164
Marta Cartabia
Troisième séance de travail — Les perspectives
court. Considering that the protection of fundamental rights ensured by the
Charter of the EU largely overlaps with that granted by national constitu-
tions – as we have seen earlier – the same national legal provision might be
challenged before the ECJ, for violating the Charter (and other principles of
European law), and before the national supreme and constitutional courts, for
breach of the rights protected by the national constitution. Where a national
measure falls under the umbrella – or the penumbra – of EU legislation, cases
of ‘double preliminary rulings’
are rather frequent.
Which Court should decide first, if any?
Although the traditional attitude of the national supreme and constitu-
tional courts is to keep the final say on each dispute, a number of reasons
would suggest a more flexible attitude, with the national courts deciding first,
in order to have the opportunity to remove all unconstitutional national legal
provisions and thus preserving the European courts from unnecessary deci-
sions, and in order to have the opportunity to cooperate with their judgments
to a better understanding of the case in front of the ECJ.
Attention was drawn to this issue by the French Cour de cassation
in the
Melki and Abdeli
case (
22
), about
la question prioritaire de constitutionnalité
in
France. In that decision, the ECJ established certain conditions for the com-
patibility of legislation such as the French measure in question with Article
267 TEU, leaving the door open for several solutions.
c. Another critical point – strictly connected to the previous one – con-
cerns the traditional reluctance of national supreme and constitutional courts
to engage in direct dialogue with the ECJ through the preliminary ruling pro-
cedure provided in Article 267 TEU. Some courts have regularly referred ques-
tions to the European Court of Justice by means of preliminary rulings, like
for example the Belgian Cour d’arbitrage and the Austrian Verfassungsgericht;
others only in exceptional cases; others yet have enunciated the possibility of
addressing the European Court, but have not yet used it in practice; and most
courts remain silent on the point. Usually, national constitutional courts ac-
cept the informal influence of the European Court of Justice’s case-law (
23
),
(
22
) ECJ judgment of 22 June 2010 in Joined Cases C-188/10 and C-189/10,
Melki and Abdeli
.
(
23
) A critique to the informal relations among European courts as a part of a more general
critique to the pluralist model of relationship in the European Union comes from J. Baquero
Cruz,
The Legacy of Maastricht Urteil and the Pluralist Movement,
14
European Law Journal
,
(2008), p. 389, at p. 414.
