Abstract
The Court’s decisions in van Gend en Loos, Costa, Internationale Handelsgescllschaft and Simmenthal have established a rule of recognition that stipulates validity and effectiveness criteria for what is to be deemed the law of the Union and its lands and have, thus, created an autonomous jurisdiction of a federal nature. The efficacy of claims for supremacy, primacy and direct effect of Union law advanced therein depend on the uniform effectiveness of this law in the Union’s constituent jurisdictions. Only when enforced as supreme law by all Member States’ national courts may Union law be deemed effective. The definition of a court of last instance that the Court provided in Lyckeskog and confirmed in Cartesio falls short of guaranteeing the effectiveness and foreseeability of the individual litigants’ access to the proper standard of judicial protection in each of the Union’s varied constituent jurisdictions. Consequently, the scope and the quality of enforcement of Union law varies from one Member State to another, thereby undermining uniform effectiveness as a crucial element of Union’s law supremacy over national laws. The Court should reconsider its case-law in Lyckeskog and Cartesio so as to make it more attentive to the differences between Member States relating to their high courts’ willingness and capacity to let Union law penetrate their juridical orders enough to make it supremely effective.
Member of Parliament of the Slovak Republic; Head of the Jurisprudence Department at the Trnava University School of Law; Member of the Presidium of the Slovak Chamber of Attorneys. I would like to thank Alexander Patsaouras of UCLA and Michal Bobek of Oxford University for their help with an earlier draft of this article. All remaining defects are my own responsibility.
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- 1.
Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ECR 1.
- 2.
Case 6/64 Flaminio Costa v. E.N.E.L. [1964] ECR 585.
- 3.
Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125.
- 4.
Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 642.
- 5.
Case C-99/00 Criminal proceedings against Kenny Roland Lyckeskog [2002] ECR I-4839.
- 6.
Case C- 210/06 Cartesio Oktató és Szolgáltató bt. [2008] ECR I-9641.
- 7.
See Kahn 2011.
- 8.
For practical purposes, I shall refer to all four decisions jointly as the Simmenthals decisions, meaning all of them unless I explicitly refer to them individually.
- 9.
I shall use "Union" to refer to the Community, too, unless otherwise indicated. Similarly, I shall refer to the basis for the preliminary reference procedure as Article 267, instead of distinguishing between ex Article 234 and current Article 267.
- 10.
Kahn 2011, p. 39.
- 11.
Ibid., p. 47.
- 12.
Schmitt 2005, p. 10.
- 13.
Kahn 2011, p. 48.
- 14.
Ibid., p. 50.
- 15.
Opinion of Advocate General Roemer delivered on 12 December 1962, pp. 18–19.
- 16.
Ibid., p. 23.
- 17.
See Craig and de Búrca 2003, p. 278.
- 18.
Hartley 1998, p. 196.
- 19.
Ibid., p. 197.
- 20.
Ibid., p. 196.
- 21.
Opinion of Advocate General Lagrange delivered on June 25, 1964, p. 602.
- 22.
For more detail, see Hart 1994, Chap. VI.
- 23.
Ibid., p. 106.
- 24.
Opinion of Advocate General in Case C-507/08 European Commission v. Slovak Republic, § 44.
- 25.
Marbury v. Madison, 5 U.S. 137 (1803).
- 26.
For a meta-legal analysis of Marbury, see, e.g. Kahn 1997.
- 27.
Even Ronald Dworkin, one of the more ardent supporters of judicial review, says that "it does not follow as a matter of iron logic that the Supreme Court should have the power to decide when these limits have been transgressed. For the Constitution might have been interpreted as laying down directions to Congress, the president, and state officials that these officers had a legal as as well as a moral duty to follow, but making them their own judges." See Dworkin 1986, p. 355.
- 28.
The literature on this is vast, for a theoretical perspective, see, e.g. Bellamy and Castiglione 1997.
- 29.
- 30.
One might also want to distinguish between autonomy and autopoiesis. While "autonomy" means the capacity to give oneself a law and, thus, freedom from being ruled by someone other than oneself, "autopoiesis" means both systemic and operational closure of such rule from other sources of rule-producing acts. An order (or a system) may be autonomous and yet not autopoietic if it is self-created by an act of sovereign authority but is not immune from the incorporation of rules produced by other law-making actors. The important thing here is that it is the autonomous entity that decides on the nature and the degree of this systemic and operational closure/openness and does so by deciding for, and on the content of, the rule of recognition. Going back to Hart for a moment, there does not have to be only one type of source of primary rules within a given jurisdiction; there may be several such types. (For a more expansive account of types and sources of (validity of) norms, see, e.g. Pattaro 2005; Shiner 2005) What matters is that there is one supreme criterion of validity/effect for all these sources, such as that established by Simmenthals. In other words, a lack of autopoiesis does not necessarily entail a lack of autonomy and sovereignty; it may consist, simply, in the fact that the sovereign authority established an order that is capable of incorporating into itself rules made by other entities than the authority itself. This is precisely what national states do with regard to international public law when they establish in their own constitutions the rules under which norms of international public law have, e.g. direct effect and/or direct applicability in their own jurisdictions or precedence over national statutes. (This does not mean that the international public law does not stipulate its own validity criteria. Both the establishment and the enforcement of these international rules of recognition, however, are conceptually different from the Court's single-handed constitution-making performance in the Simmenthal decisions.) And it is, also, precisely what they are not allowed to do of their own will with regard to Union-made laws.
- 31.
For a hint of such argumentation, however, see Hartley, who claims that "national governments are prepared to accept rules of Community law which are against their interests, but benefit others, if other Member States are prepared to do the same when the balance of advantage is reversed." Hartley 1998, p. 185.
- 32.
See, e.g. Case 50/83 Commission v. Italy [1984] ECR 1633, 12.
- 33.
Therefore, it is possible that the federal rule of recognition itself allows the federation's members to determine the level of protection that they grant to particular rights or interests, thereby providing for a certain variance between these levels of protection. See, e.g. Case 110/05 Commission v. Italy [2009] ECR 519, § 65.
- 34.
See Hartley 1998, p. 185.
- 35.
See van Gerven 2000, p. 521.
- 36.
See Dougan 2004, p. 65.
- 37.
Ibid., pp. 65–66.
- 38.
Dougan suggests as much at various instances, such as when he claims that "even assuming that a provision of Community law has direct effect and the domestic courts are prepared to enforce it in preference to contradictory national rules, this may not in itself be sufficient to satisfy the underlying demands of either uniformity or effectiveness." Dougan 2004, p. 95.
- 39.
By authoritative I mean here not subject to effective contest. True, the acceptance of the Court's Simmenthals claims remains conditional in some Member States, Germany being the most prominent example. But these reservations do not in any way cut against the link between uniform efectiveness and supremacy, and to discuss them would require a wholly different article.
- 40.
See Dougan 2004, p. 3.
- 41.
See Hartley 1998, p. 185.
- 42.
In Slovakia, for instance, there is an explicit difference between admissibility grounds and extra-appellate grounds (the former make the extraordinary appeal admissible for examination on the merits, the latter make the contested decision capable of being repealed). More importantly, it is also possible for an appellate court (usually the Regional Court, and exceptionally also the Supreme Court) to allow for further review even if no other admissibility criteria are in place—a kind of writ of certiorari. Such writ is certainly in use in other jurisdictions, too. But while in the former instance the Supreme Court as the supra-appellate instance is bound by law in assessing admissibility, in the latter instance the appellate court is free to use its unfettered discretion in assessing whether the matter is important enough to warrant further review.
- 43.
See Case C-129/00 Commission v. Italy [2003] ECR 14367.
- 44.
See Bobek 2004, pp. 45 and ff.
- 45.
Judgment of the Constitutional Court in Case III. ÚS 151/07. Without referring to Lyckeskog, the Constitutional Court seems to suggest that in the case of a breach of the referral duty the Slovak Supreme Court should view this breach as an autonomous ground for hearing the extraordinary appeal, this ground being the wrong composition of court under Section 237 (g) of the Civil Procedure Code. This is perfectly in line with the Court's caveat allegedly pronounced in Lyckeskog that if interpretation of Union law is central to the matter at hand, the supreme court should grant the leave to appeal on this very basis. See Zetterquist 2008, p. 128.
- 46.
Judgment of the Constitutional Court in Case III. ÚS 207/09.
- 47.
Ironically or not, in claiming that extraordinary appeal to the Supreme Court was the way to go for the petitioner, the Constitutional Court referred to rulings of the Supreme Court which suggested to the contrary. In both decisions to which the Constitutional Court refers in the above ruling, the Supreme Court states that the wrong composition of court does not refer to the determination of who is the lawful judge in the case but rather relates to a division of competencies between a single judge and a panel of judges. In explaining this ruling in a non-forensic explanatory note, the Supreme Court explicitly says the following: "There is no wrong composition of court if the party's right to a lawful judge was breached, i.e. if the case was tried and decided by a different judge than that determined by the assignment schedulu. Any breach of such right creates the possibility of petitioning the Constitutional Court, but does not make extraordinary appeal admissible under Section 237 (g) of the C.P.C." Decisions of the Supreme Court of the Slovak Republic in Case 4 Cdo/1998 and Case 13 Obdo/2001.
- 48.
Judgment of the Constitutional Court in Case II. ÚS 136/08.
- 49.
See Decision of the Supreme Court of the Slovak Republic in Case 3 Cdo 10/2010.
- 50.
See Judgment of the Constitutional Court in Case III. ÚS 207/09.
- 51.
See Judgment of the Constitutional Court in Case IV. ÚS 206/08.
- 52.
See, e.g. judgments of the Constitutional Court cited supra in notes 46, 48, 50.
- 53.
There is in fact a way to square these holdings with basic logic as the Slovak Code of Civil Procedure excludes certain categories of decisions from either extra-appellate review or appellate review. The Constitutional Court, however, does not discuss this, and the facts of the given cases do not make this option pertinent.
- 54.
Lenaerts and Corthaut 2004, p. 29.
- 55.
See Eliantonio 2009, p. 7.
- 56.
See Dougan 2004, p. 98.
- 57.
- 58.
Case C-129/00 Commission v. Italy [2003] ECR 14367.
- 59.
It should be added here that the Court has managed considerably to reduce the length of Article 267 proceedings in the recent years.
- 60.
Kahn 2011, p. 64.
- 61.
Ibid., p. 75.
- 62.
Ibid., p. 77.
- 63.
Ibid., p. 83.
- 64.
See, e.g. Case 166/73 Rheinmühlen-Düsseldorf v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1974] ECR 33. For a discussion of other related cases, see Bobek 2010.
- 65.
For a discussion of the mythical nature of the Member States' procedural autonomy, see, e.g. Bobek 2011 and sources cited therein.
- 66.
These also include orders relating to the management of proceedings.
- 67.
See Dougan 2004, p. 27.
- 68.
Ibid., p. 45.
- 69.
Needless to say, the Member States differ in this respect and in some jurisdictions sub-supreme courts may be more active than the supreme ones in fostering their colloquy with the Court. In other jurisdictions, especially those of the recently admitted Member States, the contrary seems to be the rule.
- 70.
See Dougan 2004, pp. 200 and ff.
- 71.
Kahn 2011, p. 58.
- 72.
Ibid., p. 84.
- 73.
Ibid., p. 39.
- 74.
Ibid., p. 50.
- 75.
Hart 1994, p. 110.
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Procházka, R. (2013). To Decide or Not To Decide: On the Political Theology of Simmenthal, Lyckeskog et al.. In: The Court of Justice and the Construction of Europe: Analyses and Perspectives on Sixty Years of Case-law - La Cour de Justice et la Construction de l'Europe: Analyses et Perspectives de Soixante Ans de Jurisprudence. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-897-2_19
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