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Home > Vol 21, No 1 (2015) > Burgorgue-Larsen

The Constitutional Dialogue in Europe: A "political" dialogue

Laurence Burgorgue-Larsen [1]

Cite as Burgorgue-Larsen, L., "The Constitutional Dialogue in Europe: A "political" dialogue", (2015) 21(1) European Journal of Current Legal Issues.

Abstract

Constitutional Courts have always been closely linked to the Court of Justice. The dialogue - via corresponding rulings - has never ceased to be central to the European integration process, for example to create a catalogue for the protection of fundamental rights or to ensure the longevity of essential principles for EU Law effectiveness such as primacy. However, this dialogue has obviously taken a new turn since various Constitutional Courts have used propio motu, the preliminary reference procedure.

Paterson mainly uses the British example to assess the relevance of dialogue between the (new) British Supreme Court and the Court of Justice of the EU. This explains a lot. It is hard to disagree with his statement in the "British context" and given a fantastic sociological investigation, but one can add nuance. Considering a larger spectrum encompassing the specifics of modern continental constitutionalism suggests that the relationship established between Constitutional Courts and the Court of Justice of the EU thanks to the preliminary reference mechanism is eminently political.

For what reasons do Constitutional Courts engage in direct dialogue with the CJEU? What has encouraged them to activate the preliminary reference mechanism under Article 267(3) TFEU? This article will attempt to answer these questions and examine the follow up to the "integrated" dialogue embodied by this mechanism.

1. Introduction

Implementation of the European arrest warrant, [2] protection of secrecy between lawyers and their clients in the context of the fight against money laundering, [3] the quality of social services, [4] protection of personal data [5], the principle of non-discrimination based on sex [6] and, last but not least, economic and financial issues [7]: These are issues that were referred for a preliminary ruling in recent years by several Constitutional Courts in accordance with Article 267(3)TFEU. Given such developments, is it possible to state that dialogue between domestic courts and the CJEU is not productive, as Alan Paterson seems to suggest; that it is successive "monologues" rather than genuine dialogue, fuelled mostly by non legal interactions?

Alan Paterson mainly uses the British example to assess the relevance of dialogue between the (new) British Supreme Court and the Court of Justice of the EU. [8] This explains a lot. It is hard to disagree with his statement in the "British context" and given a fantastic sociological investigation, [9] but one can add nuance. Considering a larger spectrum encompassing the specifics of modern continental constitutionalism suggests that the relationship established between Constitutional Courts and the Court of Justice of the EU thanks to the preliminary reference mechanism is eminently political.

Constitutional Courts have always been closely linked to the Court of Justice. The dialogue - via corresponding rulings - [10] has never ceased to be central to the European integration process, for example to create a catalogue for the protection of fundamental rights [11] or to ensure the longevity of essential principles for EU Law effectiveness such as primacy. [12] However, this dialogue has obviously taken a new turn since various Constitutional Courts have used propio motu, the preliminary reference procedure.

Since the Constitutional Courts of Austria, Belgium, France, Germany, Italy, Lithuania and Spain have activated Article 267(3) TFEU - and others made clear they may (the Courts of Portugal and Poland) - the constitutional and therefore highly political scale of the dialogue has been established. This is not only in organic terms in that preliminary references are submitted by Constitutional Courts, but also and above all at a substantial level as the issues concerned impact European Constitutional Law as they deal almost exclusively with fundamental rights.

For what reasons do Constitutional Courts engage in direct dialogue with the CJEU? What has encouraged them to activate the preliminary reference mechanism under Article 267(3) TFEU? This article will attempt to answer these questions (Section 2) and examine the follow up to the "integrated" dialogue embodied by this mechanism. The only way to evaluate, as close to reality as possible, the positive or negative force of the dialogue is to analyse how Constitutional Courts take the Court of Justice's answers into account (Section 3).

2. The reasons for "constitutional dialogue"

There are multiple reasons as to why Constitutional Courts' have entered the dialogue era: It can be a sign of power (2.1) or the consequences of some technical factors (2.2). These reasons can also be intertwined (2.3).

2.1. A sign of power

The first reason is of a general nature. It has to do with the times we live in, marked by globalisation and ever-fading State sovereignty. In this context, it becomes imperative for each player of the European judicial system to "take the floor", making itself heard in order to remind others of its existence and therefore authority. [13] One must adapt to the new judicial relations if one does not want to decline. As a result, a number of Courts have abandoned their jurisprudence resisting the preliminary reference.

The Spanish case epitomises this state of affairs. [14] For a long time the Spanish Constitutional Court considered disputes involving questions of interpretation or validity of EU Law were not constitutional. [15] Therefore, ordinary judges could only, and in some cases should only, activate the preliminary reference procedure. If they did not respect their referral obligation under Article 267(3) TFEU, they were exposed to an amparo ruling establishing a violation of effective judicial protection provided for in Article 24 of the Spanish Constitution. [16] On 9 June 2011, the Spanish Constitutional Tribunal put an end to that jurisprudence and entered the then closed club of Constitutional Courts that decided to get directly in touch with the Court of Justice. [17] The Court did not hesitate, in relation to a very sensitive issue (i.e. implementation of the European arrest warrant) to refer three questions to the Court for a preliminary ruling on the interpretation and validity of EU Law. This jurisprudence overturn animated politico-doctrinal debates in Spain [18] and in Europe and forced the Court of Justice to live up to expectations raised by a referral dealing with complex issues linked to the Charter of Fundamental Rights (Article 53). With this referral to the Court of Justice, the Spanish Constitutional Court became more prominent at the European level and made itself seen and heard: its question was dissected and analysed of academics as well as European judicial stakeholders. By entering the then rather closed club of Constitutional Courts that embodied judicial exchange with the Union, the Constitutional Court "strengthened its institutional legitimacy" according to one of the referral drafters. [19] Far from being a sign of weakness, the referral characterised power. Moreover, it shows that the Court decided to give up the sterile debate on "judicial hierarchy".

To purposefully engage in dialogue is to make concrete or even strengthen the judicial power of the guarantor of the Constitution. The question was basically whether the protection of fundamental rights should prevail over the unity of implementation of EU Law. The CJEU answer is well known: It took the form of one of the most important rulings of the last few years: In the Melloni judgment the Court of Justice plainly gives priority to implementing EU secondary law. [20] In other words, the Constitutional Court managed to find the right opportunity to make the Court of Justice face its responsibilities. With every landmark preliminary reference comes a landmark ruling.

Refusing dialogue also asserts some power and judicial authority. Silence can also be revealing, for example with regard to the European bank (the Court of Justice of the EU) and the domestic bank (the Constitutional Courts). When the CJEU took a certain position in the Åkerberg Fransson case [21] dealing with the scope of the Charter of Fundamental Rights on 26 February 2013 [22] and, in return, the Constitutional Court of Germany only two months later, on 24 April 2013, [23] gave an opposing interpretation and explained why it would not activate the preliminary reference procedure, this gives us a powerful example of "constitutional dialogue". The Constitutional complaint put before the Karlsruhe-based Court was filed under 2006 legislation that had set up a database to fight terrorism. The legislation allowed for data to be gathered from the federal police, Länder police services and intelligence services. The law came into force in 2007 and led to collecting information from 18,000 people. The German Constitutional Court first had to decide whether to activate the preliminary reference mechanism to allow the CJEU to assess the domestic law's compatibility with the rights and principles enshrined in the EU Charter of Fundamental Rights. [24] This was not deemed necessary (para. 90). To reach this conclusion, the judges looked into the scope of the German law. They decided that even though some contact points existed with the Law of the EU, neither the referred law nor the actions taken to put it into practice "implemented the Law of the EU" according to Article 51(1)(first sentence). Therefore, the Law of the EU did not need to be clarified and it was not necessary to refer it to the Court of Justice for a preliminary ruling as it was not, in this particular case, the "legal" judge under Article 100(1) of the Constitution. In paragraph 91, the Constitutional Court shares its vision of Article 51(1) of the EU Charter, which clearly opposed the EU Court of Justice's vision in the Åkerberg Fransson case at point 19. The "scope" notion as understood by the Kirchberg Court did not satisfy Karlsruhe judges who found it too invasive. Hence the Constitutional Court decided to "regain control" and deliver a more restrictive interpretation of Article 51(1) than that of the Court of Justice two months earlier. If try and put these kinds of conflicts in context, we realise that what is at stake is nothing more and nothing less than the potential decline of the remit of Constitutional Courts, i.e. their function of predilection (the concrete protection of fundamental rights). A broad conception of "implementation of the Law of the EU" (which is a condition for the applicability of the Charter) mechanically diminishes the possibility of activating the competency of Constitutional judges in terms of protecting fundamental rights. Obviously, this generates new disagreements. [25] How will the Court of Justice react to this strategic position taken by the German Constitutional Court which unanimously considered that the Åkerberg Fransson ruling set a solution that was limited to the criminal procedure and meaning of the ne bis in idem principle?

2.2. Technical factors

The second factor is more specific as it relates to technical considerations. In other words, it stems from procedural particularities in every Member State's constitutional justice system. Constitutional changes in each country explain why in Belgium, [26] France [27] or Italy, [28] the configuration of new competencies for Constitutional Courts allowed preliminary references. It should be underlined that the Belgian Constitutional Court has become the "preliminary procedure champion" and the relationship hence established with the CJEU is one of the most structured and regular. [29]

Let us look at France. The decision by the Conseil constitutionnel - an uncommon area of continental constitutionalism - to refer the Jérémy F. case [30] to the Court of Justice for a preliminary ruling on 4 April 2013 was a "little revolution" in France. As in Spain, it spawned intense doctrinal debate. It was a major change in the French constitutional procedural landscape that led to a change of course in 2013.

For a long time, the vast majority of legal doctrine gave technical reasons for the "non preliminary reference" related to the constitutionality review which takes place a priori in France. Everyone appeared to agree that the preliminary reference procedure before the Constitutional Council that judges the conformity of the law to the Constitution - was impossible as "referral" to the Court did not belong to the "referrers", no "party" was brought before the constitutional judges, there was no "complaint", no motivation was necessary, there was no interest in taking legal action and no conclusions… [31] How was it possible then to stay the proceedings in order to refer a question about interpretation or validity of the Law of the EU for a preliminary ruling? The preliminary reference procedure was clearly inconceivable with regard to a constitutionality review taking place a priori. The technical argument appeared well-founded. Arguably, it still is… but a dramatic change occurred with the Constitutional reform of 2008 and the subsequent setting up of the famous "QPC" for "Question prioritaire de Constitutionnalité" (priority question of constitutionality). A reviewa posteriori appeared in France. [32] Thanks to this new procedural setting, everything became possible. However, whilst the referral of the Jérémy F. case - which received broad media coverage and dealt with rules for implementing the European arrest warrant - [33] was possible through the QPC procedure, it seems that French constitutional architecture will continue to prevent the preliminary reference procedure from becoming widespread. The Conseil constitutionnel felt that it should, or had to, trigger the preliminary reference procedure because of the wording of Article 88(2) of the French Constitution (as provided for by the Constitutional Law of 25 March 2003). According to this provision, " [s]tatutes shall determine the rules relating to the European arrest warrant pursuant to acts adopted by the institutions on the European Union." The Conseil constitutionnel considered that it could not rule on the Court of Cassation's QPC without first referring to the Court of Justice an interpretation issue about the Framework Decision. In doing so, it set responsibilities: the constitutional review for the Conseil constitutionnel and interpretation of the EU Law for the Court of Justice. Incidentally, during a seminar held at the Conseil constitutionnel - an example of dialogue with academia as A. Paterson mentions in his book - Nicole Belloubet, the only member of today's Constitutional Council to be a Professor of Public Law, suggested that this interpretation was correct.

2.3 Accumulation of reasons: between power and technique

Some cases suggest it is a mixture of power and technical reasons that make a Constitutional Court "take the plunge" and formally establish a dialogue with the Court of Justice. In Italy, those two reasons came successively. The first preliminary reference was made for technical reasons; the second one revealed the will "to be heard" and contribute to the "constitutional dialogue" in Europe.

For a long time, the jurisprudence of the Italian Constitutional Court suggested it did not consider itself "a Member State jurisdiction" that could trigger the preliminary reference mechanism provided by Article 267(3) TFEU (former Article 234 EC). [34] The argument was simple: The Court considered it was not a court "like the others" i.e. ordinary courts that applied Community as well as domestic law.

The change took the form of two rulings of 12 February 2008 (n°102 and 103). [35] The matter brought before the Court of Justice, on the basis of Article 134 of the Constitution was Sardinian regional legislation that provided for the taxation of some stopovers by aircraft or recreational craft. The tax was only imposed on persons whose tax domicile was outside the region. The State claimed that the regional tax legislation violated the freedom to provide services and the law of State aid. Contrary to a well-established jurisprudence, the Constitutional Court considered itself "a Court of a Member State" which could and did activate in casu the preliminary reference procedure and give its interpretation of EU Law. [36] The reason for this overturn lies in the particular configuration of the dispute. Under the new Article 117(1) of the Italian Constitution - as a result of the constitutional reform of 2001 - the Constitutional Court is competent to deal with disputes opposing the State to a region or to one of the two autonomous provinces of Trento and Bolzano. [37] In other words, such disputes are not brought before ordinary judges via a constitutionality question. In this case, the Constitutional Court acts as first and last authority and must abide by Article 117(1) which constitutionalises obligations derived from the Law of the EU. [38]

The Italian constitutional make-up does not explain the second preliminary reference of 18 July 2013, activated by a constitutionality question. [39] The procedural context was totally different in 2008. The new case is innovative in many ways. The Constitutional Court seems to be implying that, apart from the very specific cases where it acts as first and last instance in vertical disputes (State vs. regions), it is willing to fully play the "integrated dialogue" game with the Court of Justice.

Until now, it was the doppia pregiudizialità (double preliminary reference) system that ruled the triangular relationships between ordinary judges, the Constitutional Court and the Court of Justice. [40] When ordinary judges had to deal with a case where the constitutionality of domestic legislation depended on the interpretation of the Law of the EU, they had to refer it to the Court of Justice (following the Simmenthal case philosophy). Such cases were brought before the Constitutional Court only once the Court of Justice had rendered its ruling. These long and complex proceedings attracted much criticism. Therefore, the change implied by the order of 18 July 2013 - about a case on the Italian legislation on rights and obligations of school personnel - [41] was particularly important. Sadly, what strikes the reader is the absence of any clear understanding of preliminary reference in relation to this change. The Court effectively reduced the significance of the preliminary reference. It stated it had not only already resorted to the procedure when the case was brought before it but it is also one of the "courts" that can trigger the mechanism in the framework of a constitutionality question. There are two possible reasons for such an attitude. [42] The first one is general and systemic. The Court has taken note of the new relationship between European and national courts, notably due to the strengthening of material interaction. This has partly been driven by the adoption and subsequent entry into force of the Charter of Fundamental Rights. As mentioned in the first part of this article, a court can adhere to constitutional dialogue to make its voice heard and be amongst judicial stakeholders that "count". The second reason is more technical and pragmatic: it is about preventing the Italian State's responsibility from coming into play because it refuses to refer a case to the European Court. This would reveal the effects of the Köbler case law. [43] These two types of explanation can easily be combined. In any case, if Italy takes the path of a minimum complexity application of the preliminary reference procedure, it will be following its Belgian counterpart … the leader in such matters.

3. The follow-up to constitutional dialogue

Once Constitutional Courts have referred one or several questions to the Court of Justice and it has rendered its preliminary ruling, how do the guardians of the Constitution follow up on the answer from the judges of the Kirchberg Plateau? It is an important question: It reveals whether or not constitutional judges intend to enter era of dialogue in a constructive manner, intend to best apply or not European Law as "judges loyal to the Union" without renouncing their constitutional role. Will their primary concern be to preserve States interests by making the best use of the opportunities deriving from the Court's ruling or will they openly choose a pro integrationae approach? This is important to decipher but not easy to do as it requires immersion in the peculiarities of every legal system. However, when one is brave enough to do this, it shows the jurisdictional reality and all aspects of the dialogue.

The Belgian example is the obvious one. Their Constitutional Court is undoubtedly a leader. [44] As of 9 February 2015, it had referred 26 cases to the Court of Justice for a preliminary ruling. [45] Dialogue is calm, durable, open and shows that an intertwining of systems has become commonplace - the last word does not belong to one court alone but in way to all. Four examples will be analysed to demonstrate that the "narrow" canal of the preliminary reference procedure actually has great virtues.

Following judgments in various cases, ASBL [46] (discrimination based on sex in relation to insurance premiums and benefits), Bressol and Chaverot [47] (access to university education in the medical and paramedical area), Base NV and Others [48] (universal service relating to electronic communications and services) and I.B. [49] (European arrest warrant), the Constitutional Court implemented answers provided by the Court of Justice in its preliminary reference rulings dealing with the interpretation of EU Law (Base NV and Others, Bressol and Chaverot, I.B.) as well as the assessment of its validity ( ASBL). The Belgian Constitutional Court's dialogical empathy is striking: It is an unambiguous "loyal judge to the Law of the EU" whilst still being a brilliant and subtle Constitutional judge. In each case, it resorts to an interpretation of secondary law that complies with the Constitution. Therefore, its dual loyalty (towards the Constitution and EU Law) is not a problem. There is no "duel" between allegiances. In short, the Belgian Constitutional Court is undoubtedly an excellent "partner" [50] of the Court of Justice.

In the case dated 27 January 2011, [51] the Constitutional Court exceptionally aligned with the CJEU preliminary ruling (CJEU, 6 October 2010, SA Base, C-389/08) on the reference of 8 September 2008 about interpretation of Article 12 of the Universal Service Directive of 7 March 2002 (Directive 2002/22/EC). The case was interesting since the CJEU delivered on the very same day (6 October 2010) a judgment establishing Belgium's failure to fulfil its obligations (case No C-222/08) to implement the Universal Service Directive correctly. For that reason, it would have been surprising, had the Constitutional Court ignored the preliminary ruling as well as the judgment on failure as both coincide on the substance. As a consequence, its decision was very clear:

"Following on the motivation of the aforementioned rulings by the Court of Justice, the legislature, by treating all operators in the same way, as stated by the Council of Ministers in its briefs and the supplementary brief submitted after the Court of Justice's judgments, and as resulting from the travaux préparatoires (Doc. parl., Chambre, 2006-2007, DOC 51-2873/011, p. 3), by regarding any net costs resulting from the obligation to apply social tariffs as representing, for the undertakings concerned, an unfair burden which must necessarily give rise to compensation, without carrying out a specific assessment of the net cost which the provision of universal service represents for each operator concerned, failed to fulfil its obligations under Article 13 of the Universal Service Directive. In as much as the legislature treats all operators in the same way, whereas Articles 12 and 13 of the Universal Service Directive provides for a differentiated treatment of operators in concreto, it has also violated the principle of equality and non discrimination guaranteed by Articles 10 and 11 of the Constitution. Under this principle, categories of persons who find themselves in a different situation with regard to the concerned measure must not be treated in the same way unless there is a reasonable justification for doing so." (Point B. 10, unofficial translation)

To breach the Law of the EU is to breach the Constitution. The equation can only function if Constitutional Law is analysed and interpreted in the light of European standards.

In the case of 24 February 2011, [52] the Belgian Constitutional Court once again follows the interpretation given by the Court of Justice (CJEU, 21 October 2010, I.B., C-306/09) relating to European arrest warrant implementation. [53] The Constitutional Court - to which the matter had been referred by the judge a quo (the court from which the cause had been removed) - asked whether Member States could make surrender to the judicial authorities of the issuing State of a person residing on their territory who is the subject of an arrest warrant for the purposes of the execution of a sentence imposed in absentia, subject to a condition that that person be returned to the executing State in order to serve there the custodial sentence or detention order imposed by a final judgment against that person in the issuing State. In its I.B. ruling, the Court of Justice held that it was possible for a Member State to subject the execution of an arrest warrant to such condition. According to the CJEU, by providing that execution of the European arrest warrant may be refused if "the requested person is staying in, or is a national or a resident of the executing Member State" or "if a person who is the subject of a European arrest warrant (…) is a national or resident of the executing Member State", Article 4(6) and 5(3) of the Framework Decision have "the objective of enabling particular weight to be given to the possibility of increasing the requested person's chances of reintegrating into society" (I.B., C-306/09, at point 52). In this context, the Belgian Constitutional Court gave a pro integrationae interpretation of the Belgian Law of 2003 transposing the Framework Decision on the European arrest warrant. Interestingly, it did so by presenting two possible interpretations: one contrary to the Constitution (and therefore contrary to the Law of the EU); the other in line with the Constitution (and thus with the Law of the EU). [54] According to this approach, it will be very difficult for the court a quo to discard the interpretation which is in line with both the Constitution and the Law of the EU…

In its Bressol and Chaverot judgment issued on 31^st May 2011, [55] the Belgian Constitutional Court only partly invalidated the decree adopted by the French Community of Belgium on 16 June 2006 which governs the number of students not considered as resident in Belgium who may enrol in its institutions of higher education for some medical and paramedical courses. The limited number of students not considered as resident in Belgium was thus maintained. It was not a defiant stance towards the answer given by the Court of Justice. On the contrary, the Constitutional Court subtly used the derogation stated by the CJEU. In its judgment of 13 April 2010, it had itself ruled that a difference in treatment, as established by the French Community decree, based indirectly on nationality, may be justified to fulfil the objective of maintaining a balanced, high quality medical service open to all, in so far as it contributes to achieving a high level of protection of health. The CJEU considers it is for the referring court to establish that there are genuine risks to the protection of public health. Applying the different criteria stated by the Court of Justice, the Constitutional Court, based on figures provided by the French Community Government, assessed for each curriculum whether the restrictive legislation could be regarded as appropriate and proportionate for attaining this goal. Regarding the curricula of physiotherapy and veterinary medicine, the Constitutional Court based its judgment on several studies and lists of professions affected by skill shortages. The Court first observed a shortage of physiotherapists in the French Community as well as an excessive number of students of veterinary medicine, thus revealing a risk for public health. The Court then verified that the limited number of students considered as non resident has effectively allowed - and would allow in the future - the number of physiotherapists to rise and to improve the quality of education provided to veterinary physicians. Finally, assessing whether the restrictive legislation was proportionate, the Constitution Court held that firstly, it allowed for a wide access to the concerned education (on average 10% students considered non resident) and secondly, the system of drawing lots aimed to pick non resident students was not controversial (contrary to a selection system based on application or by order of registration). However, the Court invalidated the decree with regard to other curricula (midwives, ergotherapy, etc.) because of insufficiently precise figures showing a diminishing quality of education for these curricula. Therefore, it is on the basis of an extremely detailed analysis respectful of the CJEU that the Constitutional Court put an end to a very sensitive political case that received wide media coverage in Belgium and France…

In its ruling of 30 June 2011 - issued soon after the Court of Justice invalidated Article 5(2) of Directive 2004/113 in its ASBL judgment of 1^st March 2011 - the Constitutional Court aligned with the CJEU's case law. It even went further than invaliditing a sole provision. The Court considered that "review is stricter where the fundamental principle of gender equality is at issue" (at B.11 in fine) and did not hesitate to repeal the entire law that meticulously transposed Directive 2004/113, [56] whilst also aligning with the temporal flexibility provided by the Court of Luxembourg. Showing concern for coherence (with the CJEU) and (legal) pragmatism, it ruled that:

"Like the Court of Justice, the Court considers the provision of a transitional period appropriate. On the one hand, it will allow insurance companies to adapt to the new conditions deriving from the present ruling and the ruling of the Court of Justice issued on 1^st March 2011 and to modify their products accordingly; on the other hand, it should be taken into account that to retroactively repeal the concerned law, and in particular its Article 3, would in effect resuscitate the former Article 10 of the aforementioned law of 10 May 2007, of which paragraph 3 limited the validity of the authorised derogation by the first paragraph of the said Article 10 to the 21 December 2007. The decision to give the legislature the faculty and time to intervene again allows it to determine whether distinctions based on sex in relation to insurance premium and benefits as of the date at which the prohibition will take effect also applies or not to contracts concluded before the said date - an issue on which the parties diverge. B. 16.2. The effects of the repealed legislative provisions are thus retained until 21^st December 2012 the latest." (Unofficial translation)

Such examples demonstrate that dialogue between the highest courts (in this instance the Belgian Court) and the Court of the Union can be very productive and result in full agreement.

4. Conclusion

The field of legal studies on the new dialogical relations between the Court of Justice and Constitutional Courts deserves to be further explored. Whilst dialogue through the preliminary reference seems to be in order, all methodological tools will be necessary - notably comparative law - in order to be able to decipher it without missing its meaning or its implications for European integration.

This brief exercise shows that, aside from the sociological expressions of the dialogue emphasised by A. Paterson in his book, a focus on strictly legal interactions may also be very revealing, especially when they are between the guardians of the Constitutions and the Court of Justice of the Union.