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

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Constitutional Review in Europe: A Comparative Analysis
 9781472561596, 9781849463850

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 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

xxxii  TABLE OF CASES

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.

14  THE ROLE OF NON-JUDICIAL ACTORS

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).



COUNCILS OF STATE AND CHANCELLORS OF JUSTICE 17

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).



COUNCILS OF STATE AND CHANCELLORS OF JUSTICE 19

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



COUNCILS OF STATE AND CHANCELLORS OF JUSTICE 21

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.

22  THE ROLE OF NON-JUDICIAL ACTORS

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).

24  THE ROLE OF NON-JUDICIAL ACTORS

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.



PARLIAMENT AND ITS COMMITTEES 25

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

26  THE ROLE OF NON-JUDICIAL ACTORS

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.



PARLIAMENT AND ITS COMMITTEES 27

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.

28  THE ROLE OF NON-JUDICIAL ACTORS

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.



PARLIAMENT AND ITS COMMITTEES 29

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.

30  THE ROLE OF NON-JUDICIAL ACTORS

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.



PARLIAMENT AND ITS COMMITTEES 31

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.

32  THE ROLE OF NON-JUDICIAL ACTORS

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



HEADS OF STATE 35

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.



HEADS OF STATE 39

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



HEADS OF STATE 41

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



THE PEOPLE 43

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).

44  THE ROLE OF NON-JUDICIAL ACTORS

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



THE PEOPLE 45

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).

46  THE ROLE OF NON-JUDICIAL ACTORS

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.



THE PEOPLE 47

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

48  THE ROLE OF NON-JUDICIAL ACTORS

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).



REASONS BEHIND THE RISE OF ADJUDICATION 59

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.

177

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

208



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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).



FOUR PURPOSES SERVED BY CONSTITUTIONAL ADJUDICATION 183

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).



FOUR PURPOSES SERVED BY CONSTITUTIONAL ADJUDICATION 185

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.



FINAL COMPARATIVE REMARKS AND REFLECTIONS 191

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.



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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.



FINAL COMPARATIVE REMARKS AND REFLECTIONS 201

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