concerning the same issue; if it finds that the constitution is manifestly not infringed; and if it follows from a decision of the Cour constitutionnelle or a judgment of an international or European court that the constitution on the one hand or international or European law on the other hand has manifestly been infringed. 467 Melki and Abdeli (n 445). 468 Case C-457/09 Claude Chartry v Belgian State [2011] ECR I-819. 469 For an examination of the Belgian priority system in the light of Melki, 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, de Visser, Popelier and van de Heyning (eds), Constitutional Conversations in Europe (n 4) with more references to literature preceding the Court of Justice’s judgment; P Peeters, ‘The Belgian Constitutional Review Procedure under European Scrutiny’ (2012) 18 European Public Law 411. 470 According to its explanation, the new French system prevented regular courts from using Art 267 TFEU both before initiating the priority preliminary ruling procedure and after the Conseil constitutionnel had decided that the contested law was valid (and there would be no point in using Art 267 TFEU after the Conseil constitutionnel had ruled that the law was unconstitutional and should accordingly be repealed). Underlying this reading of the new procedure was the assumption that the Conseil constitutionnel would not only examine the law referred for scrutiny for its compatibility with the French bloc de constitutionnalité, but also assess its compatibility with European law. As explained in ch 5, section V, the Conseil constitutionnel has however always asserted that it will not review the compatibility of French legislation with EU law and international treaties, because it considers this to be the responsibility of the regular courts. 471 Décision no 2010-603 DC of 12 May 2010, Act pertaining to the opening up to competition and the regulation of online betting and gambling, paras 9–16. 472 Conseil d’État, Decision no 312305 of 14 May 2010. 473 AG Mazák delivered his Opinion before the Conseil constitutionnel and the Council of State had the opportunity to put forward a different interpretation of the new French regime and he accordingly concluded that a system with the features described by the referred court in its reference was incompatible with EU law.

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52. According to the settled case-law of the Court, in order to ensure the primacy of EU law, the functioning of that system of cooperation [established by Article 267 TFEU] requires the national court to be free to refer to the Court of Justice for a preliminary ruling any question that it considers necessary, at whatever stage of the proceedings it considers appropriate, even at the end of an interlocutory procedure for the review of constitutionality. 53. In so far as national law lays down an obligation to initiate an interlocutory procedure for the review of constitutionality, which would prevent the national court from immediately disapplying a national legislative provision which it considers to be contrary to EU law, the functioning of the system established by Article 267 TFEU nevertheless requires that that court be free, first, to adopt any measure necessary to ensure the provisional judicial protection of the rights conferred under the European Union’s legal order and, second, to disapply, at the end of such an interlocutory procedure, that national legislative provision if that court holds it to be contrary to EU law.

With its decision in Melki, the Court of Justice appears to have weakened the basic idea underlying a system of priority preliminary references by insisting that regular courts have the discretion to refer questions to it ‘at whatever stage of the proceedings’ this is considered appropriate.474 While this is understood to include the possibility that the Court of Justice is consulted after the regular court has asked the constitutional court to decide on validity of the pertinent legal provisions, it also encompasses situations where the domestic and European reference procedures are initiated simultaneously; and as a matter of Union law, regular courts should moreover be free to first ask the Court of Justice for guidance, before sending questions concerning a statute’s constitutionality to the constitutional court. To be sure, there may be various reasons why regular courts (and the litigating parties before them!) might prefer to use the domestic preliminary reference procedure:475 it typically provides the requested clarification more quickly than the European procedure and the constitutional court is able to remove the offensive legal rule from the national legal system with erga omnes effects, with attendant benefits for legal certainty, whereas the remedy under EU law consists of the regular court disregarding the offending provision in the specific dispute before it, while its validity formally remains unaffected.476 However, this does not detract from the fact that in Melki and Abdeli, the Court of Justice held that for domestic preliminary reference procedures to comport with EU law, any requirement that regular courts accord priority to questions of constitutionality should be understood as embodying a certain element of discretion on their part rather than as a hard-and-fast obligation. 474 This is in line with earlier case law, notably the decision in Mecanarte (n 454). In that case, the referring court had also asked whether a preliminary reference to the Court of Justice was not superfluous since any defects inherent in the national rule could be remedied within the national legal system, namely by engaging the constitutional court. The Court of Justice held that national courts have a discretion as to whether the initiation of the procedure in Art 267 TFEU is necessary to allow them to give judgment in the case before them, and that this discretion ‘includes a discretion to decide at what stage of the procedure it is appropriate to refer a question to the Court for a preliminary ruling’ (para 48). 475 This is also accepted by the Court of Justice, which recognised in Winner Wetten (n 446) that ‘it might be convenient in certain circumstances for questions of purely national law to be settled at the time the reference is made to the Court’ (para 41). 476 This second reason was in fact invoked by the Italian government in Simmenthal to defend the approach of the Corte costituzionale regarding the review of national law for conformity with European law, and was also relied upon to justify the priority character attributed to the French preliminary reference procedure. However, the difference between the annulment of a national rule and its being set aside may not be all that great in practical terms for cases that fall within the scope of EU law, as all national courts are obliged under EU law to refrain from applying the objectionable rule in all similar cases.

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The coexistence of a system of centralised constitutional adjudication and the empowerment of regular courts to review laws for compatibility with EU law has generated case law issues other than the concurrence of preliminary reference procedures. Another matter on which the Court of Justice has pronounced itself concerns the practice of many constitutional courts of deferring the date on which constitutionally defective legislation loses its binding force, described in chapter six.477 The leading cases in this respect are Filipiak478 and Winner Wetten.479 Both cases raised the same issue. The Polish Trybunał Konstytucyjny and the German Bundesverfassungsgericht, respectively, had found that certain legislative provisions were in breach of the constitution. They had, however, decided to preserve the validity of these provisions for a transitional period in order to give the legislature time to carry out the necessary legislative repairs. During this period, administrative courts in Poland and Germany were called upon to handle disputes that required them to apply the unconstitutional yet still effective legislative provisions.480 Believing those provisions also to be in conflict with EU law, these courts petitioned the Court of Justice for clarification as to whether, under European law, they would be permitted to apply the national provisions until the annulment decisions of their constitutional court took effect. The Court of Justice answered in the negative. It held that a constitutional judgment postponing the date on which legislative provisions lose their binding force does not prevent any (regular) national court from immediately refusing to apply those same provisions because they are contrary to EU law. To justify this holding, it relied on the cardinal principle of the supremacy of EU law. Accordingly, in Winner Wetten, the Court of Justice stated: As for the fact that, once it had made that finding of incompatibility with the Basic Law, the Bundesverfassungsgericht decided . . . to maintain on a temporary basis the effects of the internal legislation . . ., it follows from the case law referred to in paragraphs 53 and 58 of this judgment481 that such a circumstance cannot prevent a national court, which finds that that same legislation infringes directly effective provisions of Union law . . ., from deciding, in accordance with the primacy of Union law, not to apply that legislation in the context of the dispute before it. Rules of national law, even of a constitutional order, cannot be allowed to undermine the unity and effectiveness of Union law.482

The requirement to immediately disregard national legal rules that are incompatible with European law, notwithstanding a ruling of the constitutional court annulling the objection ch 6, section V-B(ii). Filipiak (n 447). 479 Winner Wetten (n 446). 480 In Filipiak, the Polish government unsuccessfully sought to have the reference declared inadmissible by disputing the referring court’s understanding of the constitutional framework. It argued that a decision of the Trybunał Konstytucyjny deferring the loss of the binding force of legislative provisions found to be unconstitutional did not prevent the regular Polish courts from examining those same provisions for their compatibility with EU law and, where necessary, from refusing to apply them. 481 The cases referred to were Simmenthal (n 444); Case C-213/89 R v Secretary of State for Transport, ex parte Factortame Ltd [1990] ECR I-2433; Case C-432/05 Unibet Ltd v Justitiekanslern [2007] ECR I-2271. 482 Winner Wetten (n 446) paras 60–61, internal references omitted. The referring court in that case also asked, more generally, whether it is possible to temporarily suspend the supremacy of EU law to give the national legislature time to bring incompatible laws in line with EU law. The CJEU reserved the right to address this issue at a later stage, confining itself to observing that ‘such a suspension, the conditions of which could be determined solely by the Court of Justice, must be excluded from the outset in this case, having regard to the lack of overriding considerations of legal certainty capable of justifying the suspension’ (para 67). The Member States that intervened in Winner Wetten all argued in favour of such a possibility, relying on the analogous competence that the Court of Justice itself enjoys under Art 264(2) TFEU, on which see ch 6, section V-C. 477 478

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able rules that will soon take effect, pertains to all cases that fall within the ever-expanding scope of EU law. As such, the decisions in Filipiak and Winner Wetten may, in a growing number of cases, effectively limit the usefulness and attractiveness for constitutional courts of preserving the validity of legislation for a transitional period.483 Another recent judgment that warrants attention in this context is the Court’s ruling in Jozef Križan v Slovenská inšpekcia životného prostredia.484 For our purposes, the relevant facts are as follows. Litigation had ensued before the ordinary Slovak courts concerning the observance of the rules governing the participation of the public and the requirements for an environmental impact assessment in support of a permit to establish and operate a landfill site. The Slovak supreme court found that there had indeed been a violation of the relevant legal rules. The permit-holder thereupon lodged a constitutional complaint against this judgment with the Slovak constitutional court, claiming inter alia an interference with its fundamental right to property. The constitutional court upheld the complaint, set aside the contested judgment and remitted the case to the supreme court for a new ruling. Slovak law prescribes that the ordinary court in such an event is under an obligation to heed the constitutional ruling.485 In this case, however, the supreme court stated that it was uncertain about the compatibility of the constitutional court’s ruling with EU law. It therefore decided to ask the Court of Justice whether the procedure in Article 267 TFEU can be used in a situation where a regular court is required to decide a matter remitted by the constitutional court, while at the same time being legally obliged to follow the views expressed by the latter court in the remittance decision. Referring, amongst others, to its judgments in Melki and Winner Wetten, the Court explained that national courts cannot be prevented from sending preliminary questions on issues of Union law in such circumstances and that, crucially, national courts are exempt from following constitutional decisions that they consider to be inconsistent with EU law, in light of the guidance provided in preliminary rulings from Luxembourg: 68. A rule of national law, pursuant to which legal rulings of a higher court bind another national court, cannot take away from the latter court the discretion to refer to the Court of Justice questions of interpretation of the points of European Union law concerned by such legal rulings. . . . 69. At this stage, it must be noted that the national court, having exercised the discretion conferred on it by Article 267 TFEU, is bound, for the purposes of the decision to be given in the main proceedings, by the interpretation of the provisions at issue given by the Court of Justice and must, if necessary, disregard the rulings of the higher court if it considers, in the light of that interpretation, that they are not consistent with European Union law. . . . 70. The principles set out in the previous paragraph apply in the same way to the referring court with regard to the legal position expressed, in the present case in the main proceedings, by the constitutional court of the Member State concerned in so far as it follows from well-established case-law that rules of national law, even of a constitutional order, cannot be allowed to undermine the unity and effectiveness of European Union law. Moreover, the Court of Justice has 483 The European Court of Human Rights, for its part, has recognised that temporarily maintaining the effects of a law found to be in breach of the constitution may be necessary to ensure due respect for the principle of legal certainty and that this practice of constitutional courts accordingly passes muster under the Convention: PB and JS v Austria App no 18984/02 (ECtHR, 22 July 2010) para 49; Walden v Liechtenstein App no 33916/96 (ECtHR, 16 March 2000); JR v Germany App no 22651/93 (Commission Decision, 18 October 1995). 484 Križan (n 448). 485 Act on the Organisation of the Constitutional Court of the Slovak Republic, on the Proceedings before the Constitutional Court and the status of its Judges, Art 56(6).

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already established that those principles apply to relations between a constitutional court and all other national courts. 71. The national rule which obliges the [Slovak supreme court] to follow the legal position of the [Slovak constitutional court] cannot therefore prevent the referring court from submitting a request for a preliminary ruling to the Court of Justice at any point in the proceedings which it judges appropriate, and to set aside, if necessary, the assessments made by the [Slovak constitutional court] which might prove to be contrary to European Union law. (internal references omitted)

This judgment confirms the overriding importance that the Court of Justice attributes to the need to ensure the supremacy, uniformity and effet utile of EU law, even if this comes at the expense of upsetting the organisation of the judicial order in the Member States.486 Indeed, it is clear that this ruling has the potential to detract from the authority that constitutional decisions enjoy before the ordinary courts. Whether this will happen depends, amongst other things, on the willingness of regular judges to examine decisions handed down by the constitutional court for their compatibility with Union law – and this, in turn, is dependent on the applicability and relevance of EU law to the proceedings. For their part, when adjudicating constitutional complaints on their merits, constitutional courts may be induced to dispose of the matter themselves rather than return the case to the ordinary courts (provided the legal rules allow for this), while it may also happen that these courts decide to engage the Court of Justice themselves through Article 267 TFEU before handing down a ruling.487 To conclude, the cases just examined all relate to the procedural supremacy or primacy of EU law, first asserted by the Court of Justice in Simmenthal and robustly defended since then.488 This dimension of the doctrine of supremacy entails that all national courts should disregard national rules of procedure that inhibit them from giving full effect to EU law, including those that regulate their relationship with the other institutions. This means, in particular, that the regular courts should be able to engage in a direct dialogue with the Court of Justice by raising preliminary questions at the moment of their own choosing. It is not acceptable, therefore, to prescribe a prior mandatory reference to the constitutional court to determine the constitutional validity of the contested legal provisions before ordinary courts are able to seek guidance from the Court of Justice to assess whether those same provisions comport with EU law. The regular courts must further be able to determine, on their own authority, the existence of a conflict between national and EU law and 486 A few years prior to its ruling in Križan, the Court had already concluded that lower ordinary courts cannot be required by national procedural law to follow judgments handed down by superior ordinary courts when deciding a case remitted to them if they consider, having regard to the guidance provided by the Court of Justice in a preliminary ruling, that those judgments are incompatible with EU law: see Case C-173/09 Georgi Ivanov Elchinov v Natsionalna zdravnoosiguritelna kasa [2010] ECR I-8889, paras 24–32. The Advocate General in that case had suggested a different approach, arguing that there are other remedies available to ensure the practical effectiveness of EU law that do not involve lower courts disregarding ‘[their] internal hierarchical organisation’ (para 27) and expressing the wish to show respect for ‘the national judicial structure of each Member State, whose design and balance ought not to be altered unnecessarily’ (para 32). 487 For instance, the Spanish Tribunal Constitucional decided to make use of Art 267 TFEU for the first time when examining the merits of a constitutional complaint. On the assumption that the logic of Križan also applies in the context of the national preliminary reference procedure, we can point to the Belgian Cour constitutionnelle and the French Conseil constitutionnel: both courts have accepted the possibility of seeking guidance from the Court of Justice before replying to preliminary questions regarding the constitutionality of a legal norm referred to them by the regular courts. 488 For more general remarks on the various dimensions of supremacy principle, see Claes, The National Courts’ Mandate in the European Constitution (n 358) 98–101.

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immediately take the necessary measures to resolve any such conflicts. They cannot be required to postpone taking remedial action until the expiry of a transitional period during which the relevant national rules, which the constitutional court has found to be in breach of the constitution, remain applicable in order to grant the legislature some reprieve to make the necessary arrangements. Not only are regular courts authorised to ignore the temporal effects of decisions by their constitutional courts, they are also required to disregard the substantive findings of such courts that are contrary to EU law when deciding cases returned to them for a new ruling. In both scenarios, European law weakens the authority of constitutional judgments within the domestic legal order. The cases authored by the Court of Justice are perfectly understandable from a European perspective. The Court is keen to preserve and foster its direct link with national courts through the preliminary reference mechanism, as this procedure is, practically speaking, the principal avenue by which issues of European law submitted to it for consideration. Indeed, many of the fundamental tenets of EU law have been developed in preliminary rulings.489 Moreover, a paramount concern of the Court of Justice has always been to safeguard the effectiveness and uniform application of EU law within the Member States, for reasons of equality and the overall success of European integration. At the same time, it is axiomatic that the judgments discussed in this subsection are decidedly more controversial when one adopts a national constitutional perspective. This is so notably for the Kelsenian constitutional courts that exist in the great majority of Member States, which risk being sidelined by the regular judiciary as regards the determination of constitutional issues that can also be expressed in terms of EU law. A provocative question in this respect is whether the European mandate of the regular courts will in time be the death knell of the centralised system of constitutional adjudication or whether we will see the emergence of a relatively stable and well-functioning judicial partnership between ordinary courts, constitutional judiciaries and the Court of Justice. Much will depend, in this respect, on the behaviour of the Court of Justice and constitutional courts and there is a growing chorus in the academic literature for both to show more respect for each other’s mandate and role so as to bring about a constructive and mutually satisfactory modus vivendi.490

VI. INTERACTIONS BETWEEN NATIONAL HIGHEST AND CONSTITUTIONAL COURTS AND THE EUROPEAN COURT OF HUMAN RIGHTS

This penultimate section is dedicated to a discussion of the interplay between national highest courts, notably constitutional courts, and the European Court of Human Rights (ECtHR). Located in the city of Strasbourg, the ECtHR was established in 1959 as the guardian of the European Convention on Human Rights and, to that end, is competent to rule on individual or State complaints alleging violations of the rights laid down in the Such as the doctrines of direct effect and supremacy, to name the two best-known examples. As such, constitutional courts are frequently urged to participate in direct dialogue with the Court of Justice and make use of the European reference mechanism in order to communicate national constitutional concerns and particularities. The Court of Justice, for its part, is advised to be more forthcoming and accommodating in the way that it engages the substantive constitutional issues highlighted by the national constitutional courts and, from a more procedural perspective, urged to acknowledge the special position that these courts occupy in the domestic legal order and not treat them as any other national court. See, for example, the various contributions in Claes, de Visser, Popelier and van de Heyning, Constitutional Conversations in Europe (n 4). 489 490

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Convention.491 A comprehensive examination of the relationship between the Strasbourg Court and each of the national constitutional (or other highest) courts is beyond the scope of this book.492 The aim of the present section is accordingly more modest: it presents the two principal means by which these courts may engage with one another: through their case law (section A) and through personal encounters (section B).

A. Communication through Case Law To start with, the Convention system does not provide for a formal procedure that forges a direct and institutionalised link between the ECtHR and national (constitutional) courts concerning the interpretation of Convention rights.493 As such, it differs from both the Union legal system and the national judicial orders of many of its Member States which, as we have seen, have established preliminary reference procedures with the aim of allowing regular judges to engage the Court of Justice or the national constitutional court if certain requirements are fulfilled.494 The upshot is that engagements between the Strasbourg Court and national courts are mainly informal affairs, with exchanges for the most part taking place through the decisions that they hand down. As described in an earlier chapter, the great majority of constitutional courts attribute considerable significance to the ECHR and relevant decisions delivered by the Strasbourg Court when exercising the functions bestowed upon them.495 They rely regularly on the Convention as a source of inspiration in establishing the meaning of constitutionally guaranteed rights and freedoms, and some courts even use the ECHR as a standard in its own right when deciding whether domestic legal norms pass constitutional muster. Such an approach is readily understandable: both constitutional courts and the ECtHR are ‘structurally devoted to the protection of fundamental rights against the legislature’496 and there are usually considerable similarities in the content of the catalogues of fundamental rights See also ch 2, section V. For more detail, see eg H Keller and A Stone Sweet (eds), A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford, Oxford University Press, 2008); G Martinico and O Pollicino (eds), The National Judicial Treatment of the ECHR and EU Laws: A Comparative Constitutional Perspective (Groningen, Europa Law Publishing, 2010). The interaction between the European Court of Human Rights and other international courts was the subject of the 2009 annual ‘Dialogue between Judges’ seminar, the proceedings of which are available on the ECtHR’s website. This section refrains from discussing the relationship between the ECtHR and the Court of Justice, including the anticipated accession of the EU to the ECHR. On this, see eg T Lock, ‘EU Accession to the ECHR: Implications for Judicial Review in Strasbourg’ (2010) 35 EL Rev 777; J-P Jacqué, ‘The Accession of the European Union to the European Convention on Human Rights and Fundamental Freedoms’ (2011) 48 CML Rev 995; L Scheeck, ‘Competition, Conflict and Cooperation between European Courts and the Diplomacy of Supranational Judicial Networks’ (2007) GARNET Working Paper No 23/07. 493 The desirability of introducing the possibility for national courts to seek advisory opinions of the ECtHR has been debated, however. See, for instance, the proceedings of the 2012 ‘Dialogue between Judges: How Can We Ensure Greater Involvement of National Courts in the Convention System?’, available on the ECtHR’s website; the Report of the Group of Wise Persons to the Committee of Ministers CM (2006) 203 of 15 November 2006, paras 76–86; and the European Court of Human Rights’ Reflection Paper on the Proposal to Extend the Court’s Advisory Jurisdiction’ adopted in preparation for the High Level Conference on the Future of the European Court of Human Rights in Brighton (UK), 18–20 April 2012. 494 These procedures are discussed in more detail in ch 3, section IV-B and section III-A(ii) respectively. In several countries we also find a preliminary reference procedure within the regular court structure, to enable lower judges to consult the competent supreme court on new questions of law. 495 ch 5. 496 See Ferreres Comella, Constitutional Courts & Democratic Values (n 12) 149. 491 492

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that they must uphold, in part because constitutional drafters in several countries used the Convention as a blueprint in fashioning the domestic Bill of Rights. By incorporating the ECHR and judgments delivered by the Strasbourg judges into their own case law, constitutional courts have been described as ‘taking ownership of it through their rulings’.497 They can thereby refine the precise meaning of the rights enshrined in the Convention and offer views on their application to novel problems and questions.498 This approach may facilitate substantive convergence and contribute to the harmonious development of international and national fundamental rights catalogues.499 From an institutional perspective, it may foster common ground between the guardians charged with protecting each of these catalogues, which in turn is beneficial in stimulating constructive judicial engagement among the various courts. Yet, it can of course also happen that the ECtHR and the highest national court put forward different conceptualisations of the same right, which may generate a case law-based exchange as regards its proper definition. As a matter of procedure, such conflicting positions can come about in several ways.500 Before a case can be validly submitted to the Strasbourg Court, the complainant who alleges a violation of her Convention rights must first have sought (and failed) to obtain redress at the domestic level, usually by petitioning the national courts.501 If a country has established a constitutional complaint procedure that enables individuals to invoke the constitutional court’s jurisdiction to vindicate their fundamental rights that they allege have been violated by the State, the applicant must in principle have filed such a complaint before the ECtHR will entertain taking up her case.502 This means that the Strasbourg Court is confronted with the constitutional court’s assessment of the matter and is in effect asked to determine whether the latter’s judgment (which will have rejected the constitutional complaint in whole or in part) has struck the right balance between two competing rights or adopted the correct definition of the scope of the pertinent fundamental right.

497 J-P Costa, speech given on the occasion of the opening of the judicial year of the European Court of Human Rights’ (Strasbourg, 25 January 2008). 498 For a discussion of the extent to which constitutional and supreme courts in Germany, France and the United Kingdom (should) interpret the rights enshrined in the ECHR in an evolutive fashion and act as leaders in applying and protecting these rights, see E Bjorge, ‘National Supreme Courts and the Development of ECHR Rights’ (2011) 9 International Journal of Constitutional Law 5. 499 But note that the ECHR and the Strasbourg Court in its case law seek to guarantee a minimum standard of fundamental rights protection within Europe and that the States Parties are explicitly allowed to provide a higher level of protection (ECHR, Art 53). This is not always what happens, however: the approach taken by some national courts is to mirror the level of protection required by Strasbourg. 500 For an examination of the impact of the ECtHR’s case law on procedures before constitutional courts, see L Burgorgue-Larsen, ‘L’influence de la Convention européenne sur le fonctionnement des cours constitutionnelles’ (2008) 2 Revue internationale de droit comparé 265. 501 This is the so-called requirement to exhaust all domestic remedies and reflects the subsidiary character of rights protection by the Strasbourg Court (ECHR, Art 35(1)). See eg Akdivar v Turkey App no 21893/93 (ECtHR, 4 April 1998) paras 65–69; Handyside v United Kingdom App no 5493/72 (ECtHR, 7 December 1976) para 48. 502 Denkli v Germany App no 26670/95 (ECtHR, 21 October 1999); Szott-Medynska v Poland App no 47414/99 (ECtHR, 9 October 2003); Wypych v Poland App no 2428/05 (ECtHR, 25 October 2005); Pachla v Poland App no 8812/02 (ECtHR, 8 November 2005). This position of the Strasbourg Court is shared by the great majority of constitutional courts: see A Alen and M Melchior, The Relations between the Constitutional Courts and the Other National Courts, including the Interference in this Area of the Action of the European Courts, General Report for the XIIth Congress of the Conference of European Constitutional Courts (2002), 52. When a constitutional complaint lacks the requisite effectiveness, applicants are not required to institute this procedure as it would be futile, for instance because the constitutional court has held similar complaints to be inadmissible: see Englert v Germany App no 10282/83 (ECtHR, 25 August 1987) paras 32–33.

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Matters are somewhat different as regards the preliminary reference procedure, which enables regular courts to refer questions regarding the validity of the legal rules applicable to the dispute before them to the constitutional court. Since individuals that are party to proceedings before the regular courts cannot oblige the latter to request a preliminary ruling on a law’s constitutionality, the Strasbourg Court does not consider the reference procedure as a remedy that must be exhausted in order for complaints to be admissible.503 At the same time, it will normally be the case that the regular courts which have examined the applicant’s allegation of a violation of her fundamental rights, have done so taking into account any relevant case law of the constitutional court when appropriate. The result is that in such cases, the ECtHR can take cognisance of the position and reasoning of the constitutional court on the meaning of a given right or freedom and may (indirectly) have to decide whether the constitutional doctrine and case law is Convention-compliant. In Roche v United Kingdom, the ECtHR indicated that it normally exercises self-restraint as regards issues that have already been considered and decided by the highest national courts: Where, moreover, the superior national courts have analysed in a comprehensive and convincing manner the precise nature of the impugned restriction, on the basis of the relevant Convention case-law and principles drawn therefrom, this Court would need strong reasons to differ from the conclusion reached by those courts by substituting its own views for those of the national courts on a question of interpretation of domestic law.504

In speeches and extra-judicial writings, presidents of the ECtHR have reiterated the respect that their Court has for rulings handed down by highest national courts, notably constitutional courts.505 Yet, they also recognise that there will be cases where the Strasbourg Court may arrive at an outcome, or offer an interpretation of a fundamental right, different from that proposed by the constitutional or supreme court.506 Such incidences have been defended as flowing from the logic of the Convention system and the role entrusted to the ECtHR: 503 Brozicek v Italy App no 10964/84 (ECtHR, 19 December 1989) para 34; Spadea and Scalabrino v Italy App no 12868/87 (ECtHR, 28 September 1995) paras 23–25; Valkov v Bulgaria App nos 2033/04; 171/05; 19125/04; 19475/04; 19490/04; 19495/04; 2041/05; 24729/04 (ECtHR, 25 October 2011) para 73. 504 Roche v United Kingdom App no 32555/96 (ECtHR, 19 October 2005) para 120; see also MGN Limited v United Kingdom App no 39401/04 (ECtHR, 18 January 2011) para 150. 505 See eg J-P Costa, ‘The Role of the National Authorities, Especially the Courts, and the Future of Human Rights Protection in Europe’ (speech delivered during the conference ‘Problems of Application of the Court’s Case Law in the Legal System of Ukraine’, Kiev, 1 July 2011); N Bratza, ‘The Relationship between the UK Courts and Strasbourg’ (2011) 5 European Human Rights Law Review 505, commenting that in cases where a balance must be sought between competing Convention rights, the Strasbourg Court should be ‘particularly cautious’ about interfering with the way the national court has carried out the balancing exercise if the outcome is ‘on its face reasonable and not arbitrary’. 506 Another example is offered by Vajnai v Hungary App no 33629/06 (ECtHR, 8 July 2008), concerning the Hungarian criminal code’s prohibition on wearing totalitarian symbols in public. When asked about the constitutionality of this prohibition, the Hungarian constitutional court found that it passed muster, having made explicit reference to case law of the Strasbourg Court in its reasoning (Decision 14/2000 of 12 May 2000). When a case involving the application of this prohibition reached Strasbourg, the ECtHR found that the prohibition was overbroad and that there had been a breach of the applicant’s freedom of expression. Recently, in Decision IV/2478/2012 of 19 February 2013, the Hungarian court reversed its initial assessment of the prohibition and held that it was incompatible with the rule of law. It has been argued that the reasons for this reversal must be sought in the political context in Hungary and that the constitutional court sought to demonstrate its allegiance to constitutional justice, in an effort to show that it continues to belong to the European family of (constitutional) courts. See R Uitz, ‘Hungarian Ban of Totalitarian Symbols: The Constitutional Court Speaks Up Again’ (Verfassungsblog, 22 February 2013).

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If the European Court were always to act as a rubber stamp for the decisions of national courts, what purpose would it serve? If the last domestic decision in the case marks the final available domestic remedy, it would lead to the paradoxical situation in which the application would be admissible for having satisfied the rule of exhaustion but at the same time rejected ipse jure as unfounded! Furthermore, it is sometimes the case that the scope or content of rights protected at the national level is not the same as the rights set down in the Convention, as interpreted by the Court.507

In the wake of a decision of the Strasbourg Court with which it disagrees, the national court may reflect on this judgment in its own case law and articulate the reasons why it believes the ECtHR’s decision should be reconsidered or clarified, thereby sending the latter ‘messages’ or ‘signals’. It may believe, for example, that the Strasbourg Court has misunderstood national law or failed to appreciate a specific characteristic of the domestic legal system; likewise, the national judges may have a different view on where the balance should be struck between two competing fundamental rights, both of which are deserving of protection. The position and reasoning of the national court can in turn be considered by the ECtHR in some other case raising the same issue or in the same case when the initial decision was taken by a Chamber and the matter is referred to the Grand Chamber for fresh examination.508 The Strasbourg judges may, upon reflection, agree with those national arguments and sensibilities, and adjust their case law accordingly or explain why they have, on further analysis, decided to reject the views and concerns voiced by the national court. Two examples illustrate how such a case law-based exchange can play out. The first involved the German Bundesverfassungsgericht and the question of where the balance should be struck between the right to private life of Princess Caroline Von Hannover and the freedom of expression of German publishers. Ms Von Hannover is a member of the royal family of Monaco and she had been litigating in the German courts to prevent the publication of photos depicting her private life in the tabloid press. The ordinary courts had all dismissed her claims (with some minor exceptions), arguing that she had to tolerate such publication because she was a ‘figure of contemporary history’. Ms Von Hannover thereupon filed a constitutional complaint with the Bundesverfassungsgericht, alleging a violation of her personality rights. In a landmark judgment, this court sided with Ms Von Hannover regarding photos showing her with her children, but confirmed the decision reached by the ordin ary courts in relation to the other photos (showing her in various scenes from her daily life, eg horseback riding, doing her shopping, eating out and riding a bicycle).509 The Bundesverfassungsgericht reasoned that as a figure of contemporary history, Ms Von Hannover was only entitled to rely on protection of her private life when she was in a secluded place out of the public eye. Dissatisfied with this outcome, Ms Von Hannover subsequently took her case to the ECtHR, arguing that by failing to extend her personality rights to all the photos, the decisions of the German courts – the judgment of the Bundesverfassungsgericht included – infringed her right to respect for her private and family life guaranteed under Article 8 of the Convention. The Strasbourg Court agreed. It found that the reasoning employed by the German courts when balancing the freedom of the press and the protection of personality 507 J-P Costa, ‘On the Legitimacy of European Court of Human Rights Judgments’ (2011) 7 European Constitutional Law Review 173, 182. 508 The option to refer a case to the Grand Chamber is laid down in ECHR, Art 43, which also lists the admissibility conditions: the request must be made within three months of the Chamber’s decision and the case must raise a serious question affecting the interpretation or application of the ECHR or its Protocols, or concern a serious issue of general importance. 509 BVerfG, 1 BvR 653/96 (1999) Princess Caroline of Monaco.

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rights was unjustifiably predisposed towards the former right and that the criteria relied upon were insufficient to protect Ms Von Hannover’s right to privacy: 72. The Court finds it hard to agree with the domestic court’s interpretation of section 23(1) of the Copyright (Arts Domain) Act, which consists in describing a person as such as a figure of contemporary society “par excellence”. Since that definition affords the person very limited protection of their private life or the right to control the use of their image, it could conceivably be appropriate for politicians exercising official functions. However, it cannot be justified for a “private” individual, such as the applicant, in whom the interest of the general public and the press is based solely on her membership of a reigning family, whereas she herself does not exercise any official functions. ... 74. The Court therefore considers that the criteria on which the domestic courts based their decisions were not sufficient to protect the applicant’s private life effectively. As a figure of contemporary society “par excellence” she cannot – in the name of freedom of the press and the public interest – rely on protection of her private life unless she is in a secluded place out of the public eye and, moreover succeeds in proving it (which can be difficult). Where that is not the case, she has to accept that she might be photographed at almost any time, systematically, and that the photos are then very widely disseminated even if, as was the case here, the photos and accom panying articles relate exclusively to details of her private life.510

In its subsequent decision in Görgülü, concerning the definition of the right to private life in a case involving a father seeking to enforce access to his illegitimate son, the Bundesverfassungsgericht for the first time elaborated on the status of the ECHR and Strasbourg case law in the German legal order.511 While its overall approach to this question may be described as supportive or benevolent, the judgment also discusses the possibility of a conflict between the Convention and the Basic Law. Such a conflict, said the Bundesverfassungsgericht, may for instance occur because the extensive interpretation of the right of one party proposed by the Strasbourg Court has the effect of restricting the constitutional protection given to the right of another party. In such situations, it leaves open the possibility for German public authorities and courts not to (fully) heed the decisions handed down by the ECtHR: The Basic Law aims to integrate Germany into the legal community of peaceful and free states, but does not waive the sovereignty contained in the last instance in the German Constitution. There is therefore no contradiction with the aim of commitment to international law if the legislature, exceptionally, does not comply with the law of international agreements, provided this is the only way in which a violation of fundamental principles of the constitution can be averted. . . . If, in concrete application proceedings to which the Federal Republic of Germany is involved, the ECtHR establishes that there has been a violation of the Convention, and if this is a continuing violation, the decision of the ECtHR must be taken into account in the domestic sphere, that is, the responsible authorities or courts must discernibly consider the decision and, if necessary, justify understandably why they nevertheless do not follow the international-law interpretation of the law. . . .

Von Hannover v Germany App no 59320/00 (ECtHR, 24 June 2004). BVerfG, 2 BvR 1481/01 (2004). On the relationship between the German Basic Law on the one hand and the ECHR and the case law of the ECtHR on the other hand, see also BVerfG, 1 BvR 1602/07 (2008) Von Hannover 2; BVerfG, 2 BvR 2365/09 (2011) in particular paras 93–94. 510 511

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In taking into account decisions of the ECtHR, the state bodies must include the effects on the national legal system in their application of the law. This applies in particular with regard to a partial system of domestic law whose legal consequences are balanced and that is intended to achieve an equilibrium between differing fundamental rights. . . . The decisions of the ECtHR may encounter national partial systems of law shaped by a complex system of case-law. In the German legal system, this may happen in particular in family law and the law concerning aliens, and also in the law on the protection of personality (on this, see, recently, ECtHR von Hannover v Germany), in which conflicting fundamental rights are balanced by the creation of groups of cases and graduated legal consequences. It is the task of the domestic courts to integrate a decision of the ECtHR into the relevant partial legal area of the national legal system, because it cannot be the desired result of the international-law basis nor express the will of the ECHR for the ECHR through its decisions itself to undertake directly any necessary adjustments within a domestic partial legal system.512

This part of Görgülü is generally considered a response to the Von Hannover judgment of the ECtHR. Several years later, this Court had to rule on a second complaint made by Ms Von Hannover and her husband, alleging another encroachment upon their right to privacy by the print media. Noting that the ordinary courts had made some changes to their case law in the light of its earlier Von Hannover judgment, which had been endorsed by the Bundesverfassungsgericht,513 the Strasbourg Court now held that it would not substitute its views for the outcome of the balancing exercise between publishers’ freedom of expression and the princess’s right to private life undertaken by the German courts: The Court observes that, in accordance with their case-law, the national courts carefully balanced the right to the publishing companies to freedom of expression against the right of the applicants to respect for their private life. . . . The Court also observes that the national courts explicitly took account of the Court’s relevant caselaw. Whilst the Federal Court of Justice had changed its approach following the Von Hannover judgment, the [Bundesverfassungsgericht], for its part, had not only confirmed that approach, but also undertaken a detailed analysis of the Court’s case-law, in response to the applicants’ complaints that the Federal Court of Justice had disregarded the Convention and the Court’s case-law. In those circumstances, and having regard to the margin of appreciation enjoyed by the national courts when balancing competing interests, the Court concludes that the latter have not failed to comply with their positive obligations under Article 8 of the Convention [enshrining the right to protection of private and family life]. Accordingly, there has not been a violation of that provision.514

In justifying this change in outcome, the Strasbourg Court explicitly noted that the German courts, the Bundesverfassungsgericht included, had revised their case law in the wake of its first Von Hannover judgment, although the European judges were certainly not ignorant of BVerfG, 2 BvR 1481/01 (2004) paras 34, 50, 57 and 58 respectively. BVerfG, 1 BvR 1602/07 (2008) Von Hannover 2. But note para 52 of this judgment, where the Bundesverfassungsgericht reiterated elements of its decision in Görgülü, holding that ‘The guarantees of the Convention and the case-law of the European Court of Human Rights further serve as aids in interpreting the content and scope of fundamental rights at the level of constitutional law, insofar as this does not result in a limitation of or a derogation from the protection offered by any human rights or fundamental freedoms under the Basic Law’. 514 Von Hannover v Germany (No 2) App nos 40660/08 and 60641/08 (ECtHR, 7 February 2012) paras 124–26. The complaints were initially allocated to a Chamber, but, pursuant to ECHR Art 30, the Chamber relinquished jurisdiction in favour of the Grand Chamber, something that happens when a case ‘raises a serious question affecting the interpretation of the Convention or the Protocols thereto’ or ‘where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court’. 512 513

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the somewhat darker signal that the Bundesverfassungsgericht sent in Görgülü and this awareness may well also have influenced the approach adopted. The second example that illustrates how a dialogue through case law can unfold between a national court and the ECtHR concerns the use of hearsay evidence under English criminal law. In Al-Khawaja and Tahery v United Kingdom, delivered in early 2009, a Chamber of the Strasbourg Court found a violation of the right to a fair trial guaranteed by Article 6 of the Convention, because the criminal convictions of the two applicants were solely or decisively based on statements of absent witnesses, which were read at trial.515 Later that same year, a different set of petitioners sought to rely on the ‘sole or decisive test’ propounded in Al-Khawaja before the UK Supreme Court to appeal their convictions, based as they were on hearsay evidence.516 Under section 2 of the Human Rights Act, UK judges are required to ‘take into account’ of judgments of the ECtHR.517 In its judgment in R v Horncastle, the UK Supreme Court however unanimously declined to follow Al-Khawaja, as the judges were convinced that the safeguards offered by the relevant English statutory rules governing the admissibility and use of hearsay evidence would adequately protect against the risk of unfair trial.518 In the opening paragraphs of the main judgment, Lord Phillips expressed the hope for a judicial dialogue with the ECtHR on this issue: [T]he requirement to “take into account” the Strasbourg jurisprudence will normally result in this Court applying principles that are clearly established by the Strasbourg Court. There will, however, be rare occasions where this court has concerns as to whether a decision of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances, it is open to this court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg Court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between this court and the Strasbourg Court. This is such a case.519

In the concluding paragraphs of the judgment, his Lordship repeated this entreaty: I have decided that it would not be right for this court to hold that the sole or decisive test should have been applied rather than the provisions of the 2003 [Criminal Justice] Act . . . I believe that those provisions strike the right balance between the imperative that a trial must be fair and the interests of victims in particular and society in general that a criminal should not be immune 515 Al-Khawaja and Tahery v United Kingdom App nos 26766/05 and 22228/06 (ECtHR, 20 January 2009). In particular, Art 6(3)(d) ECHR guarantees everyone charged with a criminal offence the right ‘to examine or have examined witnesses against him’. 516 R v Michael Horncastle (Appellant) [2009] UKSC 14, involving an appeal from the decision of the Court of Appeal (Criminal Division) in R v Michael Horncastle [2009] EWCA Crim 964. 517 The leading case on the interpretation of section 2 is R (Ullah) v Special Adjudicator [2004] UKHL 26, in particular Lord Bingham’s dictum that the duty of national courts is ‘to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less’. The UK courts have acknowledged that there may be justifications that entitle them to depart from Strasbourg case law, but this is clearly the exception. On the judicial approach to section 2, see eg Kavanagh, Constitutional Review under the UK Human Rights Act (n 100) ch 6; R Masterman, ‘Aspiration or Foundation? The Status of Strasbourg Jurisprudence and the “Convention Rights” in Domestic Law’ in H Fenwick, G Phillipson and R Masterman (eds), Judicial Reasoning under the UK Human Rights Act (Cambridge, Cambridge University Press, 2007). Note also the recent decision of the Court of Appeal in R (On the application of The Children’s Rights Alliance for England) v Secretary of State for Justice [2013] EWCA Civ 34, in which Laws LJ invited the Supreme Court to revisit the Ullah principle and expressed a preference for ‘the development of a municipal jurisprudence of the Convention rights’. 518 Horncastle (n 515). The judges also asserted that there were differences between civil and common law jurisdictions as regards the admissibility of evidence, which cast doubt on the need for the sole and decisive rule in the latter, and argued that the operation of this rule would give rise to practical difficulties. 519 ibid, para 11.

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from conviction where a witness, who had given critical evidence in a statement that can be shown to be reliable, dies or cannot be called to give evidence for some other reasons. In so concluding I have taken careful account of the Strasbourg jurisprudence. I hope that in due course the Strasbourg Court may also take account of the reasons that have led me not to apply the sole or decisive test in this case.520

This opportunity soon presented itself. The UK government asked for the Chamber’s judgment in Al-Khawaja to be referred to the Grand Chamber, which responded favourably to this request in the wake of the Supreme Court’s decision in Horncastle.521 After reiterating the justifications underpinning the sole and decisive test,522 the Grand Chamber found that this rule should not be applied in an ‘inflexible manner’ and without taking account of the ‘specificities of the particular legal system concerned and, in particular its rules of evidence, notwithstanding judicial dicta that may have suggested otherwise’.523 Accordingly, where hearsay statements are the sole or decisive evidence against a defendant, a case-by-case analysis is called for to see whether there are sufficient counterbalancing factors to guarantee a trial in accordance with Article 6 of the Convention. The Grand Chamber found that the English statutory rules in principle incorporated ‘strong safeguards designed to ensure fairness’.524 Several of the judges seized the opportunity to respond explicitly to Lord Phillips’ imploring words about national courts entering into a dialogue with the Strasbourg Court regarding the meaning of the rights and freedoms enshrined in the ECHR. Nicolas Bratza, the United Kingdom judge in Strasbourg at the time, wrote a concurring opinion extolling the virtues of such a dialogue: The present case affords, to my mind, a good example of the judicial dialogue between national courts and the European Court on the application of the Convention to which Lord Phillips was referring. The Horncastle case was decided by the Supreme Court after delivery of the judgment of the Chamber in the present case, to which I was a party, and it was, in part, in order to enable the criticism of that judgment to be examined that the Panel of the Grand Chamber accepted the request of the respondent Government to refer the case to the Grand Chamber. . . . While, as is apparent from the judgment, the Court has not been able to accept all the criticism of the [sole or decisive] test, it has addressed what appears to be one of the central problems identified by the Supreme Court, namely the inflexible application of the test.525 ibid, para 108. The UK government asked for the referral on 16 April 2009 and the Grand Chamber accepted the case in 1 March 2010, some three months after Horncastle, which was decided on 9 December 2009. The UK Supreme Court was undoubtedly aware of the fact that when it was asked to decide the appeal in Horncastle, the request for referral had already been made but was yet to be denied or granted. 522 Namely, first, that the reliability of evidence that appears cogent and convincing may look very different when subjected to a searching examination, and second, that the defendant must not be placed in a position where he is effectively deprived of a real chance to defend himself by challenging the case against him. 523 Al-Khawaja and Tahery v United Kingdom App nos 26766/05 and 22228/06 (ECtHR, Grand Chamber, 15 December 2011) para 146. 524 ibid, para 151. Following an examination of the application of these safeguards to the facts of the two cases, the Grand Chamber found that there were indeed sufficient counterbalancing factors in the trial of Mr Al-Khawaja, but confirmed the Chamber’s conclusion that there had been a breach of Art 6 of the Convention in Mr Tahery’s case. Judges Sajó and Karakaş dissented, holding that there had been a violation of the right to a fair trial in Mr Al-Khawaja’s case as well and generally expressing their disquiet about the weakening of the sole and decisive rule that the majority’s insistence on a counterbalancing approach would bring about and its ramifications for the protection of the defence’s rights. 525 Concurring opinion of Judge Bratza, paras 2 and 3. See also his observations on the Al-Khawaja saga during the solemn hearing of the European Court of Human Rights on the occasion of the opening of the judicial year (2012 ‘Dialogue between Judges’, Strasbourg, 27 January 2012). 520 521

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Similarly, the two dissenting judges began their opinion by recalling the invitation of the UK Supreme Court to reconsider the meaning attributed to Article 6 of the Convention: We were invited by the Supreme Court of the United Kingdom (R v Horncastle) to clarify the principles behind the exclusionary rule in cases where hearsay evidence is the sole or decisive evidence. Such requests, which reflect genuine concerns about, and apparent inconsistencies within, our case-law, deserve due consideration to enable a bona fide dialogue to take place.526

It is interesting to see that both senior national judges and members of the Strasbourg Court have begun to make express reference to the notion of ‘dialogue’ in their rulings as regards the meaning of the Convention, and are candid in acknowledging the importance of inter-judicial communication and debate on fundamental rights questions. These valued exchanges of ideas or opinions on the proper interpretation and application of the Convention are not only conducted through judgments, however: there is also scope for dialogue through personal encounters, to which we now turn.

B. Personal Encounters Beginning in 2005, the ECtHR holds an annual seminar at its premises in Strasbourg on the occasion of the opening of the new judicial year, known as the ‘Dialogue between Judges’. Presidents of constitutional and supreme courts and other senior judicial figures from across Europe are invited to attend these seminars, where they discuss issues of common interest. For instance, the 2012 dialogue addressed the question ‘how to ensure greater involvement of national courts in the Convention system’, the 2011 seminar was dedicated to exploring ‘the limits to the evolutive interpretation of the Convention’, and during the 2008 gathering Strasbourg and national judges focused their attention on ‘the role of consensus in the system of the ECHR’. Each ‘Dialogue between Judges’ follows the same format. A small steering committee within the ECtHR decides on the theme and prepares a background paper to frame the discussion. This paper is circulated to those members of the Strasbourg Court and judges of constitutional or supreme courts that are asked to deliver speeches setting out their views on the selected topic during the actual seminar, after which the floor is opened for discussion and debate among all the participants.527 These seminars have been described as involving ‘communication’ in the substantive sense of the word, with the attending judges engaging in a true exchange of ideas and arguments.528 In addition, members of a single constitutional or supreme court can, and do, visit the ECtHR for working meetings529 and the latter’s president, for his part, regularly pays official visits to the contracting parties to the Convention, which includes meeting with representatives of the highest courts of these countries.530 Besides these encounters under

Joint partly dissenting and partly concurring opinion of judges Sajó and Karakas¸. These speeches from the 2008 seminars onwards are published on the ECtHR’s website, under the general ‘Reports’ section. 528 See M Viliger, ‘The Dialogue of Judges’ in C Hohmann-Dennhardt et al (eds), Festschrift für Renate Jäger: Grundrechte und Solidarität. Durchsetzung und Verfahren (Khel am Rhein, NP Engel, 2011). 529 For instance, in 2012 the Strasbourg Court hosted a delegation of the German Bundesverfassungsgericht and received a visit from the president of the Italian Corte costituzionale. 530 For example, in 2012 the president of the Strasbourg Court attended a meeting with the senior judiciary of the United Kingdom and visited Poland, where he met with the president of the Polish constitutional tribunal. 526 527

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the auspices of the Strasbourg Court, its members and national judges further regularly meet and communicate at academic conferences.531 Such personal contacts foster trust and respect among the respective courts and offer the opportunity to discuss and clarify their case law, clearing up any misunderstandings that may exist. As the then president of the ECtHR remarked in late 2010: Ces rencontres sont très utiles car elles donnent lieu à des échanges, parfois vifs, sur nos jurisprudences respectives. Elles permettent notamment de dissiper les malentendus. Dans mon esprit, elles doivent montres que la Cour européenne des droit de l’homme n’obéit à aucune “volonté de puissance”, mais a l’ambition de jouer pleinement le rôle élevé que les États, certes souverains, lui ont confié.532

His views appear to be shared by judges at the national level, as can be inferred from the speech delivered by Lady Justice Arden on the occasion of the 2010 Dialogue between Judges. She identified various objectives that interaction between the Strasbourg Court and national judges may achieve: There is a great value in personal contact. There can be an enriching exchange of experiences. The informal discussion can also give the national judges an input into the process of developing jurisprudence at the supranational level. In addition, the national judges can explain where the shoe pinches most and how the new jurisprudence can best be absorbed into their own system. Furthermore, I see judicial dialogue of this kind as of constitutional importance in the European legal order. Any supranational court needs to be subject to checks and balances. In the case of the Strasbourg Court, dialogue with the national courts is an important means of providing such checks and balances.533

The sentiment expressed in the last sentence is particularly noteworthy, as it suggests that while national constitutional and other highest courts are subject to an external human rights check in the form of the ECtHR, they in turn may have a role to play in holding the latter to account and, in doing so, help to ensure its institutional legitimacy and that of its rulings. Leaving aside the effectiveness or otherwise of such inter-judicial checks, it is clear that the question of adequate checks and balances on the Strasbourg Court has gained in salience over the years and will in all likelihood continue to galvanise governments and legal scholars alike.534 531 An example is the conference held on 12–13 April 2012 in The Hague, where three (former) members of the European Court of Human Rights and three members of national highest courts were asked to speak on the topic ‘How to Deal with the Criticism of the European Court of Human Rights’. 532 J-P Costa, ‘Le rôle des autorités nationales, notamment judiciaires, et le futur de la protection des droits de l’homme en Europe’ (XIII International Forum on Constitutional Justice, St Petersburg, 18 November 2010). [Translation: ‘These meetings are very useful because they allow for exchanges, sometimes lively, on our respective jurisprudence. They notably enable [us] to dispel misunderstandings. In my mind, they show that the European Court of Human Rights obeys no ‘will to power’, but [has] the ambition to fully play the role that the sovereign States have entrusted to it.’] 533 Speech by Lady Justice Arden during the 2010 Dialogue between Judges on the topic ‘The Convention is yours’ (available on the ECtHR’s website). See also eg Lübbe-Wolff (judge of the Bundesverfassungsgericht), ‘Who Has the Last Word?’ (n 404) notably 95 ff. 534 Relevant factors in this regard are the rapid expansion of the Council of Europe system in the aftermath of the collapse of Communism in central and eastern Europe, which introduced more heterogeneity into the system as there are not insignificant variations in the state of constitutionalism in the various member countries, and the fact that the ECtHR has progressively acquired traits of a constitutional court. These developments are considered by W Sadurski, Constitutionalism and the Enlargement of Europe (New York, Oxford University Press, 2012). See also the reform proposals for the Convention system laid down in the Declaration adopted at the conclusion of the High Level Conference on the Future of the European Court of Human Rights in April 2012 (the so-called Brighton Declaration), which inter alia emphasises the principle of subsidiary fundamental rights protection by the ECtHR and the existence of a margin of appreciation for the states in how they apply and implement the Convention.

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VII. CONCLUDING REMARKS

This chapter has explored selected aspects of the environment within which constitutional courts perform their functions. This was done by looking at their relationship with other institutions within the domestic legal order as well as in a wider European context. In what follows, rather than attempt to summarise the various points made, it seems more useful to conclude with a couple of general observations, highlighting some contemporary developments and challenges that (may) affect the role and performance of European constitutional courts and which may be the fruitful subject of further study. A first observation is that there is a wide array of factors that shape the interplay between constitutional courts on the one hand, and legislatures, the regular judiciary and the European Courts on the other. Some of these are procedural in nature and are largely determined by constitutional or legislative draftsmen. They concern in particular the scope of competences vested in the constitutional court and the rules outlining how its jurisdiction may be invoked and who may do so, which, in turn, strongly influence the court’s ability to enter the fray, pronounce itself on constitutional matters and impose its position on other institutions. Other factors concern techniques of judicial decision-making and, as such, are mainly within the control of the constitutional courts themselves, and yet others pertain to political incentives, the configuration of a country’s socio-economic scene or its national constitutional culture. We have seen that there are several commonalities between the European countries when it comes to the elements that structure and influence the relations between constitutional courts and other institutions. To the extent that this is indeed the case, a comparative perspective may enable us to anticipate which trajectory a certain relationship may follow. At the same time, it should be acknowledged that a fair amount of divergence remains as between the jurisdictions studied in this book: this is quite obviously the case as regards the institutional and political context in which constitutional courts operate, but also holds true for the precise scope of their responsibilities and rules on standing. The upshot is that it does not seem possible to identify or expect a single common pattern or blueprint setting out the relationships between constitutional courts and other institutions in the States that belong to the European Union. Moreover, even within a given country, those relationships are dynamic and subject to change: courts may modify their interpretation of constitutional principles and provisions, their competences may be enlarged or reduced, and political and social realities evolve in response to both domestic and international push and pull factors. Looking at the different kinds of relationships, there has always been a particular interest in the interplay between constitutional courts and the political branches of government. The debate centres largely on the legitimacy of allowing judges to strike down or disregard legislation and other acts enacted by popularly elected representatives, and the potential of constitutional courts to produce legal norms that must be heeded by all other organs of the State. One of the central issues in this discourse is that of judicial finality, which denotes that the court’s statements on constitutional issues – notably including the permissibility of legislation – are final and conclusive. This chapter has engaged with the question of judicial finality by considering various ways in which the political institutions can react to constitutional judgments. It was shown that in the different European countries, the firm response of amending the constitution to overturn the court’s determinations is largely devoid of practical relevance, with the political branches only sporadically having recourse

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to the process of constitutional revision to qualify constitutional judgments.535 At the same time, there are other, more gentle, ways in which the latter may nudge the constitutional court to change its interpretation of a given constitutional provision or principle. An important issue that deserves greater attention in this context concerns the frequency and success of processes of ‘give-and-take’ in the various European countries. Constitutional jurists may be interested to see whether it is possible to identify factors that determine the likelihood of such processes taking place and actually yielding a working compromise between what the legislature wants to achieve and what the judges consider to be permissible under the constitution. These could include the systematic examination of constitutional judgments by Parliament or one of its committees; the degree of fragmentation of the political scene; the latitude the judges give to the political institutions to achieve a certain objective or implement a specific policy choice; the passage of a certain period of time; or the political salience of the constitutional issue at stake, to name but a few. As a matter of constitutional reality, the notion of ‘final authority’ may thus be a legal fiction, because the court’s pronouncement on a constitutional issue is hardly ever absolutely and irrevocably final: the constitutional question can usually be put back on the table. As such, we are likely to see a continued, if not growing, interest in the complex relationship between constitutional courts and legislatures, including the issue of who has the last word on constitutional matters, as the former are increasingly asked to deal with novel and contested constitutional issues such as the permissibility of measures to cope with the financial crisis or where the balance should be struck between respect for religious freedom and public safety.536 This chapter has also considered the relationship between constitutional and the other national courts. Of particular note is the presence of devolutionary or decentralising pressures. The origins of such pressures are in part domestic. Against the backdrop of the process of the constitutionalisation of the entire legal order, regular courts are expected to take account of constitutional provisions or principles when they interpret and apply statutory law, including reading legislative provisions in harmony with the national constitutional framework. Through their case law, constitutional courts may effectively expand the constitutional mandate of the regular judges, for instance by extending the reach of constitutional rules and principles within the realm of ordinary law, in particular by insisting that regular judges must seek to construe the applicable legislation in a way that comports with the constitution before their request for a preliminary ruling will be admissible. Several constitutional courts thus in effect choose to devolve part of their responsibility for ensuring the integrity and supremacy of the constitutional framework to the regular judiciary. In addition, the Court of Justice has been another powerful catalyst in generating decentralising pressures. Its Simmenthal ruling and judicial offspring have empowered regular courts to set aside acts of parliament that they consider to be incompatible with Union law and disregard national procedural rules that prevent them from immediately ensuring the effet utile of EU law, 535 Although the recent spate of constitutional modifications in Hungary, including those qualifying decisions handed down by the constitutional court, may signal that this country could become the exception to the rule. 536 There seems to be a fledgling academic discourse calling for a more critical examination of the legitimacy of constitutional courts: see eg M Jestaedt, O Lepsius, C Möllers and C Schönberger, Das entgrenzte Gericht: Eine kritische Bilanz nach sechzig Jahren (Berlin, Suhrkamp, 2011); W Sadurski, ‘Constitutional Justice, East and West: Introduction’ in Sadurski (ed), Constitutional Justice, East and West (n 163). Constitutional courts also seem aware of the issue, as arguably evidenced by the fact that the topics selected for the most recent gatherings of the Conference of European Constitutional Courts and the World Conference on Constitutional Justice focused on their relationship with the political branches of government.

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including those that regulate their relationship with the constitutional court. The result is the – partial – dilution of the centralised model of constitutional adjudication as Kelsen traditionally conceived of it. As and when such devolutionary pressures increase in the future, we may witness the emergence of more hybrid or mixed systems of constitutional justice. Such a development would be particularly fascinating from a European perspective, since the Union judicial order at present may also be characterised as a hybrid order, in the sense that it is not the sole responsibility of the Court of Justice to ensure that the other EU institutions and Member States comply with the Union’s constitutional charter: the performance of this task is shared with the national courts, which have been given an important role in enforcing this same standard against national legislatures and executives.537 One final contemporary trend that is worth noting concerns the proliferation of contact and engagement among constitutional judges in different jurisdictions and with members of the Court of Justice and the ECtHR. Constitutional and European courts increasingly appear to act as each other’s interlocutors and may even (claim to) have a role to play in reinforcing each other’s authority and keeping each other in check. It would be interesting to study the potential impact (if any) of institutionalised judicial associations like the Conference of European Constitutional Courts or the World Conference on Constitutional Justice in this regard, and also engage with the more normative question of how to appraise the socialisation process associated with belonging to a ‘constitutional justice’ club in light of the need for independence of judges vis-à-vis each other.538 Changing the perspective somewhat, it is clear that in the contemporary arrangements for constitutional review in many European countries, judges play an important role as drivers of convergence in the making of a common constitutional law in Europe. They regularly consider norms and judgments handed down by their peers in other legal orders in deciding on the meaning of the national constitutional framework and, conversely, they may export home-grown constitutional approaches through translations of their decisions and personal contact. On other occasions, judges’ mandate as chief protectors of the constitution may require them to act as proverbial guardians at the gate, in order to ensure respect for and safeguard their country’s constitutional sensibilities or unique identity. To conclude, the spectacular rise of constitutional justice has been one of the most prominent constitutional trends in twentieth-century Europe. In particular, in many countries within the European Union, Kelsenian constitutional courts have emerged as the preferred institutions to ensure that the normative supremacy of constitutional rules and principles is put into practice. Time will tell whether the twenty-first century will bring further ‘waves’539 of constitutional justice and the consolidation of a strong form of constitutional adjudication (either in a centralised or more mixed form) in the countries within the EU and the Union itself, or whether the pendulum will swing back somewhat and we will see a more prominent role for non-judicial institutions in ensuring that constitutions, their values and principles are duly respected. 537 The Court of Justice may also be considered hybrid in that it combines the function of deciding constitutional issues with responsibility for guaranteeing the uniform interpretation of the law. As such, the judicial arrangement in place in the EU resembles that in Cyprus or Estonia, where the ordinary highest courts are ultimately entrusted with guaranteeing the uniform interpretation of non-constitutional legislation and are also at final (or only) instance competent to decide constitutional issues, notably pronouncing on the constitutionality of legislation. 538 Vicki Jackson speaks of a ‘norm of intrajudicial independence’ in this regard: Constitutional Engagement in a Transnational Era (n 6) 100. 539 L Favoreu, Les cours constitutionnelles, 3rd edn (Paris, Presses Universitaires de France, 1996) 4.

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Walker, N, ‘The Migration of Constitutional Ideas and the Migration of the Constitutional Idea: The Case of the EU’ in S Choudhry (ed), The Migration of Constitutional Ideas (Cambridge, Cambridge University Press, 2006) ——, ‘Beyond Boundary Disputes and the Basic Grids: Mapping the Global Disorder of Normative Orders’ (2008) 6 International Journal of Constitutional Law 373 Walther, S, ‘Thou Shalt Not (But Thou Mayest): Abortion after the German Constitutional Court’s 1993 Landmark Decision’ (1993) 36 German Yearbook of International Law 385 Weatherill, S, ‘Pre-Emption, Harmonisation and the Distribution of Competence to Regulate the Internal Market’ in C Barnard and J Scott (eds), The Law of the Single European Market: Unpacking the Premises (Oxford, Hart Publishing, 2002) ——, ‘The Limits of Legislative Harmonisation Ten Years after Tobacco Advertising: How the Court’s Case Law has Become a “Drafting Guide”’ (2011) 12 German Law Journal 827 Weiler, JHH, ‘Eurocracy and Distrust: Some Questions concerning the Role of the European Court of Justice in the Protection of Fundamental Human Rights within the Legal Order of the European Communities’ (1986) 61 Washington Law Review 1103 ——, ‘The Transformation of Europe’ (1991) 100 Yale Law Journal 2403 —— and Lockhart, N, ‘“Taking Rights Seriously” Seriously: The European Court and its Fundamental Rights Jurisprudence’ (1995) 32 CML Rev 51 (Part I) and 579 (Part II) Wendel, M, ‘Lisbon before the Courts: Comparative Perspectives’ (2011) 7 European Constitutional Law Review 96 White, R, ‘A New Era for Human Rights in the European Union?’ (2011) 30 Yearbook of European Law 100 Wildhaber, L, ‘A Constitutional Future for the European Court of Human Rights’ (2000) 23 Human Rights Law Journal 161 Will, R, ‘German Unification and the Reform of Abortion Law’ (1996) 3 Cardozo Women’s Law Journal 399 Woodhouse, D, ‘The Constitutional and Political Implications of a United Kingdom Supreme Court’ (2004) 24 Legal Studies 134 Wouters, J, ‘National Constitutions and the European Union’ (2000) 27 Legal Issues of Economic Integration 25 Wyatt, D, ‘Is the European Union an Organisation of Limited Powers?’ in A Arnull, C Barnard, M Dougan and E Spaventa (eds), A Constitutional Order of States? Essays in EU Law in Honour of Alan Dashwood (Oxford, Hart Publishing, 2011) Young, A, ‘Hunting Sovereignty: Jackson v Her Majesty’s Attorney General’ [2006] PL 187 ——, ‘Is Dialogue Working under the Human Rights Act 1998?’ [2011] PL 773 Zagrebelsky, G, ‘Existe-t-il une politique jurisprudentielle de la Cour constitutionnelle italienne?’ [2006] no 20 Cahiers du Conseil constitutionnel Zbíral, R, ‘Czech Constitutional Court, judgment of 31 January 2012, Pl ÚS 5/12’ (2012) 49 CML Rev 1475 Zemánek, J, ‘The Two Lisbon Judgments of the Czech Constitutional Court’ in JM Beneyto and I Pernice (eds), Europe’s Constitutional Challenges in the Light of the Recent Case Law of National Constitutional Courts: Lisbon and Beyond (Baden-Baden, Nomos, 2011) Ziegler, M, ‘Framing Change: Cause Lawyering, Constitutional Decisions and Social Changes’ (2010) 94 Marquette Law Review 263 Zifcak, S, ‘Hungary’s Remarkable, Radical, Constitutional Court’ (1996) 3 Journal of Constitutional Law in Eastern and Central Europe 1 Ziller, J, ‘National Constitutional Concepts in the New Constitution for Europe’ (2005) 1 European Constitutional Law Review 247

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WORKING PAPERS Jakab, A, ‘Judicial Reasoning in Constitutional Courts: A European Perspective’ (2012), http:// papers.ssrn.com/sol3/papers.cfm?abstract_id=1956657 Limbach, J, ‘The Effects of the Jurisdiction of the German Federal Constitutional Court’ (1999) EUI Working Paper LAW 99/5, 21, www.cadmus.eui.eu Scheeck, L, ‘Competition, Conflict and Cooperation between European Courts and the Diplomacy of Supranational Judicial Networks’ [2007] GARNET Working Paper No 23/07 Schor, M, ‘Constitutional Dialogue and Judicial Supremacy’ (2010) Drake University Law School Research Paper No 12-02 Tushnet, M, ‘Dialogue and Constitutional Duty’ (2010) Harvard Public Law Working Paper No 12-10

DISSERTATIONS Magelhães, P, The Limits to Judicialization: Legislative Politics and Constitutional Review in the Iberian Democracies (Dissertation, Ohio State University 2003)

CONFERENCE REPORTS AND PAPERS Garlicki, L, ‘Le recours individuel à la Cour constitutionnelle: un moyen efficace de la protection des droits de l’homme?’ (Constitutionality control and the protection of fundamental rights seminar, Erévan, 22–24 October 1997) Medrano, A, ‘Active Legitimization in Constitutional Proceedings: The Spanish Case’ (26th International Congress of Comparative Law, Brisbane, July 2002) Rüth, C and Lohse, K, ‘Constitutional Review of Decisions of Non-Constitutional Courts by the German Federal Constitutional Court’ (conference on Limits of Constitutional Review of Ordinary Courts’ Decisions in Constitutional Complaint Procedures, Brno, 14–15 November 2005)

PARLIAMENTARY RULES OF PROCEDURE OF VARIOUS COUNTRIES 115 Diario de Sesiones del Congreso de los Diputados 4515–30 (1978) Italian Chamber of Deputies Rules of Procedure, r 108 Rules of the Italian Senate, r 139 Rules of Procedure of the European Parliament (7th parliamentary term – January 2013) Rules and Regulations of the Polish Senate, Arts 85a–85f Rules of Procedure of the Polish Chamber of Deputies, Art 123 Statute of the Lithuanian Parliament

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OPINIONS AND ANNUAL REPORTS OF THE DUTCH COUNCIL OF STATE (RAAD VAN STATE) Advisory opinion of 14 July 2003, Kamerstukken II 2002/2003, 28 885 no 2 Advisory opinion of 6 April 2006, Kamerstukken II 2005/2006, 30 415 no 4 Advisory opinion of 12 September 2007, Kamerstukken II 2007/2008, 31 091 no 4 2009 Annual Report Advisory opinion of 26 January 2010, Kamerstukken II 2009/2010, 32 203 no 4 Advisory opinion of 5 August 2010, Kamerstukken II 2010/2011, 32 522 no 4 Advisory opinion of 23 December 2010, Kamerstukken II 2010/2011, 32 791 no 1 2010 Annual Report

REPORTS OF THE UK HOUSE OF LORDS CONSTITUTION COMMITTEE Reviewing the Constitution: Terms of Reference and Method of Working (HL 2001–02, 11) Devolution: Inter-Institutional Relations in the United Kingdom (HL 2002–03, 28) Parliament and the Legislative Process (HL 2003–04, 173) Relations between the Executive, the Judiciary and Parliament (HL 2007–07, 151) Relations between the Executive, the Judiciary and Parliament: Follow-Up Report (HL 2007–08, 177) Surveillance: Citizens and the State (volume I) (HL 2008–09, 18-I) Fast-Track Legislation: Constitutional Implications and Safeguards (HL 2008–09, 116-I) Referendums in the United Kingdom (HL 2009–10, 99) Public Bodies Bill (HL 2010–12, 51) Fixed-Term Parliaments Bill (HL 2010–11, 69) Sessional Report 2010–12 (HL 2012–13, 16)

REPORTS OF THE UK JOINT COMMITTEE ON HUMAN RIGHTS Making of Remedial Orders (2001–02, HL 58, HC 473) Prevention of Terrorism Bill: Preliminary Report (2004–05, HL 61, HC 389) Prevention of Terrorism Bill (2004–05, HL 68, HC 334) The Work of the Committee in the 2001–2005 Parliament (2004–05, HL 112, HC 552) Monitoring the Government’s Response to Court Judgments Finding Breaches of Human Rights (2006– 07, HL 128, HC 728) Enhancing Parliament’s Role in Relation to Human Rights Judgments (2009–10, HL 85, HC 455)

REPORTS AND STATEMENTS OF THE FINNISH CONSTITUTIONAL LAW COMMITTEE (PERUSTUSLAKIVALIOKUNTA) Report 25/1994 Report 10/198 Statement 56/2001 on the future of the European Union Statement 6/2006

468 BIBLIOGRAPHY

PARLIAMENTARY DOCUMENTS

Belgium Gedr St Senaat, 1981–82, no 246/1, p 6; no 246/2 Parliamentary documents House of Representatives 1982–83 647 no 6 Parliamentary documents of the Belgian Senate 1988 no 100-3/1 Memorie van Toelichting, Parl St, Senaat, GZ 1988–89, no 483/1, 5 Verslag Lallemand and Baert, Parl St, Senaat, GZ 1988–89, no 483/2 Verslag Onkelinx and Merckx-Van Goey, Parl St, Kamer, GZ 1988–89, no 633/4 Verslag Lallemand and Leemans, Parl St, Senaat, BZ 1988, no 100-3/2º Parliamentary documents of the Belgian Senate 1988–89, no 483-2 44 Parliamentary documents of the House of Representatives 1988–89, no 633–4 Memorie van Toelichting, parliamentary documents of the Belgian Senate 2000–01, no 2-897/1 2 Parliamentary documents of the Belgian Senate 2002–03, no 2-897/6 212

The Netherlands Kamerstukken II, 2001/2002, 28 331, nos 1–3 Memorie van toelichting, Kamerstukken II 28 331 no 3 Kamerstukken II 28 331 no 3 Kamerstukken II 32 334, no 5, Verslag van de vaste commissie voor Binnenlandse Zaken en Koninkrijksrelaties Nadere memorie van antwoord, Kamerstukken I 2009/2010, 30 585 no 1 Nadere memorie van antwoord, Kamerstukken I 2009/2010, 30 585 no E Motion-Franken, Kamerstukken I 2010/2011, 31 051 no 1

REPORTS, OPINIONS AND STUDIES OF THE EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) Annual Report of Activities for 2008 Annual Report of Activities for 2009 Annual Report of Activities for 2010 Opinion 523/2009 – Amicus Curiae Brief for the Constitutional Court of Georgia on the retroactivity of statutes of limitation and the retroactive prevention of the application of a conditional sentence (CDL-AD(2009)012, Venice, 13–14 March 2009) Opinion 537/2009 on draft amendments to the law on the constitutional court of Latvia (CDL-AD(2009)042, Venice, 9–10 October 2009) Study No 538/2009 on Individual Access to Constitutional Justice (CDL-AD(2010)039 rev, Venice, 17–18 December 2010) Annual Report of Activities for 2011 Opinion 614/2011 on three legal questions arising in the process of drafting the new Constitution of Hungary (CDL-AD(2011)001, Venice, 25–26 March 2011) Opinion 621/2011 on the New Constitution of Hungary (CDL-AD (2012)009), Venice, 17–18 June 2011)

BIBLIOGRAPHY 469

Opinion 665/2012 on Act CLI of 2011 on the Constitutional Court of Hungary (CDL-AD(2012)009, Venice, 15–16 June 2012) Opinion 675/2012 – Amicus Curiae Brief on the compatibility with human rights standards of certain articles of the law on primary education of the Sarajevo canton of the Federation of Bosnia and Herzegovina (CDL-AD(2012)013, Venice, 15–16 June 2012) Opinion 679/2012 on the Revision of the Constitution of Belgium (CDL-AD(2010)010, Venice, 15–16 June 2012)

DOCUMENTS RELATED TO THE CONFERENCE OF EUROPEAN CONSTITUTIONAL COURTS (CECC)

Reports submitted for the triennial congresses of the CECC Alen, A and Melchior, M, The Relations between the Constitutional Courts and the Other National Courts, including the Interference in this Area of the Action of the European Courts, General Report for the XIIth Congress of the Conference of European Constitutional Courts (2002) de Grève, L and Melchior, M, Constitutionele bescherming en internationale bescherming van de mensenrechten: concurrentie of complementariteit, National Report for the IXth Congress of the Conference of European Constitutional Courts (1993) Belgian constitutional court, The Relations between the Constitutional Courts and the Other National Courts, including the Interference in this Area of the Action of the European Courts, National Report for the XIIth Congress of the Conference of European Constitutional Courts (2002) Czech constitutional court, The Relations between the Constitutional Courts and the Other National Courts, including the Interference in this Area of the Action of the European Courts, National Report for the XIIth Congress of the Conference of European Constitutional Courts (2002) German federal constitutional court, Constitutional Justice: Functions and Relationship with the Other Public Authorities, National Report for the XVth Congress of the Conference of European Constitutional Courts (2011) German federal constitutional court, The Relations between the Constitutional Courts and the Other National Courts, including the Interference in this Area of the Action of the European Courts, National Report for the XIIth Congress of the Conference of European Constitutional Courts (2002) Italian constitutional court, Constitutional Justice: Functions and Relationship with the Other Public Authorities, National Report for the XVth Congress of the Conference of European Constitutional Courts (2011) Italian constitutional court, The Relations between the Constitutional Courts and the Other National Courts, including the Interference in this Area of the Action of the European Courts, National Report for the XIIth Congress of the Conference of European Constitutional Courts (2002) Polish constitutional tribunal, The Relations between the Constitutional Courts and the Other National Courts, including the Interference in this Area of the Action of the European Courts, National Report for the XIIth Congress of the Conference of European Constitutional Courts (2002) Spanish constitutional tribunal, The Problems of Legislative Omission in Constitutional Jurisprudence, National Report for the XIV Congress of the Conference of European Constitutional Courts (2008) Spanish constitutional tribunal, The Relations between the Constitutional Courts and the Other National Courts, including the Interference in this Area of the Action of the European Courts, National Report for the XIIth Congress of the Conference of European Constitutional Courts (2002)

470 BIBLIOGRAPHY

Decisions and Regulations of the CECC Decision V of the 2012 Circle of Presidents Regulations of the Conference Resolution I of the XIIth Congress Resolution VII of the XIVth Congress of the Conference of European Constitutional Courts Resolution X of the XVth Congress Statute of the Conference of European Constitutional Courts

WORLD CONFERENCE ON CONSTITUTIONAL JUSTICE Final Declaration of the World Conference on Constitutional Justice, ‘Influencing Constitutional Justice: its Influence on Society and on Developing a Global Human Rights Jurisprudence’ (Cape Town, 22–24 January 2009) Statute of the World Conference on Constitutional Justice

REPORTS Bellocci, M and Giovannetti, T, Il quadro delle tipologie decisorie nelle pronunce della Corte costituzionale, Report prepared for the visit of the Hungarian constitutional court on 11 June 2010 and available on the website of the Corte costituzionale Commission on a Bill of Rights, A UK Bill of Rights? The Choice before Us (December 2012), www. justice.gov.uk/about/cbr European Commission, 2011 Report on the Application of the EU Charter of Fundamental Rights Final Report of Working Group II (CONV 354/02 of 22 October 2002) Final Report of the Discussion Circle on the Court of Justice, CONV 636/03 (Brussels, 25 March 2003) Rapport d’activité du comité prévu par l’article 255 du Traité sur le fonctionnement de l’union européenne submitted to the Council of the European Union, 6509/11 (Brussels, 17 February 2011) Rapport remis au Président de la République le 15 février 1993 par le Comité consultatif pour la révision de la Constitution (Comité Vedel), Journal officiel de la République Française 16 février 1993, 2540 Report of the comité de réflexion et de proposition sur la modernisation et le rééquilibrage des institutions de la Ve République, Une Ve République plus démocratique Report of the Court of Justice on certain aspects of the application of the Treaty on European Union (Luxembourg, 5 May 1995) Report by the Group of Wise Persons to the Committee of Ministers CM (2006) 203 of 15 November 2006 Royal Commission on the Reform of the House of Lords, A House for the Future, Cm 4534 (2000) Scientific Council for Government Policy (Wetenschappelijke Raad voor het Regeringsbeleid), Europa in Nederland (Europe in the Netherlands), Report to the Government No 87 (2007) Thorgeirsdóttir, H, The Icelandic Constitutional Experiment, Report for the Venice Commission of 23 September 2011 (CDL-JU(2011)017) Wakeham Commission, A House for the Future, Cm 4534 (2000) Warsmann, J-L, Rapport d’information no 2838 sur l’evaluation de la loi organique no 2009-1523 du 10 decembre 2009 relative a l’application de l’article 61-1 de la Constitution, www.assemblee-nationale. fr/13/rap-info/i2838.asp

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SPEECHES Costa, J-P, speech given on the occasion of the opening of the judicial year of the European Court of Human Rights (Strasbourg, 25 January 2008) ——, ‘Le rôle des autorités nationales, notamment judiciaires, et le futur de la protection des droits de l’homme en Europe’ (XIII International Forum on Constitutional Justice, St Petersburg, 18 November 2010) ——, ‘The Role of the National Authorities, Especially the Courts, and the Future of Human Rights Protection in Europe’ (speech delivered during the conference ‘Problems of Application of the Court’s Case Law in the Legal System of Ukraine’, Kiev, 1 July 2011) Dutheillet de Lamothe, O, ‘L’influence de la cour européenne des droits de l’homme sur le Conseil constitutionnel’ (speech on the occasion of a visit of members of the European Court of Human Rights, Paris, 13 February 2009) Grabenwarter, Ch, ‘Keynote Speech: Separation of Powers and the Independence of Constitutional Courts and Equivalent Bodies’ (2nd Congress of the World Conference on Constitutional Justice, Rio de Janeiro, 16 January 2011) Holzinger, G, ‘Presentation of Experiences and Expertise from the Conference of European Constitutional Courts, which will provide insight into the Association of Asian Constitutional Courts and Equivalent Institutions (AACC) future directions’ (Inaugural Congress of the AACC, Seoul, 20–24 May 2012) Joint Communication from President Costa of the European Court of Human Rights and President Skouris of the Court of Justice (17 January 2011, available at the Court of Justice’s website) Küri, E, ‘Address on behalf of the Conference of European Constitutional Courts’ (5th Annual Conference of Asian Constitutional Court Judges, Seoul, October 2007) Lady Justice Arden, ‘The Convention is Yours’ (2010 Dialogue between Judges) Lord Mance, ‘The Composition of the European Court of Justice’ (London, UK Association for European Law, 19 October 2011) Sauvé, JM, ‘L’examen de la constitutionalité de la loi par le Conseil d’État’ (presentation delivered on 1 April 2011 at the University of Paris 1) Vardanyan, V, ‘Globalizing Constitutional Justice: Responsibility to Cooperate’ (Inaugural Congress of the Association of Asian Constitutional Courts and Equivalent Institutions, Seoul, 20–24 May 2012)

BLOGPOSTS Dyevre, A, ‘Judicial Non-Compliance in a Non-Hierarchical Legal Order: Isolated Accident or Omen of Judicial Armageddon?’ (Verfassungsblog, 29 February 2012) Simson Caird, J, ‘A Report on the United Kingdom Constitution Law Group Seminar’ (UK Constitutional Law Group, 1 February 2012), http://ukconstitutionallaw.org/blog Uitz, R, ‘Hungarian Ban of Totalitarian Symbols: The Constitutional Court Speaks Up Again’ (Verfassungsblog, 22 February 2013) Scheppele, KL, ‘Constitutional Revenge’ (Verfassungsblog, 4 March 2013)

472 BIBLIOGRAPHY

PRESS RELEASES Press release No 24/09 of the Court of Justice of 24 March 2009 Hungarian Constitutional Court, press release on the modification of the Constitutional Court’s fields of competences, 5 November 2011 Press release No 65/12 of the Court of Justice of 15 May 2012 ‘Official visit of the Court of Justice of the European Union to Romania’ Statement from the President of the European Commission and the Secretary General of the Council of Europe, ‘Vote by the Hungarian Parliament on the Fourth amendment to the Hungarian Fundamental law’, press release DC 013(2013)

NEWSPAPER ARTICLES ‘Commission Warns Bulgaria over Judicial Independence’, Euractiv (31 October 2012), www.euractiv.com/central-europe/commission-threatens-bulgaria-ex-news-515795 ‘Fidesz Picks Another Fight’, The Economist, 28 October 2010 Bossuyt, M, ‘Verkiezingen 2009 ongrondwettelijk zonder oplossing BHV’, De Morgen (13 November 2007) Buckley, N, Judges Caught in Romania Power Struggle’, Financial Times (London, 7 August 2012) Editors, ‘PVV: Beatrix uit regering’, Algemeen Dagblad (Amsterdam, 20 April 2011) Herzog, R and Gerken, L, ‘Stop the European Court of Justice’, Frankfurter Allgemeine Zeitung (8 September 2008) Hinke, B, ‘Wetsvoorstel PVV om koningin uit regering te zetten “is in de maak”’, NRC (Rotterdam, 20 April 2011) Lenoir, N, ‘Une cour constitutionnelle française pour le XXIe siècle’, Le Monde (Paris, 19 May 2009) Nielsen, N, ‘Hungary Law Reform Sparks Protest, Criticism’, Euobserver (11 March 2013) Zantingh, P, ‘PvdA-plan over Donner sneuvelt: ceremonieel koningschap van tafel’, NRC (Rotterdam, 11 October 2011)

LIST OF WEB ADDRESSES

Austria Verfassungsgerichtshof: www.vfgh.gv.at

Belgium Raad van State: www.raadvanstate.be Cour constitutionnelle: www.const-court.be

BIBLIOGRAPHY 473

Czech Republic Ústavní Soud: www.usoud.cz

Estonia Constitutional review chamber of the supreme court: www.riigikohus.ee/?id=186 Chancellor of justice: oiguskantsler.ee/en

European Courts Court of Justice of the European Union: curia.europa.eu European Court of Human Rights: www.echr.coe.int

Finland Chancellor of justice: www.okv.fi/en Perustuslakivaliokunta: web.eduskunta.fi/Resource.phx/parliament/committees/constitutional.htx

France Conseil constitutionnel: www.conseil-constitutionnel.fr Cour de cassation: www.courdecassation.fr Conseil d’État: www.courdecassation.fr

Germany Bundesverfassungsgericht: www.bundesverfassungsgericht.de

Hungary Alkotmánybíróság: www.mkab.hu

Italy Corte costituzionale: www.cortecostituzionale.it Corte suprema di cassazione: www.cortedicassazione.it

474 BIBLIOGRAPHY

Lithuania Konstitucinis Teismas: www.lrkt.lt/index_e.html

Poland Trybunał Konstytucyjny: www.trybunal.gov.pl

Spain Tribunal Constitucional: www.tribunalconstitucional.es Tribunal Supremo: www.poderjudicial.es/cgpj/es/Poder_Judicial/Tribunal_Supremo

The Netherlands Hoge Raad: www.rechtspraak.nl/organisatie/hoge-raad/Pages/default.aspx Raad van State: www.raadvanstate.nl

United Kingdom Supreme Court: www.supremecourt.gov.uk/index.html House of Lords Constitution Committee: www.parliament.uk/hlconstitution

Other organisations Venice Commission: www.venice.coe.int Conference of European Constitutional Courts: www.confeuconstco.org/home.html World Conference on Constitutional Justice: www.venice.coe.int/WCCJ/WCCJ_E.asp

MISCELLANEOUS 2007 Annual Report of the Chancellor of Justice (Tallinn, 2008) Alito, S, An Introduction to the Italian Constitutional Court (Woodrow Wilson School Scholar Project for Professor Walter Murphy, 1972), www.princeton.edu/~mudd/news/Alito_thesis.pdf Belgian Government, Amendment to Article 195 of the Constitution of Belgium: Memorandum for the attention of the Venice Commission (CDL-REF(2012)019, Strasbourg, 22 May 2012) Conference of the representatives of the governments of the Member States, CONF 3860/1/96 (Brussels, 17 June 1996) 5

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Consolidated summary of the proceedings of the OSCE Human Dimension Seminar on Constitutional Justice, held in Warsaw on 14–16 May 2008, www.osce.org/odihr/33161 Convention on certain Institutions common to the European Communities European Court of Human Rights Reflection Paper on the Proposal to Extend the Court’s Advisory Jurisdiction’ adopted in preparation for the High Level Conference on the Future of the European Court of Human Rights in Brighton (UK), 18–20 April 2012 Holzinger, G, ‘Welcome: XVIth Congress of the Conference of European Constitutional Courts’, www.vfgh.gv.at/cms/vfgh-kongress/en/index.html Home Department, Rights Brought Home: The Human Rights Bill (Cm 3782, 1997) Icelandic Act 90/2010 on a constitutional assembly Letter from the president of the Republic of Hungary to the speaker of Parliament of 20 October 2008, II-1/04546-1/2008 Ministry of Justice, Responding to Human Rights Judgments: Report to the Joint Committee on Human Rights on the Government’s Response to Human Rights Judgments 2011–2012 (Cm 8432, 2012) Opinion no 9 of the Consultative Council of European Judges (CCJE) for the attention of the Committee of Ministers of the Council of Europe on the role of national judges in ensuring an effective application of international and European law, Strasbourg, 8–10 November 2006 Recommendations of the Court of Justice of the European Union to national courts and tribunals in relation to the initiation of preliminary ruling proceedings [2012] OJ C338/1 Rights Brought Home: The Human Rights Bill, White Paper preceding the introduction of the 1998 Act in Parliament, Cm 3782 (1997) Status Denkschrift, 6 Jahrbuch des öffentliches Recht 144 (1957) Supreme Court of the United Kingdom, Annual Report and Accounts (HC 2010–11, 976) Supreme Court of the United Kingdom, Annual Report and Accounts (HC, 2009–10, 64) Travaux préparatoires de la Constitution de 4 octobre 1958, Avis et débats du Comité consultatif constitutionnel (Paris, Documentation française, 1960) van den Berg, J et al, ‘Verbindend koningschap in de republiek: advies van de commissie ad hoc “Actualisatie toekomst Koningshuis” van de Partij van de Arbeid’ (Amsterdam, 24 August 2011) Working document 19 of Working Group II of the European Convention, ‘Incorporation of the Charter/Accession to the ECHR’, hearing of Judge Vassilios Skouris, Brussels, 27 September 2002 Working Group II of the European Convention, Working Document 021, ‘The Question of Effective Judicial Remedies and Access of Individuals to the European Court of Justice’ (Brussels, 1 October 2002)

Index abortion, legislature’s interactions with constitutional courts (Germany) 338–42 abstract challenges/review 97, 99–132 basic issues 99 by private individuals 128–32 a posteriori basic issues 111–12 by country 113–22 comparative issues 122–8 institution selection 123 legislative omission 127–8 nature of review 125–7 rules on standing 123–4 timing issues 124–5, 126 a priori basic issues 99–100 by country 100–9 comparative issues 109–11 academia’s role 49–50 Antilles islands 82 Austria constitutional adjudication a posteriori 112 fundamental rights 142 institutional design 95 preliminary references 133 Court of Justice, interactions with constitutional court 403 integrity of political office, ensuring of electoral disputes 170 presidential impeachment 172 public discourse/public opinion 48 Balladur, Edouard 46–7 Belgium composition of Cour constitutionnelle number of judges 211 qualifications 214–15 selection/appointment procedure 207 constitution-conform interpretation 294–5, 301 constitutional adjudication a posteriori 113–14 challenges by private individuals 128–30 constitution-conform interpretation 294–5, 301 institutional design 95 preliminary references 133, 134–5 state bodies, competence collision avoidance 56–7 unconstitutionality, findings of 312–13, 317 uphold statute, decision to 309 vertical balance of powers 157–8 constitutional court 14, 18 Council of State 16–18

basic mandate 16–17 compatibility opinions 17–18 membership/sections 17 and parliament 33 Court of Justice, interactions with constitutional court 403, 404, 405, 408, 411, 421–2 institutional disputes, vertical balance of powers 157–8 legislature’s interactions with constitutional court constitutional overrides 370 legislative inertia 374–6 sources of standards for review, Cour constitutionnelle 230–5 Bill of Rights 233 federal/federated echelons, provisions governing the division of competences 230–1 international/European rules 233–4 non-discrimination principle 231–3 summary 234–5 unconstitutionality, findings of 312–13, 317 bench see composition of courts Bickel, A 327 Bonaparte, Napoleon 13 Bulgaria constitutional adjudication 112 preliminary references 133 integrity of political office electoral disputes 170 political parties’ proscription 176 presidential impeachment 172 Canada, legislative overrides 346–7 chancellors of justice 12–13, 20–2 and parliaments 32–4 Charles V 13 Comella, Ferreres V 97–8, 189, 216, 333, 378 communism, crimes committed during, legislature’s interactions with constitutional courts (Hungary) 342–6 composition of constitutional courts basic issues 205–6 Court of Justice see under Court of Justice of the European Union (CJEU) duration of appointment 218–21 fixed periods 219–21 life appointment 218–19 security of tenure 222 number of judges 210–11 qualifications 211–18 federated entities, representation of 217–18 ideological/policy preferences 218 legal training 215–16 removal from bench 221–2

478 INDEX composition of constitutional courts (cont): selection/appointment procedures 206–10 by legislature 206–7 by public institutions 208–10 legislature/executive, joint prerogative 207–8 Conference of European Constitutional Courts 393–6, 440 aims 394 background 393 congresses 394–5 impact 395–6 membership 393–4 constitution-conform interpretation application issues 304–5 basic issues 291–2 by country 294–301 controversial nature 292 Court of Justice see under Court of Justice of the European Union (CJEU) evaluation 301–5 institutions/state bodies, relationship 302–3 judicial creativity 303–4 meaning 292–3 ordinary courts see under ordinary courts, interactions with constitutional courts réserves d’interprétation 291, 297 scope 293 Verfassungskonforme Auslegung 291 constitutional adjudication a priori/a posteriori 96 abstract challenges see abstract challenges/review abstract interpretation 140–2 authoritarian regimes, transition from 61 basic issues/conclusions 53, 86–7, 93 by country 63–75 concrete review 97 Court of Justice see Court of Justice of the European Union (CJEU) decentralisation/centralisation, distinction 94–6 ECHR/EU membership impact 75–8, 91–2 European Court of Human Rights 90–2 development 91 origins 90–1 fundamental rights see fundamental rights gouvernement des juges critique 56, 58–9 institutional design 94–7 institutional disputes see institutional disputes integrity of political office see integrity of political office meaning 54–5 methods/strategies see methods and strategies, by courts parliamentary pre-eminence/sovereignty 79–86 political office see integrity of political office preliminary references see preliminary reference procedures purposes 97–8 reasons 61–2, 87 rule of law 61–2 state bodies, competence collision avoidance 55–61

constitutional complaint mechanism fundamental rights, constitutional adjudication 142, 143 ordinary courts, interactions with constitutional courts 382, 385–92 constitutional courts 185–9, 223 activation of procedures 188–9 combination of functions 186, 188 comparative tables 187, 224 Court of Justice see Court of Justice of the European Union (CJEU), interactions with constitutional courts cross-border judicial gatherings concerns/objections 402–3 language issues 401 motivation 399–401 personalities 401–2 proliferation 399 technological progress 401 domestic interactions 329–31, 438–40 legislatures see legislatures, interactions with constitutional courts ordinary courts see ordinary courts, interactions with constitutional courts ECHR see European Court of Human Rights, interactions with constitutional courts European constitutional courts, interactions 392–403 functions 185–6 interactions 330–1, 438–40 procedures, availability/design 188 constitutional dialogue 329–31 constitutional interpretation/review 2–3, 12 constitutional overrides 356–73 amendments, review of 371–2 basic features 356–7 by country 357–67 European Union see Court of Justice of the European Union (CJEU), constitutional overrides general observations 369–73 non-legal factors 372–3 constitutional review study definitions 2–3, 12 method 6–9 national/European perspectives 3–5 objectives 5–6 structure 9–10 terminology 9 topic 1–2 constitutions changes/amendments 1–2 definitions 1 councils of state 12–20 basic functions 12–13 basic issues 13–14 Belgium, Conseil d’État see Belgium dual mandate and ECHR 18–20 France, Conseil d’État 13 historical development 13 Netherlands, Raad van State see Netherlands and parliaments 32–4

Court of Justice of the European Union (CJEU) 87–90, 91–2 basic role 89 composition 223, 225–8 duration of appointment 227 eligibility 226–7 member states’ role 223, 225 security of tenure 227–8 size of court 226 consistent interpretation principle 308–9 constitution-conform interpretation 305–9 basic features 305–7 consistent interpretation, principle of 308–9 post-Lisbon Treaty 307–8 constitutional overrides 367–9, 370–1 deference rhetoric 285 evolution 89–90 fundamental rights, protection 193–6 integrity of political office, ensuring of 201 interactions with constitutional courts basic issues 403, 440 case law 405–6, 417–27 competence issues 413–15 constitutional identity 415–17 extra-judicial writings 407 formal mechanism 403–4 fundamental rights 409–12 personal contacts 406–7 legislatures boundaries, keeping within 190–3 interactions with constitutional overrides 367–9, 370–1 give-and-take processes 337–8 non-constitutional functions 201–3 origins 87–9 sources of standards for review 269–76 basic issues 269 fundamental rights 273–5 human rights treaties 273–4 international law 275–6 treaty provisions 270 unwritten principles 271–2 types of judgment 324–7, 328 annulment/preliminary reference, contexts/legal effects 324–5 comparison with national constitutional courts 326–7 temporal effects 326 vertical/horizontal institutional disputes 196–201 see also constitutional courts Cyprus, constitutional adjudication 95 Czech Republic composition of Ústavní Soud duration of appointment 220 number of judges 211 qualifications 212 removal from bench 221, 222 selection/appointment procedure 207–8 constitution-conform interpretation 296–7, 302, 379, 381, 382, 383 constitutional adjudication a posteriori 114–15

INDEX 479 a priori 108 constitution-conform interpretation 296–7, 302, 381, 382, 383 constitutional complaint mechanism 145–6, 385, 387–8, 391 fundamental rights, protection of 145–6 historical precedents 69–70 institutional design 95 preliminary references 133 unconstitutionality, findings of 316, 317–18, 319 uphold statute, decision to 309 Ústavní Soud, establishment of 70–1 constitutional complaint mechanism 145–6, 385, 387–8, 391 Court of Justice, interactions with constitutional court 403, 404, 414–15 head of state 43 institutional disputes, vertical balance of powers 161 integrity of political office, ensuring of electoral disputes 170 political parties’ proscription 176, 177–8 presidential impeachment 172, 173–4 legislature’s interactions with constitutional court, constitutional overrides 372 sources of standards for review, Ústavní Soud 235–9 constitutional order 235, 237–8 democratic state requirements 238–9 human rights treaties 235–7 unconstitutionality, findings of 316, 317–18, 319 deference rhetoric see under methods and strategies, courts Dehousse, R 227 Denmark, constitutional adjudication 78, 94 Dicey, AV 83, 85, 86 electoral disputes, adjudication of basic issues 169 by country 169–72 comparative issues 172 Estonia chancellor of justice 21–2 constitutional adjudication a posteriori 112 a priori 100 fundamental rights, protection of 142 institutional design 95–6 head of state 36–7, 40 European Convention on Human Rights (ECHR) 90 European Court of Human Rights interactions with constitutional courts 427–37 basic issues 427–8, 440 communication through case law 428–36 personal dialogues 436–7 see also under constitutional adjudication European Union see Court of Justice of the European Union (CJEU) ex nunc/ex tunc effects see under unconstitutionality, findings of

480 INDEX Favoreu, Louis 49 Finland academia’s role 50 chancellor of justice 20–1 constitutional adjudication 76–8, 94 Constitutional Law Committee 26–9 basic role 26–7 composition 29 exceptive laws 28–9 hearings/decisions 27–8 quasi-judicial role 29 referral process 27 exceptive laws 28–9 sources of standards for review, Constitutional Law Committee 268–9 fundamental rights/human rights 268–9 institutional balance 269 France composition of Conseil constitutionnel duration of appointment 220 number of judges 211 qualifications 212 removal from bench 221 selection/appointment procedures 208 Conseil d’État 13 constitution-conform interpretation 297–9 constitutional adjudication 57–61 a priori 100–3 Conseil constitutionnel, establishment of 59–61 constitution-conform interpretation 297–9 institutional design 95 pre-WWII 58–9 pre/post-1789 57–8 preliminary references 133, 135–8 unconstitutionality, findings of 317–18 uphold statute, decision to 309 Court of Justice, interactions with constitutional court 403–4, 405, 415, 422–3 head of state 40–2 institutional disputes, horizontal balance of powers 163–5 integrity of political office, ensuring of electoral disputes 170–2 referendums, regularity/constitutionality 181, 182–3 legislature’s interactions with constitutional court, constitutional overrides 357–62, 369, 371 réserves d’interprétation see constitution-conform interpretation sources of standards for review, Conseil constitutionnel 243–9 Charter for the Environment 246–7 bloc de constitutionnalité 243–4 international/European treaties 248–9 objectives of constitutional value 247–8 preamble to the 1958 constitution 244–6 unconstitutionality, findings of 317–18 fundamental rights, constitutional adjudication 61–2, 142–3 admissibility conditions 152 by country 143–51 comparative issues 151–5

consequences for constitutional courts 153–4 constitutional complaints procedures, general 142, 143 natural/legal persons 152 object of complaint 152–3 other procedures, relationship with 142–3 tensions with regular judges 155, 385–92 Garlicki, L 392 Germany composition of Bundesverfassungsgericht duration of appointment 220 number of judges 210–11 qualifications 214 removal from bench 221, 222 selection/appointment procedure 206–7 constitution-conform interpretation 301, 379, 383 constitutional adjudication a posteriori 116–17 a priori 108–9 Bundesverfassungsgericht, establishment of 64–5 constitution-conform interpretation 301, 379, 383 constitutional complaint mechanism 143–5, 385, 386, 387, 391 fundamental rights 143–5 historical precedents 63–4 institutional design 95 preliminary references 133 unconstitutionality, findings of 314, 317–18, 322–4 uphold statute, decision to 309, 310–12 constitutional complaint mechanism 385, 386, 387, 391 Court of Justice, interactions with constitutional court 404n, 405, 409–11, 413–14, 415, 416, 417, 424–5 ECHR, interactions with constitutional court, case study Caroline Von Hannover 431–4 head of state 40 institutional disputes horizontal balance of powers 166–7 vertical balance of powers 157 integrity of political office, ensuring of electoral disputes 169–70 political parties’ proscription 176–7 presidential impeachment 172, 173 legislature’s interactions with constitutional court 334 case study 338–42 constitutional overrides 363–4, 369, 371, 372 public discourse/public opinion 44–5, 50 sources of standards for review, Bundesverfassungsgericht 239–43 eternity clause 239–40 free development of one’s personality 240–1 institutional arrangements, principles pertaining to 242 international/European law 242–3 objective values 241–2 unconstitutionality, findings of 314, 317–18, 322–4

Verfassungskonforme Auslegung see constitutionconform interpretation Ginsberg, T 53 give-and-take processes 334–46 basic interaction 334–5 case studies, by country 338–46 Court of Justice 337–8 organic nature 336 Goldstein, L 371 gouvernement des juges critique 56, 58–9 Grabenwarter, C 48, 206 Greece, constitutional adjudication 95–6 Grimm, D 281 heads of state 35–43 dissolving parliament 43 honorary distinctions, conferring of 40 legislation assent to 39–40 returned to parliament 36–9 oaths upon taking office 35–6 pardons, granting of 40 security threats 40–2 honorary distinctions, conferring of 40 horizontal balance of powers see under institutional disputes human rights, United Kingdom, legislature overrides, case study 348–53 Hungary composition of Alkotmánybíróság duration of appointment 220–1 number of judges 211 qualifications 213 removal from bench 221, 222 selection/appointment procedure 206–7 constitutional adjudication a posteriori 117–18 a priori 103–6 abstract interpretation 140–2 Alkotmánybíróság, establishment of 73–5 challenges by private individuals 130–2 constitutional complaint mechanism 148–50, 385 fundamental rights, protection of 148–51 institutional design 95 preliminary references 133 unconstitutionality, findings of 317, 319 uphold statute, decision to 309 constitutional complaint mechanism 148–50, 385 head of state 37–9 institutional disputes, horizontal balance of powers 167–8 integrity of political office, ensuring of electoral disputes 170 presidential impeachment 172, 174–5 referendums, regularity/constitutionality 181, 184–5 legislature’s interactions with constitutional court case study 342–6 constitutional overrides 364–7, 369, 372 living law doctrine 289–91 public discourse/public opinion 47–8

INDEX 481 sources of standards for review, Alkotmánybíróság 249–55 1949 constitution 250–3, 255 2012 Fundamental Law 253–5 unconstitutionality, findings of 317, 319 impeachment see presidential impeachment institutional disputes basic issues 155–6 horizontal balance of powers 163–9 basic issues 163 by country 163–8 comparative issues 168 vertical balance of powers 156–63 basic issues 156 by country 157–61 comparative issues 161–3 prominence 162–3 state/lower echelons, procedural rights of 161–2 integrity of political office, ensuring of basic issues 168–9 electoral disputes see electoral disputes impeachment see presidential impeachment political parties’ proscription see political parties’ proscription presidential impeachment see presidential impeachment referendums see referendums, regularity/ constitutionality Ireland constitutional adjudication 95–6, 100 legislature’s interactions with courts, constitutional overrides 370 Italy composition of Corte costituzionale duration of appointment 220 number of judges 211 qualifications 213 removal from bench 221, 222 selection/appointment procedure 208–9 constitution-conform interpretation 301, 379–80, 381–2 constitutional adjudication a posteriori 121–2 constitution-conform interpretation 301, 379–80, 381–2 Corte costituzionale, establishment of 66–7 historical precedents 65–6 institutional design 95 preliminary references 133 unconstitutionality, findings of 314–15, 317–18, 320, 322 uphold statute, decision to 310–12 Court of Justice, interactions with constitutional court 403, 404, 408, 409–11, 416, 418–21 institutional disputes horizontal balance of powers 165–6 vertical balance of powers 160–1 integrity of political office, ensuring of presidential impeachment 172, 173 referendums, regularity/constitutionality 181, 183–4

482 INDEX Italy (cont): legislatures’ interactions with constitutional courts 333 constitutional overrides 369, 371, 372 living law doctrine 286–9, 379–80 sources of standards for review, Corte costituzionale 255–9 direct/indirect proceedings, distinction 258–9 full text of constitution 255–6 international customary law 256 interposed norms 257–8 unwritten rights/principles 256–7 unconstitutionality, findings of 314–15, 317–18, 320, 322 judicialisation 34–5 judiciaries see composition of courts Karlsruhe astrology 35 Kelsen, Hans 64, 95, 186, 440 La Pergola, A 185, 186 Lambert, É 58–9 Latvia constitutional adjudication a posteriori 112 institutional design 95 preliminary references 133 legislative inertia 373–6 basic features 373 competences of courts 373–4 consequences 376 political will 374–6 legislative overrides 346–56 basic features, examples 346–8 case studies, by country 348–56 legislatures, interactions with constitutional courts basic features 331–4 constitutional overrides see constitutional overrides give-and-take see give-and-take processes legislative inertia see legislative inertia legislative overrides see legislative overrides Limbach, J 153 Lithuania constitutional adjudication a posteriori 112 institutional design 95 preliminary references 133 Court of Justice, interactions with constitutional court 403 integrity of political office, ensuring of electoral disputes 170 presidential impeachment 172, 175 living law doctrine 286–91 Louis XVI 58 Luxembourg constitutional adjudication institutional design 95 preliminary references 133 Council of State, dual mandate and ECHR 18–20 head of state 39–40

Major, John 30 Malta, constitutional adjudication 95 methods and strategies, by courts basic issues/summary/conclusions 281–2, 327–8 constitution-conform interpretation see constitution-conform interpretation deference rhetoric 282–6 European see Court of Justice of the European Union (CJEU), types of judgment judicial activism 327–8 living law doctrine 286–91 passive virtues 327 types of judgment 309 unconstitutionality see unconstitutionality, findings of uphold statute see uphold statute, decision to Netherlands constitutional adjudication 79–82 Antilles islands 82 international/European law 81 prohibition 79–80 court’s interpretation 80–1 proposal 81–2 Senate’s role 80 constitutional council 16 Council of State/Raad van State 14–16 basic role 14–15 constitutional adjudication 79–80 constitutional council 16 dual mandate and ECHR 18–20 monarch’s role 15, 47 and parliament 33–4 president/vice-president 15–16 public discourse/public opinion 47 sources of standards for review, Raad van State 264–5 foundational legal texts 264 international/European law 265 unwritten principles 264 non-judicial actors basic issues/conclusions 11–12, 50–1 chancellors of justice 12–13, 20–2 councils of state see councils of state heads of state see heads of state parliaments see parliaments people see public discourse/public opinion ordinary courts, interactions with constitutional courts basic issues 378 constitution-conform interpretation 378–84 challenges in use 379 demarcation of jurisdiction and competences 378–9 interpretative decisions 381–2 living law doctrine 379–81 preliminary reference procedures, conditions for use of 382–4 constitutional complaint mechanism 382, 385–92 admissibility of petitions 386 basic features 385–6

in practice 386–91 living law doctrine 379–81 pardons, granting of 40 parliamentary sovereignty 83, 85, 86 parliaments basic issues 23 chambers 25–6 committees 26 see also Finland, Constitutional Law Committee; United Kingdom, House of Lords Constitution Committee as constitutional legislature 24 councils of state/chancellors of justice 32–4 heads of state see heads of state interpretation/review issues 23–5 judicialisation 34–5 procedural questions 23–4 state organs, influence of 32–5 people see public discourse/public opinion Poland composition of Trybunal Konstytucyjny duration of appointment 220 number of judges 211 qualifications 212 removal from bench 221, 222 selection/appointment procedure 207, 210 constitution-conform interpretation 302, 380 constitutional adjudication a posteriori 118–19 a priori 107 constitution-conform interpretation 302, 380 constitutional complaint mechanism 150–1, 385 institutional design 95 preliminary references 133 Trybunal Konstytucyjny, establishment of 71–3 unconstitutionality, findings of 317, 319 uphold statute, decision to 309 constitutional complaint mechanism 150–1, 385 Court of Justice, interactions with constitutional court 405, 415, 424 institutional disputes, horizontal balance of powers 167 integrity of political office, ensuring of, political parties’ proscription 176, 178–9 legislature’s interactions with constitutional courts 333 non-finality of judgments, case study 353–6 living law doctrine 289, 379–80 sources of standards for review, Trybunal Konstytucyjny 260–2 democratic rule of law 260–1 international law 261–2 unconstitutionality, findings of 317, 319 political office see integrity of political office political parties’ proscription 176–81 basic issues 176 by country 176–80 comparative issues 180–1 historical experience 181 programs/activities, evaluation 181 quorums/voting requirements 180–1

INDEX 483 scope of powers 180 Portugal constitutional adjudication a posteriori 112 a priori 100 institutional design 95–6 integrity of political office, ensuring of electoral disputes 170 political parties’ proscription 176 presidential impeachment 172 preliminary reference procedures abstract review, distinction with 132–3 basic characteristics 132 by country 133, 134–8 decentralised systems 133 general issues 139–40 ordinary courts, interactions with constitutional courts 383–5 presidential impeachment 172–5 basic issues 172 by country 173–5 comparative issues 175 Preysler, Isabel 388–91 proscription of political parties see political parties’ proscription public discourse/public opinion 43–50 academia’s role 49–50 civil society 45–6 defender/commissioner of rights 45–6 law as translation of reality 43–4 role of the media 46–9 salience 44 societal changes 44–5 referendums, regularity/constitutionality basic issues 181–2 by country 182–5 comparative issues 185 Romania constitutional adjudication a posteriori 112 a priori 100 institutional design 95 preliminary references 133 integrity of political office, referendums, regularity/ constitutionality 182 Roosevelt, Franklin D 205 rule of law see constitutional adjudication, rule of law/ fundamental rights Sadurski, W 347–8, 373 Sajó, A 392 Schlink, B 50 security threats 40–2 Shapiro, M 88, 155 Slovakia constitutional adjudication a posteriori 112 a priori 100 fundamental rights, protection of 142 institutional design 95 preliminary references 133

484 INDEX Slovakia (cont): Court of Justice, interactions with constitutional court 425–6 integrity of political office, ensuring of electoral disputes 170 political parties’ proscription 176 presidential impeachment 172 referendums, regularity/constitutionality 182 Slovenia constitutional adjudication a posteriori 112 a priori 100 fundamental rights, protection of 142 institutional design 95 preliminary references 133 integrity of political office, ensuring of electoral disputes 170 political parties’ proscription 176 presidential impeachment 172 Sólyom, Lásló 47–8 sources of standards for constitutional review basic issues 229–30 comparative issues 276–80 constitutional courts see individual countries Court of Justice see Court of Justice of the European Union (CJEU) international/European law 278–9 national constitutions 276, 279–80 summary 229 unwritten rights/principles 277–9 Spain composition of Tribunal Constitucional number of judges 211 qualifications 213–14 removal from bench 221, 222 selection/appointment procedure 209 constitution-conform interpretation 300–1, 302 constitutional adjudication a posteriori 119–21 a priori 106–7 constitution-conform interpretation 300–1, 302 constitutional complaint mechanism 146–8, 385, 388–91 fundamental rights, protection of 146–8 historical precedents 67–8 institutional design 95 preliminary references 133 Tribunal Constitucional, establishment of 68–9 unconstitutionality, findings of 317–18, 320–1 uphold statute, decision to 309 constitutional complaint mechanism 146–8, 385, 388–91 constitutional complaints procedures 382 Court of Justice, interactions with constitutional court 403, 404, 405, 408, 412 institutional disputes horizontal balance of powers 165 vertical balance of powers 158–60 integrity of political office, ensuring of, political parties’ proscription 176, 179–80 legislature’s interactions with constitutional court, constitutional overrides 370

sources of standards for review, Tribunal Constitucional 262–4 bloque de constitucionalidad 263–4 human rights treaties 262–3 unconstitutionality, findings of 317–18, 320–1 Stone Sweet, A 58–9 Sweden, constitutional adjudication 78, 94 Tushnet, M 35 unconstitutionality, findings of basic features 312 basic issues 312–13 deferring annulment 319–20 ex nunc/ex tunc effects 317–19 legislative guidelines 315–17 manipulative decisions 314–15 partial annulment 313–14 temporal effects 317–20 without annulment 320–4 see also methods and strategies, by courts United Kingdom attitude towards constitutional adjudication 83–6 accession to EU 84 devolution 85 Human Rights Act 1998 84–5 parliamentary sovereignty 83, 85, 86 Supreme Court 85–6 declarations of incompatibility, case study 348–53ECHR, interactions with national courts 430, 434–6 House of Lords Constitution Committee 29–32, 83 background 29–30 expanding role 31–2 investigative inquiries 31 legislative scrutiny 30–1 make-up 31 see also sources of standards for review below parliamentary sovereignty 83, 85, 86 sources of standards for review, House of Lords Constitution Committee 266–8 key tenets of the UK constitution 266 normal/constitutional legislation 267 uphold statute, decision to binding effect 309–10 interpretative reservations 310 temporary constitutionality 310–12 Vanberg, G 45 Venice Commission 396–9 aims 397 amicus curiae opinions 398 conferences/seminars/workshops 397–8 IT-based interactions 397 judicial alliances 398–9 members/organisation 396–7 vertical balance of powers see under institutional disputes World Conference on Constitutional Justice 86, 398–9, 440