165
Third working session — The future prospects
but they hesitate to open a formal judicial dialogue through the preliminary
ruling procedure.
The European Court of Justice’s success in developing a trustful coopera-
tion (
24
) with lower national courts hopefully will involve over time also the
highest national supreme and constitutional courts.
Generally speaking, a more generous attitude towards preliminary rulings
on the part of supreme and constitutional courts would benefit European in-
tegration and, more importantly, the further development of the fundamental
rights of the individual. In a pluralistic context as is Europe, the preliminary
ruling is an invaluable tool for national supreme and constitutional courts
to bring different traditions, experiences, modes of reasoning and points of
view before the Court of Justice, and thereby contribute to the formation of a
richer
jus commune europaeum
. The Treaty states that the preliminary ruling
is a duty and an obligation for the supreme courts, but, actually, it is above all
a great opportunity.
A good example of recent times comes from the Spanish Tribunal con-
stitucional, with the
Melloni
case
(
25
)where the ECJ was required to decide
about the validity of the framework decision on the European Arrest Warrant
with the procedural rights of a person subject to criminal proceedings pro-
tected by the Charter of fundamental rights, Articles 47 and 48. Moreover the
European Court was required to decide about the interpretation of Article 53
of the EU Charter proposed by the Spanish Constitutional Tribunal as grant-
ing a general authorisation to a Member State to apply the standard of protec-
tion of fundamental rights guaranteed by its constitution when that standard
is higher than that deriving from the Charter and, where necessary, to give
it priority over the EU legislation. Thanks to this preliminary reference, the
European Court of Justice was required to address straightforward two genu-
ine fundamental constitutional issues. In fact the Spanish Tribunal, on the
one hand, proposed to the European Court of Justice a rights-based judicial
review of European legislation and, on the other one, put forward a puzzling
problem of standard of protection of fundamental rights in the multilevel and
pluralistic constitutional context, as the European one.
(
24
) This point is highlighted by A. Tizzano,
Il nuovo ruolo delle corti supreme nell’ordine politico
e istituzionale: la Corte di giustizia dell’UE
, in
Diritto dell’Unione europea,
2012, pp. 811-
849.
(
25
) ECJ judgment of 26 February 2013 in Case C-399/11,
Melloni
.
